### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-16-00322- CV

Rebec a D. Balderas-Ram irez , Appellan t

v. Anthony Carl Fe lder, Appellee

F ROM TH E CO UNTY COURT AT LAW NO . 2 O F TRAVIS CO UNTY NO. C-1 -CV- 11- 0133 53, H ONO RAB LE ERIC SH EP P ERD, JUDGE P RESIDING

O P I N I O N

Rebec a D. Ba ldera s-Ramirez appea ls a final summary judgme n t that she take nothing

on claims she had asser

ted ag ains t An t h o n y Carl Fe lder following an automobile collision. The pivotal issues on appea l conce rn wh et h er Ba ldera s-Ramirez prese nted any competent evidence of
proper ty damag es—including sever al y ear s’ worth of clai med l oss-of-use damag es—and whether
any such damag es exceede d amounts for which she has alre ady been compensa ted by Fe lder’s insurance car

rier. We will af

firm the judg ment.

BACK GR OUND The collision in quest i o n occur red on or about Dec ember 18, 2011, when Fe lder

rea r-e nded Ba ldera s-Ramirez’s vehicle on the MoPac expressway . Wit hin a wee k there afte r, Ba ldera s-Ramirez filed suit ag ainst Fe lder, asser ting theories of neg lige nce and neg lige nce per se founded on alleg ed acts that included driving while intox icated. At the suit’s inc eption, Ba ldera s-Ramirez soug ht r ecove ry of alleg ed persona l-injury damag es, but those claims wer e settled within

a few months by Fe lder’s automobile insurance car rier, USAA. I n the meantime, Ba ldera s-Ramirez had also made a proper

ty -dama g e claim with U SAA. That claim did not settle, and she eventua lly amende d her ple ading s to seek re cover y of those alleg ed dama g es instead.
Ba ldera s-Ramirez had purcha sed the vehicle she had be en driving —a 1999 Toy ota 4Runner—about t h re e we eks prior to the collision. She purcha sed the 4Runner from a L are do used-c ar dealer , Z apata Auto Center, for a sale price of approximately $7,000

. T h e purcha se was eff ecte d throug h an installment-sales contra ct under which Ba ldera s-Ramirez made a $2,500 down
pay ment and ag ree d to satisfy the rema ining balanc e (including interest and financ e char g e) throug h monthly pay ments to Za

pata, the f irst of which wa s to come due on D ece mber 22, 2011 (less than one week after the collision). The contra ct also explicitl y g rante d Z apata

a security interest in the vehicle to se cure Ba ldera s-Ramirez’s debt. 1

T here is no dispute that the 4Runner was a total loss following the collision (i

. e. , repa ir, even if possible, would be economica lly i n fe as i b l e rela tive to the vehicle’ s value ), 2

Specifica lly , Ba ldera s-Ramirez ag ree d to the following term: 1 Security : To secur e all I owe on this contra ct and all my promises in it and any other debt I now owe y ou or in the future owe y ou, I g ive y ou a secur it y i n t er es t i n the motor vehicle be ing pur chase d. See J& D Towi ng, LLC v. Am. Alternative Ins. Corp ., 478 S.W .3d 649, 657 n.30 (Tex. 2 2016) (“ A vehicle is a ‘total loss’ when ‘it would not be absolutely impossibl e to re pair it, but the damag es are so extensive that repa ir would not be economica lly feasible.’” (quoting Morrison v. Campbell , 431 S.W .3d 611, 617 (Tex. App.—For t Worth 2014, no pet.)). 2tantam o u n t t o t he vehicle’ s total destruction. The g ener al measure of direc t damag es in such 3
instances is “the fair marke t value of the [vehicle] immediately befor e the injury at the place wher e the injury occur

red,” subject to a cre dit or offse t, equal to the vehicle’ s salvag e value, if the owner 4

