
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN





NO. 03-99-00146-CV





Alice Villegas, and Margaret Villegas Individually and as Next Friend of

Kiva Hewson, a Minor, Appellants


v.


Nationwide Mutual Insurance Company, Appellee





FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. 98-07056, HONORABLE ERNEST C. GARCIA, JUDGE PRESIDING






	Appellants Alice and Margaret Villegas, individually and as next friend of Kiva
Hewson, a minor, sued appellee Nationwide Mutual Insurance Company ("Nationwide") for
breach of contract.  The jury found in favor of appellants and awarded substantial monetary
damages, but the trial judge set aside the jury's verdict and rendered judgment that appellants take
nothing. (1)  We affirm the judgment n.o.v.

BACKGROUND	In 1997, Keith Villegas and his wife Melissa purchased a personal automobile
insurance policy from Nationwide to insure their two vehicles, a 1994 Mazda Protégé and a 1993
Ford Ranger truck.  The policy took effect on June 13, 1997, and expired on December 13, 1997. 
The policy provided uninsured/underinsured motorist coverage whenever a "covered person"
sustained bodily injuries in an accident.  "Covered person" included the named insureds, Keith
and Melissa; persons living in the same household as Keith and Melissa and related to them by
blood, marriage, or adoption; and persons occupying the "covered auto."  The policy defined
"covered auto" as the Protégé and the Ranger, as well as "[a]ny auto . . . you do not own while
used as a temporary substitute for any other vehicle described in this definition which is out of
its normal use because of its: (a) breakdown; (b) repair; (c) servicing; (d) loss; or (e) destruction."
	Beginning in May 1997, Keith and Melissa began experiencing engine and brake
problems with the Protégé.  They did not repair the vehicle; instead, they limited their use of the
Protégé to shorts trips near their home in Round Rock and a twenty-mile round trip to and from
work approximately once a week.
	On July 12, 1997, Keith and Melissa drove their Ford Ranger from Round Rock
to Alice Villegas's home in Austin.  Alice is Keith, Sharon, and Margaret Villegas's mother. 
Margaret and her daughter, Kiva Hewson, were living with Alice at the time.  The family planned
to travel to New Braunfels for a birthday party.  Upon arriving at Alice's home, Keith learned that
Alice's Oldsmobile Cutlass was inoperable.  Alice instructed Keith and his sister Sharon to rent
a car to replace the Cutlass.  Keith and Sharon went to a nearby Enterprise Rent-A-Car and rented
a Nissan Maxima for three days.  Sharon paid with a credit card bearing the name of Alice's
business, A&P Bookkeeping, and listed Keith as an additional driver.  Keith drove Melissa, Alice,
Margaret, and Kiva to New Braunfels in the rented Maxima.
	On the return trip to Austin, Keith collided with a car driven by Nita Crober.  It
is undisputed that Crober's negligence caused the accident.  Alice, Margaret, and Kiva were rear-seat passengers at the time of the collision and were seriously injured. (2)  Crober's automobile
insurance policy was insufficient to fully compensate them for their injuries; thus, appellants
sought underinsured motorist coverage (3) under Keith and Melissa's Nationwide policy as persons
occupying a "covered auto." (4)  Nationwide refused coverage and appellants sued for breach of
contract.
	At trial, the jury was asked whether, at the time of the collision, Keith and
Melissa's Mazda Protégé was out of its normal use because of breakdown, repair, servicing, loss,
or destruction.  The jury answered affirmatively.  The jury was then asked whether at the time
of the collision, the rental car was being used as a temporary substitute for the Protégé.  The jury
again answered affirmatively and awarded Alice, Margaret, and Kiva $365,167.40, $511,810.81,
and $15,844.00, respectively.  Nationwide filed a motion to disregard jury findings and for
judgment notwithstanding the verdict, arguing that there was no evidence to support the jury's
findings that at the time of the accident (1) the Protégé was out of its normal use and (2) the rental
car was used as a temporary substitute for the Protégé.  The trial court granted the motion and
rendered a judgment n.o.v. in favor of Nationwide.

