in Re Travelers Lloyds Insurance Company

In re Travelers Lloyds Insurance Company IN THE TENTH COURT OF APPEALS No. 10-01-360-CV IN RE TRAVELERS LLOYDS INSURANCE COMPANY Original Proceeding                                                                                                                 MEMORANDUM OPINION                                                                                                                       Our Supreme Court has rejected “an inflexible rule that would deny the trial court all discretion and . . . require severance in every case [involving bad-faith insurance claims], regardless of the likelihood of prejudice.” Liberty Nat. Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex. 1996) (orig. proceeding). Thus, the question of whether to sever and abate lies within the discretion of the trial judge. Id.       Our decision to deny the petition for a writ of mandamus in this instance is based primarily on two factors. First, unlike the situation in Texas Farmers Ins. Co. v. Stem, 927 S.W.2d 76 (Tex. App.—Waco 1996, orig. proceeding), there will not be a trial on the breach-of-contract issues—those are the subject of a partial summary judgment in favor of the insured. Second, unlike the situation in Mid-Century Ins. Co. of Texas v. Lerner, 901 S.W.2d 749 (Tex. App.—Houston [14th Dist.], orig. proceeding), the record before us indicates little likelihood that, were the breach-of-contract issues to be appealed and reversed, the claim would be remanded for trial. It appears that the damages are liquidated in one of two amounts: $384,313.72, if the “other insurance” clause allows the company to prorate the loss, or $700,000, if the insured is entitled to the full policy limits. The question appears to be one of law.       The petition for writ of mandamus is denied. Relator’s motion for temporary emergency relief is also denied.                                                                          BILL VANCE                                                                          Justice Before Chief Justice Davis,       Justice Vance, and       Justice Gray       (Justice Gray dissenting) Petition denied Opinion delivered and filed November 1, 2001 Publish [CV06] a href="#_ftn1" name="_ftnref1" title="">[1] sufficiency of the evidence. Specifically, C.S. asserts that the evidence was insufficient to show that the cost of repairing the vehicle was in excess of $1,500 because the body shop estimator was not an expert and there was pre-existing damage to the vehicle. He also argues that the evidence was insufficient to show that he was the person who committed the offense. Standard of Review When reviewing a challenge to the legal sufficiency of the evidence to establish the elements of the penal offense that forms the basis of the finding that the juvenile engaged in delinquent conduct, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); In re S.S., 167 S.W.3d 108, 111 (Tex. App.—Waco 2005, no pet.). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of the fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S. W.2d 839, 843 (Tex. Crim. App. 1991). Instead, our duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Matson, 819 S.W.2d at 843. In a factual sufficiency review, we ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the factfinder's verdict clearly wrong and manifestly unjust. Watson v. State, 204 S.W.3d. 404, 414-15 (Tex. Crim. App. 2006); In re S.S., 167 S.W.3d at 112-13. Pecuniary Loss A person commits the offense of criminal mischief if, without the consent of the owner, he intentionally and knowingly damages or destroys the tangible property of the owner. Tex. Pen. Code Ann. § 28.03(a) (Vernon 2003). Criminal mischief includes as an element the value of the injury inflicted. See id. § 28.08(b); Gallardo v. State, 167 Tex. Crim. 511, 321 S.W.2d 581, 581 (1959). The amount of pecuniary loss determines the punishment range for the offense. See Tex. Pen. Code Ann. § 28.03(b) (Vernon 2003). C.S.'s first and second issues, in part, contend that Devall's testimony is not legally and factually sufficient to prove the cost of repairs because Devall was not qualified to give an expert opinion on repair costs. A lay opinion about repair costs by an individual who is not competent to give an expert opinion, but is merely giving his "off-the-wall" lay opinion, is not sufficient to prove pecuniary loss.  