reta ins the vehicle. “F air marke t va lue” is “ the price the proper ty will bring when offe red for sale 5 by one who desires to sell, but is not oblige d to sell, and is boug ht by one who desires t o buy , but is und er n o nece ssity of buy ing.” I n her suit, Ba ldera s-Ramirez soug ht rec overy of $7,000—the 6 approximate total price for which she had purcha sed the 4Runner, including both down pay ment and

cre dit—as the vehicle ’s “mar ket value” immediately

prior to the collision.
Ba ldera s-Ramirez also pray ed for $1,700 in “towing and storag e char g es,” plus “loss-of- use” damag es repr esente d by the cost to rent a repla ceme nt vehicle betwee n the date of the collision throug h trial and judgme nt. The claim for loss-of-use damag es would eventua lly become the most signific ant of all of Ba ldera s-Ramirez’s claims, at least in terms of financ ial stakes, beca use

See id

. (re co gn i z i n g that “total loss” of persona l proper ty is for damag es purposes the 3 equivalent of

literal total destruc tion of the proper ty (quoting Morrison , 431 S.W .3d at 617)). Id

. at 657 (citing Texas & Pacific Ry. Co. v. Levi & Bro. , 59 Tex. 674, 679 (1883); 4 Morrison , 431 S.W .3d at 6 1 4 ; Hartford Ins. Co. v. Jiminez , 814 S.W .2d 551, 552 (Tex. App.—Houston [1st Dist.] 1991, no writ)); see also id. at 656 (explaining that the “def ault rule” for measuring direc t damag es t o persona l proper ty , including motor ve hicles, is “the diff ere nce in the marke t value immediately befor e and immediately afte r the injury to such proper ty at the place wher e the damage was occasioned,” (quoti ng Pasadena Stat e Bank v. Isaac , 228 S.W .2d 127, 128 (Tex. 1950)), which reduc es to rec overy of the pre- collision fair marke t value when the vehicle is totally destroy ed). See id

. at 657 n.30; Labrador Oil Co. v. Norton Dr i l l i n g C o
. , 1 S.W .3d 795, 800 (Tex. 5 App.—Amar illo 1999, no pet.). P la in s Ca p it a l B a n k v
. M

a r ti n , 4 5 9 S. W. 3 d 5 5 0 , 5 5 6 ( T e x. 2 0 1 5 ) ( q u o ti n g Ci ty o

f H a r li n ge n 6 v
. E s ta te o f S h a r b o n e a u , 4 8 S. W. 3 d 1 7 7 , 1 8 2 ( T e x. 2 0 0 1 ) )

. 3her s u i t l i n ger ed unresolved for sever al y ear s. Eventually , in 2015, the suit was place d on the

dismiss al-for -wa

nt-of-pr osecution docket, but was reta ined on Ba ldera s-Ramirez’s motion and set for trial in ear l y 2 0 1 6

. And as that date approa ched, an additional key development bear ing on Ba ldera s-Ramirez’s loss-of-use- damag es claim occur red—the Texas Supreme Court handed down
J& D Towi ng, LLC v. American Alternative Insurance Corporati on , in which it held that loss-of-use 7 damag es could be rec overe d when persona l pr operty is totally destroy ed, reje cting a contra ry prior
preva iling under standing among Texas lower c ourts. 8

I n advanc e of the trial date, but afte r J& D Towi ng was dec i d ed , Fe lder filed the
summary -judg ment motion that beca me the basis for the judgme nt be ing challeng ed on appea l. I n his mo ti o n , F e ld e r a s s e r

te d b o th tr a d it io n a l a

n d n o - e v id e n ce g rounds challeng ing Ba ldera s-Ramirez’s entitlement to rec over a

ny of the prope rty

damag es she wa s seeking

. I n support of hi s traditional 9
g rounds, Fe lder pre sented e vidence that cente red on the claims-adjustment proce ss underta ken by
US AA on his behalf

. This evidenc e included a “mar ket evalua tion repor

t” prepa red for USAA,

478 S.W .3d 649. 7 See id. at 676 (following extensive analy sis of jurisprudential history and policy , holding 8 “that the owner of persona l proper ty that has been totally destroy ed may rec over loss-of-use damag es in addition to the fair marke t value of the proper ty immediately befor e the injury ”); cf. id

