Monday, August 13, 2007

Argueta v. Banales (Tex.App.- Houston, Aug. 2, 2007)

Cesar Argueta v. Mercedes Banales, No. 01-06-00191-CV, (Tex.App.- Houston [1st Dist.] Aug. 2, 2007)(Opinion by Justice Hanks)(PI-Auto, negligence)(Before Justices Nuchia, Hanks and Bland)
Appeal from Co Civil Ct at Law No 1 of Harris County
Trial court judge: Hon. Jack Cagle


In this auto accident case, the jury found that Mercedes Banales, appellee, negligently caused damage to Cesar Argueta's, the appellant's, car. In his sole issue, Argueta asserts that the final judgment was erroneous because (1) there was no evidence or pleadings to support the jury's finding of a total loss, (2) he is entitled to rental costs that the jury awarded to him, and (3) the trial court incorrectly calculated costs and interest. We vacate the judgment and remand the case to the trial court for entry of a new judgment.


On March 10, 2005, cars driven by Argueta and Banales collided. Argueta sued Banales to recover for the damage to his 1994 Toyota Corolla involved in the collision. At trial, Argueta testified that his car was repairable. However, the trial court instructed the jury to disregard any testimony regarding the repair cost because "you're required to have someone who is in that profession who can testify what a reasonable cost of repairs would be."

The jury found Banales negligent for the collision. The jury also found that (1) the difference in the market value of Argueta's car before and after the collision was $1,800; (2) Argueta was entitled to $1,100 for rental car charges; and (3) Argueta's car was a total loss. In its final judgment, the trial court awarded Argueta $1,800 plus costs and interest and noted that, "since the jury would [sic] the vehicle was a total loss, Plaintiff is not entitled to damages for his use of a rental car." Argueta appeals the entry of this judgment.

Total Loss and Award of Rental Car Charges

In his sole issue, Argueta argues that the trial court's final judgment is erroneous because there was no evidence or pleadings to support the jury's finding of total loss and the final judgment should have included his rental car charges. We disagree.

The jury's finding of total loss was immaterial to the final judgment entered in this case. In other words, even if the jury had found that Argueta's car was repairable and not totally destroyed, the final judgment entered by the trial court would be the same. Argueta would not have been awarded his rental car charges.

When a person's property is not totally destroyed, two alternative measures of damages may be used to calculate damages for the injury to the property. A plaintiff may recover the diminution in value of the article, calculated as the difference in the market value of the property before and after the accident. Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 236, 294 S.W.2d 375, 376-77 (Tex. 1956). In the alternative, a plaintiff may elect to recover the reasonable cost of repairing the property. Pasadena State Bank v. Isaac, 149 Tex. 47, 51, 228 S.W.2d 127, 129 (Tex. 1950). If cost of repair damages are sought, damages for loss of use of the property may also be recovered. Berry Contracting v. Coastal States Petrochem., 635 S.W.2d 759, 761 (Tex. App.--Corpus Christi 1982, writ ref'd n.r.e.); Exp. Ins. Co. v. Herrera, 426 S.W.2d 895, 901 (Tex. Civ. App.--Corpus Christi 1968, writ ref'd n.r.e.). Loss of use damages include rental costs and charges. See Luna v. N. Star Dodge Sales, Inc., 667 S.W.2d 115, 119 (Tex. 1984); Mondragon v. Austin, 954 S.W.2d 191, 193 (Tex. App.--Austin 1997, pet. denied). However, it has long been established that loss of use damages are recoverable only if the plaintiff seeks recovery for cost of repair damages; they are not available as a separate measure of damages when the plaintiff seeks recovery for diminution in value. See Cogbill v. Martin, 308 S.W.2d 269, 271 (Tex. Civ. App.--Waco 1957, no writ) (citing Pasadena, 149 Tex. at 51, 228 S.W.2d at 129).