See Elomary v. State, 796 S.W.2d 191, 193 (Tex. Crim. App. 1990). Conversely, an expert opinion on a repair estimate given by a witness, such as an insurance adjuster, who is qualified to testify as to the fair market value of the expected repair cost is sufficient to prove the pecuniary loss. See id. In this case, Devall, the body shop estimator, testified that the actual cost to repair the vehicle without the pre-existing damage was $4,702.76. The State qualified Devall as an expert by establishing that he had been in the body shop estimation business for over ten years and had specific experience in repairing the type of damage that was done to K.W.’s vehicle. Devall testified that at the time of the incident he was working at Collision Specialists and that he had previously worked for other body shops doing repair estimation. He stated that in terms of training, there is no body shop estimation certification and that most experience comes from on-the-job training. He also testified that when doing estimates, he uses a computer program called Pathways, a standard program used exclusively by all of the body shops he has worked at. Devall testified that he examined and evaluated the damage to K.W.’s truck and felt that the damage was consistent with vandalism done by rock throwing. He testified that he submitted his estimate to the insurance company and that when the vehicle was repaired they submitted a check to Collision Specialists. We find that Devall's testimony on the cost to repair the automobile is sufficient to prove the fair market value of that cost.[2] C.S. also argues that the repair work included all dents and scratches on the car, including the pre-existing damage to the vehicle. However, Devall and K.W. each testified that repair of the pre-existing damage was billed separately. Additionally, the insurance adjuster’s claim report was entered into evidence, indicating that the insurance company had reviewed the body shop estimate and found the damages to be consistent with K.W.’s vandalism claim. Moreover, even after deducting the cost to repair the pre-existing damage to the vehicle—which Devall testified would cost a maximum of $1,500—the remaining repair costs still exceeded $1,500. Identification Challenge The second part of C.S.’s evidentiary sufficiency challenge questions whether the State offered legally and factually sufficient evidence to prove that he is the person who damaged K.W.’s truck. Thus, C.S. challenges the legal and factual sufficiency of the evidence to prove identity. Identity may be proved by direct or circumstantial evidence.  In fact, identity may be proven by inferences. Lockwood v. State, 237 S.W.3d 428, 432 (Tex. App.—Waco 2007, no pet.). When there is no direct evidence of the perpetrator's identity elicited from trial witnesses, no formalized procedure is required for the State to prove the identity of the accused. Proof by circumstantial evidence is not subject to a more rigorous standard than is proof by direct evidence. For the purposes of proving guilt beyond a reasonable doubt, direct and circumstantial evidence are equally probative. Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—Beaumont 2001, no pet.) (quoting Roberson v. State, 16 S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref'd)). Here, the jury heard both direct and circumstantial evidence in the identification of C.S. C.S. claims that K.W. testified that he did not know C.S.’s name and that he only knew him from seeing him in the hallways at school. However, at trial K.W. stated that he was unaware of only C.S.’s last name, and that when describing C.S. to Moreland in order to determine C.S.’s last name, he described him as “the one that comes in the classroom every now and again from the classroom that’s across the hall.” C.S. claims that he had only been in Moreland’s classroom once, upon invitation to watch a movie and eat pizza with his teacher Vance Hughes. However, Moreland later corroborated K.W.’s testimony by stating that C.S. had come into his classroom on several occasions without permission and that C.S. had been invited for pizza and a movie. This evidence, though conflicting, is some evidence that C.S. was correctly identified. C.S. also argues that the evidence is insufficient because on the police report made by Officer Pappas it lists C.S. as a white male. Although no evidence was presented to explain this discrepancy, substantial other evidence could have been used by the jury to infer that C.S. was in the group that threw rocks at the truck. Both Moreland and Hughes testified