DISCUSSION	A trial court may disregard a jury's findings and grant a motion for judgment n.o.v.
only when there is no evidence to support one or more of the findings on issues necessary to
liability.  See Tex. R. Civ. P. 301; Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex.
1990); Oram v. State Farm Lloyds, 977 S.W.2d 163, 166 (Tex. App.--Austin 1998, no pet.).  In
reviewing a "no evidence" question, we consider all the evidence in the light most favorable to
the jury finding, indulging every reasonable inference in favor of the finding.  See Associated
Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998); Transportation
Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994).  If there is more than a scintilla of competent
evidence to support the jury finding, the judgment notwithstanding the verdict should be reversed. 
See Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995).  The evidence
supporting the finding amounts to more than a scintilla if it supplies a reasonable basis for
reasonable minds to reach differing conclusions as to the existence of the crucial fact.  See id.;
Moriel, 879 S.W.2d at 25; Orozco v. Sander, 824 S.W.2d 555, 556 (Tex. 1992).
	The parties agree that pursuant to the uninsured/underinsured motorist provision
of Keith and Melissa Villegas's personal auto insurance policy, the Maxima rental car can be
considered a "covered auto" only if it was used as a temporary substitute for a "covered auto" that
was out of normal use because of breakdown, repair, servicing, loss, or destruction.  Trial
testimony showed that the Villegas family planned to meet at Alice's home on July 12, 1997, and
travel to New Braunfels in her Oldsmobile Cutlass; however, the day before the trip Alice's car
broke down.  Keith testified that he and Melissa drove to Alice's home in his Ford Ranger truck,
and that he never expected to drive the family to the birthday party in his Protégé.  Keith also
testified that he did not realize a car needed to be rented until he arrived at Alice's home. 
Moreover, Keith testified that he did not sign the Enterprise rental agreement nor did he intend
to drive the rented Maxima after the trip to New Braunfels.  Finally, Keith testified that Alice
planned on using the Maxima for the full three-day rental period because her Oldsmobile was
inoperable. 
	The testimony of other Villegas family members bolsters the conclusion that the
Maxima was rented to replace Alice's inoperable Oldsmobile, not Keith's unreliable Protégé. 
Sharon testified that when she arrived at Alice's house on the morning of July 12, Alice told her
to rent a car to replace the Oldsmobile.  Sharon also testified that she paid for the rented Maxima
with a company credit card from Alice's business and that Keith did not sign the rental agreement. 
Moreover, Sharon testified that had the accident not occurred, Alice would have kept the Maxima
for the full three days it was rented.  Alice testified that she and Sharon had A&P Bookkeeping
company credit cards. (5)  Alice also testified that she gave Sharon permission to use the company
card to pay for the rental car, and that the company credit card statements were delivered to the
business address of A&P Bookkeeping.
	Appellants contend that although Alice's Oldsmobile was inoperable on July 12,
the need to rent a car arose only because Keith's Protégé was not dependable for long trips.  Keith
testified that when he arrived at Alice's home, he "found out that her car wasn't working and my
car wasn't operating, so it was--the decision was made to go and rent one." (6)  Keith also testified
that under normal circumstances, the Villegas family would have traveled to the birthday party
in the Protégé.  Sharon testified that if anyone in the family had a vehicle that could have been
driven to New Braunfels, that vehicle would have been used.  Appellants argue that this
testimony, in addition to testimony by Margaret and other family members that it was a Villegas
family "custom" to use Keith's Protégé for family outings, provides sufficient evidence to support
the jury's finding that the rented Maxima was a temporary substitute for Keith's Protégé.
	To affirm the judgment of the trial court we must determine that there was no
evidence of probative value upon which the jury could have made its findings.  See Andrews v.
Houston Lighting & Power, 820 S.W.2d 411, 413 (Tex. App.--Houston [14th Dist.] 1991, writ
denied).  Rule 301 does not require "'no evidence at all' but comprehends those situations in
which the evidence is deemed legally insufficient to establish an asserted fact."  See id.; Tex. R.
Civ. P. 301.  When the evidence offered to prove a vital fact is so weak as to do no more than
create a surmise or suspicion of its existence, the evidence is, in legal effect, no evidence.  See
Andrews, 820 S.W.2d at 413.
	Although appellants offered testimony at trial that Keith and Melissa's Mazda
Protégé was often used for family outings and would have been driven to New Braunfels had it
been operating in a reliable manner, this evidence does no more than raise mere surmise or
suspicion that the Maxima was rented as a temporary substitute for the Protégé on July 12.  See
Horton v. Horton, 965 S.W.2d 78, 86 (Tex. App.--Fort Worth 1998, no pet.) (evidence that
testator hallucinated at times was not evidence that he was incapacitated on the day the will was
executed).  No probative evidence was presented that would have allowed the jury to infer,
without undue speculation and conjecture, that the Maxima was rented as a substitute for the
Protégé that day. (7) See First Interstate Bank v. S.B.F.I., Inc., 830 S.W.2d 239, 251 (Tex.
App.--Dallas 1992, no writ); see also Duff v. Yelin, 751 S.W.2d 175, 176 (Tex. 1988).
 To the contrary, several members of the Villegas family, including Keith, testified
that the family intended to travel to the birthday party in New Braunfels in Alice's Oldsmobile. 
On the day of the party, Keith and Melissa drove to Alice's home in their Ford Ranger, leaving
the Protégé parked at their home in Round Rock.  The testimony at trial also showed that Keith
and Sharon went to Enterprise only after being instructed by Alice to rent a car to replace her
Oldsmobile.  Finally, the evidence established that Sharon rented the Maxima using a company
credit card and that the Villegas family intended for Alice, not Keith, to drive the rental car from
July 12 through July 15.
	Viewing all the evidence in the light most favorable to the jury's findings, we
conclude that there is no evidence that the Maxima was rented as a temporary substitute for Keith
and Melissa Villegas's Mazda Protégé.  Because appellants failed to carry their burden of proof
on one of the issues necessary to liability, a directed verdict would have been proper at the
conclusion of appellants' case.  As a result, we hold that the trial court did not err in granting the
judgment n.o.v. and affirm the judgment of the trial court.