. at 662–63 (discussing lower court decisions “on the availability of loss-of-use damag es in total-destruc tion case s” and observing that “most courts of appea ls to consider this question have held that loss-of-use damag es are unavailable ”); Mondragon v. Austin , 954 S.W .2d 191, 1 9 3 , 1 9 5

– 9 6 ( T e x. App.—Austin 1997, pet. denied) (op. on reh’ g ) (ac knowled g ing, and later questioning in dicta, the “rule ” that loss-of-use da

mag es ar e not re cover able in a total- destruction ca se). Ba ldera s-Ramirez had also pray ed for exemplary damag es, and Fe lder moved for (and later 9 obtained) summary judgme nt as to t hat claim on the g rounds that Ba ldera s-Ramirez had no underly ing entitlement to a ctual damag es and that the prior settlement had exti ng uished the claim. Ba ldera s-Ramirez does not cha lleng e this portion of the judg ment on appea l. 4which prese nted an analy sis of the “ac tual cash value” of Ba ldera s-Ramirez’s vehicle immediately

prior to the collision, taking acc ount of its model y ear , mileag e at the time (171,219), other specific fea tures, history (e.g ., a prior acc ident), and the local-ma rket values of 4Runners having compar able fea tures. The repor

t concluded tha t the vehicle’ s actua l cash va lue had be en $5,750.
I n turn, as ref

lected in a Dec ember 2 3 , 2 0 1 1 , le tt e r f rom USAA to Ba ldera s-Ramirez’s counsel and an aff

idavit from the USAA claims repr esenta tive who handled the claim, also included
in Fe lder’s summary -judg ment evidenc e, US AA had decla red the vehicle to be a total loss and offe red to settle Ba ldera s-Ramirez’s proper ty -dama g e claim f

o r $ 6 ,194.68, an amount that purported
to compensa te her for the value of her vehicle, plus various taxes and fee s that would be associate d with obta ining a

repla ceme nt vehicle. The re is no contention that Ba ldera s-Ramirez acc epted this particula r offe r (she would later explain that she had demande d her full $7,000 purcha se price ), but
Fe lder prese nted evidenc e that Ba ldera s-Ramirez’s counsel did respond to a reque st made in th e letter that he provide USAA with the name, addre ss, and acc ount number of “the financ e company .”
On J anuar

y 9, 2 0 1 2 , co unsel faxed to USAA a copy of the installment-sales contra ct betwee n Ba ldera s-Ramirez and Z apata

. On the following day , USAA issued a chec k to Zap at a for $4,997.75—the total amount that Ba ldera s-Ramirez was to pay Z apata under the installment sales
contra ct—to fully

satisfy the debt and Z apata ’s cor responding secur ity

interest in the vehic le.
Fe lder also prese nted summary -judg ment proof to establish his rig ht to an offse t for the vehicle’ s salvag e value. This evidenc e ref lected that following the collision, B a ldera s-Ramirez’s

wre cked 4Runner had been towed and stored by Pronto Wrecke r Service , wher e it h ad rema ined

5during the claims-adjustment proce ss. I n his aff idavit, the USAA claims repr esenta tive rec ounted 1 0
that Ba ldera s-Ramirez did not rele ase the vehicle to U SAA (which would have enable d the car rier
to sell it for salvag e), th er eby reta ining it as if she would be attempting to repa ir or sell it herse lf. There afte r, as explained in deposition and affida vit testim ony from Pronto r epre sentatives, Pronto ultimately auctioned off the 4Runner as salvag e following the notice and expiration of time entitling it to trea t the vehicle as abandoned. This evidenc e further reflec ted t hat P ronto obtained $1,700 1 1
in proce eds from the sale and that it applied this amount to offse t outstanding char g es that included $150 for towing and $1,400 for storag e ($20 pe r day