that no one at the school resembles C.S. They both also testified that C.S. knew S.N., one of the other students identified in the incident. Although C.S. testified that he does not know S.N. and had never spoken with him, Hughes said that on several occasions S.N. would come by his class to let C.S. know that he was leaving. He also testified that he has seen S.N. and C.S. talking and that he knows that they know each other. C.S. later testified that the reason he does not “run around” with S.N. is because he “had a fight with him before.” C.S.’s own testimony is conflicting. C.S. also argues that he could not have been the one throwing rocks at K.W.’s truck at 11:35 a.m. on March 9 because he does not get out of class until noon on Monday through Thursday and when he does get out of class, Hughes waits with him to be picked up. Hughes however testified that he allows C.S. to leave class at 11:30 a.m. almost every day so that he can take his lunch break. When C.S.’s father, who regularly picks up C.S. from school, was asked whether Hughes was with C.S. on a regular basis while he was waiting outside to be picked up, he stated that he was not sure because he “can’t see through the vehicle.” We find more than enough evidence to support the jury’s findings. The jury, weighing the evidence and credibility of the witnesses, made the determination that C.S. committed the offense. Because the evidence is legally and factually sufficient, we will not disturb that finding. C.S.’s first and second issues are overruled. Expert Testimony In his third issue, C.S. asserts that the trial court erred in failing to conduct a “gatekeeper hearing” to determine if Devall was qualified to testify as an expert over his objection. C.S. argues that he objected to Devall’s expert testimony, and despite that, the trial court did not act upon its responsibility to be a gatekeeper and evaluate whether Devall’s testimony was relevant and reliable to aid the jury. The State argues that C.S. failed to make this particular objection at trial and therefore waived this complaint. When the State’s expert, Devall, testified, the prosecutor asked several questions regarding the witness’s training and experience and then tendered the witness as an expert. C.S. objected as follows: I don’t know why he’s being tendered as an expert for. Is it for the art of estimating or the body damage? That’s not clear here. He’s - he just indicated he has no certifications, no formal training. What he does know about is what he picked up in the shop, so we would object to presenting him as an expert.  Trial counsel did not ask the court to conduct a “gatekeeper hearing” outside the presence of the jury. After overruling C.S.’s objection the trial court stated: Generally, under Texas law, the witness will go forward as an expert, unless formally objected to or challenged. So he does not necessarily need to be tendered to the Court. So we’ll go forward. If you have an objection to an opinion, or if you wish to have any type of gatekeeper hearing, you can make the request at the appropriate time.  Even after being prompted, C.S. did not ask the court to conduct a “gatekeeper hearing.” Further, when a copy of the estimate performed by Devall, containing his opinions as to the cost of the repair of the vehicle, was entered into evidence, C.S. stated that he had no objection and the exhibit was admitted. To preserve a complaint for appellate review, a party must make a timely objection, stating the specific grounds of the objection. Tex. R. Evid. 103(a)(1); Tex. R. App. P. 33.1(a); In re M. P., 220 S.W.3d 99, 101 (Tex. App.—Waco 2007, pet. denied); see also In re E.M.R., 55 S.W.3d 712, 716 (Tex. App.—Corpus Christi 2001, no pet.) (holding the appellant failed to preserve a complaint regarding admission of statement by failing to object at trial on the same grounds as he was complaining on appeal). Because C.S. did not ask the trial court to conduct a “gatekeeper hearing,” he has failed to preserve this complaint. Furthermore, when the written version of Devall’s testimony was admitted without objection, any error was rendered harmless. Beaumont v. Basham, 205 S.W.3d 608, 622 (Tex. App.—Waco 2006, no pet.). Construing C.S.’s argument as a challenge to Devall’s qualifications, we refer to our earlier discussion regarding Devall’s knowledge and experience. We review the trial court’s admission of expert testimony for an abuse of discretion. Weatherred v. State, 15 S.W.3d 540, 542 (Tex. Crim. App. 2000).  