  
					Jan P. Patterson, Justice
Before Justices B. A. Smith, Yeakel and Patterson
Affirmed
Filed:   December 16, 1999
Do Not Publish  Released for publication February 25, 2000.  Tex. R. App. P. 47.3(c).
1.   "[U]pon motion and reasonable notice the court may render judgment non obstante
veredicto if a directed verdict would have been proper, and provided further that the court may,
upon like motion and notice, disregard any jury finding on a question that has no support in the
evidence."  Tex. R. Civ. P. 301.
2.   Keith and Melissa were also injured in the collision but settled their claims with
Nationwide before trial.
3.   "The term 'underinsured motor vehicle' means an insured motor vehicle on which there
is valid and collectible liability insurance coverage with limits of liability for the owner or
operator which were originally lower than, or have been reduced by payment of claims arising
from the same accident to, an amount less than the limit of liability stated in the underinsured
coverage of the insured's policy."  Tex. Ins. Code Ann. art. 5.06-1, § 2(b) (West Supp. 1999).
4.   Before trial, the parties stipulated that Alice, Margaret, and Kiva had received insurance
payments from Crober's insurer totaling $32,000 for bodily injuries caused by the accident.  The
parties also stipulated that Alice and Margaret had received $150,000 in uninsured/underinsured
motorist benefits pursuant to automobile insurance policies issued by Trinity Insurance Company.
5.   Keith testified that he was employed by Texas Bone and Joint as a radiographer.
6.   Trial testimony established that the interior of the Ford Ranger truck Keith and Melissa
drove to Alice's home on July 12 was too small to seat five passengers.
7.   Appellants also contend the jury heard testimony that, sometime after the accident, Keith
reimbursed Sharon in cash for a portion of the rental car expense.  Appellants argue that this
testimony furnished a reasonable basis for the jury to conclude that the Maxima was rented as a
temporary substitute for Keith and Melissa's Protégé.  Assuming Keith did reimburse Sharon, we
fail to see how such a payment impacts the uncontradicted testimony that the Maxima was rented
to replace Alice's Oldsmobile Cutlass.


font-family: CG Times">'s Oldsmobile. 
On the day of the party, Keith and Melissa drove to Alice's home in their Ford Ranger, leaving
the Protégé parked at their home in Round Rock.  The testimony at trial also showed that Keith
and Sharon went to Enterprise only after being instructed by Alice to rent a car to replace her
Oldsmobile.  Finally, the evidence established that Sharon rented the Maxima using a company
credit card and that the Villegas family intended for Alice, not Keith, to drive the rental car from
July 12 through July 15.
	Viewing all the evidence in the light most favorable to the jury's findings, we
conclude that there is no evidence that the Maxima was rented as a temporary substitute for Keith
and Melissa Villegas's Mazda Protégé.  Because appellants failed to carry their burden of proof
on one of the issues necessary to liability, a directed verdict would have been proper at the
conclusion of appellants' case.  As a result, we hold that the trial court did not err in granting the
judgment n.o.v. and affirm the judgment of the trial court.


  
					Jan P. Patterson, Justice
Before Justices B. A. Smith, Yeakel and Patterson
Affirmed
Filed:   December 16, 1999
Do Not Publish  Released for publication February 25, 2000.  Tex. R. App. P. 47.3(c).
1.   "[U]pon motion and reasonable notice the court may render judgment non obstante
veredicto if a directed verdict would have been proper, and provided further that the court may,
upon like motion and notice, disregard any jury finding on a question that has no support in the
evidence."  Tex. R. Civ. P. 301.
2.   Keith and Melissa were also injured in the collision but settled their claims with
Nationwide before trial.
3.   "The term 'un