                                NO. 07-09-0236-CV

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                  AT AMARILLO

                                     PANEL D

                              SEPTEMBER 17, 2010


                                KAREN RUTLEDGE,

                                                             Appellant
                                         v.

            CLINT ISLEY, Individually, CALVIN MICHELSON, Individually
                          and CBRC PROPERTIES, LLC

                                                             Appellees
                         ___________________________

            FROM THE 207TH DISTRICT COURT OF COMAL COUNTY;

       NO. C2003-1175B; HONORABLE CHARLES R. RAMSAY, PRESIDING


                              Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      Karen Rutledge (Rutledge) questions the trial court’s directed verdict and

appeals from a judgment entered against her.      She had sued Clint Isley, Calvin

Michelson, and CBRC Properties (collectively referred to as “CBRC”) for damages

allegedly arising from construction defects in a condomimium she bought from them.

CBRC also appeals the trial court’s refusal to award them attorney’s fees since they
believed themselves to be prevailing parties. We reverse the judgment and remand the

cause.

         Background

         Rutledge purchased a condominium from CBRC Properties in July 2002.

Several months after doing so, she complained of alleged defects in the construction of

the property. The defects included the continual leaking of water into the abode from

under walls and through window frames. CBRC attempted to address the complaints,

and its efforts to repair the defects were unsuccessful in part. Water or moisture still

penetrated through outside walls and a window. This resulted in “growths” appearing at

one or more of the sites experiencing the leakage. Pictures admitted into evidence also

showed the presence of large “coffee” colored stains running atop baseboards and up

walls in the guest bedroom area. According to Rutledge,

         [i]n the window in the -- in the guest bedroom/office, it is totally stained all
         the way, top, bottom, sides, windowsill, carpet, everything. The blinds are
         covered. It looks like somebody threw a tub of coffee grounds at it. It has
         a smell. When you go into that room, it’s quite poignant.

         Rutledge also encountered electrical defects, or at least she so testified. These

included light switches failing to activate lights until some time (in several instances,

hours) after being engaged. Once, the lights came on at night after she had fallen

asleep. When they did, she awoke suddenly, was startled, and screamed.

         All the defects, and conditions they created, went unremedied despite requests

to have them cured. They also led Rutledge to abandon the condominium, secure

alternate living quarters, and incur expense related to obtaining those alternate

quarters.


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       Despite evidence of the foregoing being proffered to the jury, CBRC moved for a

directed verdict.   They contended that Rutledge had failed to present evidence of

damages. This was allegedly so because she tendered no expert testimony about the

costs of repairing the defects or the difference in value between the condominium as

represented by CBRC and as it actually was. Such evidence purportedly was elemental

to her causes of action. The trial court agreed and found “that there’s not a proper

measure of damages.” Thus, it granted an instructed verdict in favor of CBRC and

discharged the jury. It also refused to grant CBRC’s request for attorney’s fees as a

prevailing party per the sales agreement.

       Directed Verdict

       We initially address whether the trial court erred in directing a verdict because

there was no “proper measure of damages.” In doing so, we note that the applicable

standard of review is akin to that used in assessing the legal sufficiency of the evidence.

City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005). It requires us to examine the

evidence in a light most favorable to the party suffering the adverse judgment and

decide whether there is any evidence of probative value to raise an issue of material

fact. Exxon Corp. v. Emerald Oil & Gas Co., L.C., No. 05-1076, 2009 Tex. App. LEXIS

113 at *23 (Tex. March 27, 2009). That is, we credit favorable evidence if reasonable

jurors could do so and disregard contrary evidence unless reasonable jurors could not.

City of Keller v. Wilson, 168 S.W.3d at 827.

       The record before us discloses that Rutledge alleged various causes of action via

her live pleadings. One implicated the Deceptive Trade Practices Act and its provisions

relating to deceit and breached warranty. A claimant who successfully pursues such

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claims normally is entitled to recover economic damages.       TEX. BUS. & COMM. CODE

ANN. §17.50(b)(1) (Vernon Supp. 2009). Within the latter measure are compensatory

damages for pecuniary loss, including costs of repair and replacement. Id. §17.45(11).

Within the category of pecuniary loss falls the measure of damages known as loss of

use. Under it, one may recoup expenses related to acquiring alternate means to do that

denied him by the deceptive trade practice. For instance, the reasonable expense of

renting an automobile has been held to fall within the category. Allied Towing Service v.

Mitchell, 833 S.W.2d 577, 585 (Tex. App.–Dallas 1992, no writ) (stating that the

reasonable rental value of a substitute vehicle is sufficient evidence of actual damages),

accord Milt Ferguson Motor Co. v. Zeretzke, 827 S.W.2d 349, 358 (Tex. App.–San

Antonio 1991, no writ) (stating the same). So too can it include the expense of having

to pay a mortgage on a second house acquired because the first was not completed as

promised. Norwest Mortg., Inc. v. Salinas, 999 S.W.2d 846, 864 (Tex. App.–Corpus

Christi 1999, pet. denied).

       Here, Rutledge testified that she lost the use of her home from November 2006

through the date of trial due to the defects and the conditions resulting therefrom, or at

least a reasonable jury could have so interpreted her testimony. She further stated that

during the period she had to pay rent on an apartment for one year at $995 per month,

that then she had to make payments on a house at the rate of $1,545 per month

through trial, and that while those payments were being made she had to continue

paying the $878 monthly mortage payment on her condominium. Like the defendant in

Allied, CBRC said nothing about Rutledge being unqualified to testify about the

reasonableness of those expenses. Nor did it object on the basis that they were not

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indicative of the reasonable value of acquiring alternative living quarters while the

construction defects remained existent. Additionally, we see little difference between

Rutledge having to acquire alternative living quarters and Mitchell (in Allied) having to

acquire a rental car, or Salinas (in Norwest) having to buy another home due to a

purported deceptive trade practice. So, like the panels in those cases, we too hold that

the evidence proffered by Rutledge and illustrating what she paid to live elsewhere was

some evidence of loss of use and, therefore, of some actual damages. Given this, the

trial court harmfully erred in granting the directed verdict on the basis it did.

       Finally, because the appellate issue raised by CBRC (that is, whether it was a

prevailing party entitled to attorney’s fees) was and is dependent upon our affirming the

directed verdict, we need not consider it. Accordingly, the final judgment of the trial

court is reversed and the cause is remanded.



                                                   Brian Quinn
                                                   Chief Justice




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