Because we have determined that the record established that Devall had extensive experience and knowledge in the area of body shop estimation, we hold that it was not an abuse of discretion for the trial court to allow him to testify as an expert. We overrule C.S.’s third issue. Conclusion Having overruled C.S.’s three issues, we affirm the trial court's judgment.  BILL VANCE Justice    Before Chief Justice Gray,            Justice Vance, and            Justice Reyna (Chief Justice Gray concurs with a note)* Affirmed Opinion delivered and filed January 30, 2008 [CV06]  *(Chief Justice Gray expressly disagrees with the discussion in footnote 1 regarding preservation of factual sufficiency complaints in juvenile proceedings. The discussion in that footnote, in large part, surrounds two potential issues not presented to us for decision: 1) ineffective assistance of trial counsel for the failure to file a motion for new trial asserting factual insufficiency prior to withdrawal; and 2) lack of the assistance of counsel at a critical stage of the proceedings. We should be more careful to not let those two issues muddy the water on deciding whether in a juvenile proceeding preservation of a factual insufficiency issue must be preserved by a complaint raised in a motion for new trial. For a discussion of the proper method for consideration of that issue, see In re C.O.S., 988 S.W.2d 760 (Tex. 1999). See also In re B.L.D., 113 S.W.3d 340 (Tex. 2003). Of course, as the footnote states, the prior holding of this Court is that “juvenile proceedings are not exempt from this requirement.” Further, Chief Justice Gray questions whether the discussion of Devall’s expertise in estimating automobile body repair is necessary. Devall is a person with personal knowledge of a relevant fact – that the actual cost, not an estimate, to repair the vehicle without the pre-existing damage was $4,702.76. With these observations, Chief Justice Gray concurs in the judgment of the Court but a separate opinion will not be issued.)  [1] C.S. failed to file a motion for new trial challenging the factual sufficiency of the evidence, and the State urges that he failed to preserve this ground for review. See Tex. R. Civ. P. 324(b); In the Matter of M.R., 858 S.W.2d 365, 366 (Tex. 1993). We have previously held that “juvenile proceedings are not exempt from this requirement.” See In re J.A.A., 2003 Tex. App. LEXIS 10880, No. 10-03-00012-CV, 2003 WL 23120184, at *1 (Tex. App.—Waco Dec. 31, 2003, no pet.) (mem. op.) (not designated for publication) (indicating a motion for new trial raising a factual sufficiency challenge is required). However, we note that in this case the judgment was signed on April 25, 2007, giving C.S. thirty days from that date in which to file a motion for new trial. Tex. R. Civ. P. 329b(a); Tex. Fam. Code Ann. § 56.01(b) (Vernon 2002). Approximately two weeks after the judgment was signed, C.S.’s attorney asked to withdraw. Nine days later, the court allowed him to, and a new attorney was not appointed until after the deadline to file the motion for new trial had expired. Therefore, in light of the split by the courts of appeals on whether a motion for new trial is required in juvenile cases, and in the interest of justice, we will address the issue. See In re O.G.J., No. 03-05-00806-CV, 2006 Tex. App. LEXIS 11000 at *7, (Tex. App.—Austin Dec. 20, 2006, no pet.) (mem. op) (factual sufficiency point reviewed in the interest of justice even though appellant failed to raise the issue in a motion for new trial); Compare In re D.J.H., 186 S.W.3d 163, 166 (Tex. App.—Fort Worth 2006, pet. filed) (citing In re J.B.M.,157 S.W.3d 823, 827-28 (Tex. App.—Fort Worth 2005, no pet.) (en banc)) (motion for new trial necessary to preserve factual sufficiency ground); In re F.F.G., No. 03-05-00854-CV, 2006 Tex. App. LEXIS 10306, at *4-5 (Tex. App.—Austin Nov. 29, 2006, no pet.) (motion for new trial only required to preserve complaints about the factual sufficiency of the evidence supporting jury findings); In re J.L.H., 58 S.W.3d 242 (Tex. App.—El Paso 2001, no pet.) (concluding that a motion for new trial raising a factual sufficiency challenge is not required in juvenile cases).   [2] The State is not required to prove that the cost of repair was reasonable. See Kinkade v. State, 787 S.W.2d 507, 509 (Tex. App.—Houston [1st Dist.] 1990, no pet.); Dorado v. State, 943 S.W.2d 94, 96 (Tex. App.—Corpus Christi 1997, no pet.).  However, this issue is not before us.