A plaintiff may not recover (1) the difference in the value of the property immediately before the injury and immediately after the injury and before repairs as well as (2) the cost of repairs and for loss of use. Such a recovery would constitute an impermissible double recovery. Parkway Co. v. Woodruff, 901 S.W.2d 434, 441 (Tex. 1995) (holding that homeowner had to choose between diminution in market value of home and cost to repair).

In this case, Argueta elected to seek, and the jury found, damages calculated as the diminution in market value of his car before and after the accident. Argueta elected not to pursue damages for costs of repair. Accordingly, regardless of whether the jury found that the car was repairable, Argueta could not recover damages for loss of use, i.e., rental car charges, because he did not seek damages for costs of repair. See Cogbill, 308 S.W.2d at 271. In light of Argueta's submission to the jury under the measure of damages theory of recovery, the jury's finding of total loss was immaterial and could have been properly disregarded by the trial court in its judgment. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994) (holding that a jury question is immaterial when it should not have been submitted or when it was properly submitted but has been rendered immaterial by other findings). The final judgment correctly excluded an award of Argueta's rental car charges.


Argueta next contends that, in addition to the actual damages awarded by the jury, he is entitled to $212 in costs through trial. The clerk assessed $162 in costs, and, after trial, Argueta asked the costs to be retaxed. The request was denied. On appeal, Banales agrees that Argueta should be awarded $212 in court costs.

Costs, within the meaning of Rules 125 through 149 of the Rules of Civil Procedure, are those items in the clerk's bill of costs. Tex. R. Civ. P. 125-149. In response to a request for an award of costs, the trial court's role is to determine which party or parties is to bear the costs of court, not to adjudicate the correctness of specific items. Reaugh v. McCollum Exploration Co., 167 S.W.2d 727, 728 (Tex. 1943). The inclusion of specific items taxed as costs is a ministerial duty performed by the clerk. Id. Correction of errors in specific items of costs is sought by a motion to retax costs. Id.

Allocation of costs is a matter for the trial court's discretion and cannot be overturned on appeal unless the trial court abused its discretion. Univ. of Houston-Clear Lake v. Marsh, 981 S.W.2d 912, 914 (Tex. App.--Houston [1st Dist.] 1998, no pet.). Unless the trial court makes a finding of good cause, an abuse of discretion is shown when costs are not allocated according to the provisions of Rule 131. (1) Id.

Argueta was entitled to recover his entire court costs under Rule 131 in the amount agreed to by the parties because he was successful in his negligence claim and because the trial court did not make any finding relating to good cause.

Prejudgment Interest

Argueta contends that he is entitled to prejudgment interest on $2,900 ($1,800 + $1,100) at a rate of 5% per annum, in simple interest, from March 26, 2005 to December 5, 2005. The final judgment, which was rendered on December 6, 2005, provided for pre-judgment interest as follows:

Simple pre-judgment interest is calculated, per annum, from March 26, 2005, the day suit was filed, until November 30, 2005 when a jury verdict was rendered. Prejudgment interest is calculated as follows:

March 26, 2005 to November 30, 2005 - $38.50
Total prejudgment interest: $38.50

The interest between December 6, 1997 [sic] and September 6, 1998 [sic] is calculated at a rate of ten (5%) [sic] percent per annum on Eighteen Hundred Dollars ($1,800.00) for a period of five months and four days.

The pre-judgment interest is to be added to the jury award to bring the total judgment to One Thousand, Eight Hundred, Thirty Eight Dollars and/50 Cents ($1,838.50).

Here, the rate and means of calculating interest is determined as a matter of law. See Tex. Fin. Code Ann. § 304.104 (Vernon 2006). Under section 304.104, prejudgment interest accrues "during the period beginning on the earlier of the 180th day after the date the defendant receives written notice of a claim or the date the suit is filed and ending on the day preceding the date judgment is rendered." Id. Section 304.104 "applies only to a wrongful death, personal injury, or property damage case." Id. § 304.101.

There is no dispute that the pre-judgment interest began accruing on March 26, 2005, the day that suit was filed. Pre-judgment interest should have stopped accruing, however, on December 5, 2005, the day preceding the date judgment was rendered, not on November 30, 2005, "when the jury verdict was rendered." Accordingly, we reform the judgment to reflect 5% interest on $1,800 from March 26, 2005 to December 5, 2005. (2)

Postjudgment Interest

Argueta also contends that he "is entitled to postjudgment interest on all amounts, in compounded interest, at a rate of 5% per annum from December 6, 2005 until paid in full." The final judgment provided for postjudgment interest as follows:

"IT IS FURTHER, ORDERED, ADJUDGED AND DECREED that Plaintiff, CESAR BANALES, [sic] have and recovery [sic] post-judgment interest on this judgment at the interest rate of ten
percent (5%) [sic] per annum from the date used entered until it is paid."

Postjudgment interest on a money judgment accrues during the period beginning on the date the court renders judgment and ending on the date the judgment is satisfied. Tex. Fin. Code Ann. § 304.005(a) (Vernon Supp. 2006). Postjudgment interest, unlike prejudgment interest, is not an element of the measure of damages in a personal injury case. Univ. of Tex. Med. Branch at Galveston v. York, 808 S.W.2d 106, 112 (Tex. App.--Houston [1st Dist.] 1991) rev'd on other grounds, 871 S.W.2d 175 (Tex. 1994). Instead, postjudgment interest is compensation allowed by law for the use or detention of money computed from the date of the rendition of a judgment until the date of its satisfaction. Tex. Rev. Civ. Stat. Ann. art. 5069-1.05, § 3(a) (Vernon Supp.1991). When a judgment debtor makes a timely, unconditional tender of payment of the judgment, no postjudgment interest will be allowed. Trevino v. City of Houston, 695 S.W.2d 289, 291 (Tex. App.--Houston [1st Dist.] 1985, writ ref'd n.r.e.).

Banales responded that Argueta "is not entitled to postjudgment interest as [Banales] tendered the amount of judgment immediately after it was signed." A tender, to be effective, must be legally valid; it must be unconditional; and it is without legal effect if it is accompanied by conditions which the debtor has no right to impose. Baucum v. Great Am. Ins. Co. of New York, 370 S.W.2d 863, 866 (Tex. 1963); e.g., Plasky v. Gulf Ins. Co., 160 Tex. 612, 616, 335 S.W.2d 581, 583-84 (Tex. 1960). The burden of proving a valid tender is on the party asserting it. Rozelle v. First Nat'l Bank in Dallas, 535 S.W.2d 768, 771 (Tex. Civ. App.-- Waco 1976, writ ref'd n.r.e.); e.g., Bus. Aircraft Corp. v. Elec. Communications, Inc., 391 S.W.2d 70, 71 (Tex. Civ. App.--San Antonio 1965, writ ref'd n.r.e.). Here, there is no verification in the record that Banales unconditionally tendered the amount of the judgment. (3) Furthermore, given our holding regarding prejudgment interest, the amount of the judgment will be reformed.


We order the clerk to retax the costs, and we remand this case to the trial court to calculate prejudgment interest consistent with this opinion and correct the judgment to reflect the correct interest rate. In all other respects, we affirm the trial court's judgment.

George C. Hanks, Jr.
Panel consists of Justices Nuchia, Hanks, and Bland.

1. "The successful party to a suit shall recover of his adversary all costs incurred therein, except where otherwise provided." Tex. R. Civ. P. 131.
2. We have already determined that Argueta was not entitled to the additional $1,100.
3. The record does contain a copy of a letter that Banales sent to Argueta's attorney. Attached to the letter is a copy of the check for the judgment. The letter indicates that the check will be released once Argueta signs a power of attorney releasing the car, and once he produces the original title for the car. The record is silent as to whether the check was actually given to Argueta.

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