times 70 day s). 1 2
Of final note, Fe lder p re s en t ed evidenc e that in J une 2013, USAA had issued a chec k in the amount of $241.15, made out to Ba ldera s-Ramirez and her counsel, with the notation,
“L oss of use pay

ment under Property Damag e L iability Coverag e.” Ba ldera s-Ramirez and her counsel ha d then sig ned the c heck a nd deposited it. Rely ing on his summary -judg ment evidenc e, Fe lder asser ted that Ba ldera s-Ramirez

co u l d n o t , as a matter of l aw, recove r any amount of t he 4R unner’ s marke t value through her sui t beca use: (1) the USAA marke t-value repor t established conclusively that the vehicle’ s pre- collision marke t value had been $5,750, not the $7,000 being alleg ed; (2) Fe lder’s liabili ty for t h i s am o u nt would be offse t by the $1,700 in salvag e value that Ba ldera s-Ramirez had reta ined by not rele asing

USAA’s Dec ember 23, 2011, letter had indicated that it would pay storag e costs throug h 1 0 Dec ember

27. See Tex. Occ

. Code §§ 2303.151–.154 (notice require ments), .157 (rig ht to sell unclaimed 1 1 vehicle f ollowing notice ). Other char g es raised the total owing to $1,737.15, slightly highe r than the $1,700 offse t, 1 2 but neither side ha s sugg ested that this differ ence or the other char g es ar e mater ial. 6the vehicle, leaving her only $4,050 in marke t value that she could rec over; and (3) she had alre ady 1 3
been co mp e n s a

te d f o r th is lo ss—and more—throug h the $4,997.75 pay ment made on Fe lder’s behalf
to Z apata to pay off Ba ldera s-Ramirez’s debt on the vehicle. Fe lder further asser ted a no-evide nce
g round challeng ing w h e th e r B a ld e r a s - Ra mi r e z c o u ld p r e s e n t a

ny competent evidenc e of the vehicle’ s

m ar k et value, or at least of any value that would raise an issue of materia l fac t in the fa ce o f h i s
summary -judg ment proof of marke t value and pr ior pay ment.
Fe lde r a d d it io n a ll y c h a ll e n g e d , throug h traditional and no-evide nce g rounds, whether
Ba ldera s-Ramirez had actua lly incurre d any loss of towing and storag e char g es, as she had claimed.
As for l o s s -o f-use damag es, Felder urg ed that J& D T owing should not be applied “re troac tively ,” leaving Ba ldera s-Ramirez’s claim g overne d by the prior preva iling rule that would bar such rec overy in total-destruc tion case s. Alterna tively , Fe lder urg ed that his summary -j u dg ment evidenc e established conclusively that USAA’s 2013 “L oss of use pay ment” for $241.15 had been an acc ord and satisfac tion of Ba ldera s-Ramirez’s entire claim for those damag es. Finally , Fe lder challeng ed throug h both traditional and no-evide nce g rounds whethe r Ba l dera s-Ramirez could prese nt any competent evidenc e to support her rec overy of l oss-of-use damag es, or at least of any amount for which she ha d not alrea dy been c ompensated.
Ba ldera s-Ramirez filed a response that chief ly emphasized her own testimony by aff idavit and deposition. This included her opinion, pre sented unde r color of the “ proper ty owner

Although Felde r has used “market value” when ref err ing to this net amount, he is more 1 3 p re ci s ely ref

ere ncing the amount of the 4Runner’s pre- collision value that Ba ldera s-Ramirez could leg ally re cover as damag es following total destruction; i.e., the vehicle’ s marke t value immediately befor e the collision, less the vehicle’ s salvag e value if the owner opts to reta in it instead of conve y ing it to the liable pa rty or insurer

. 7rule,” that her vehicle’ s marke t value immediately befor e the collision had actua lly bee n $ 7 ,500,

highe r than both Fe lder’s valuation and the $7,000 she had previously demande d. She had derive d this fig ure, she explained, by consulting online adver tisements of 1999 4Runners being offe red for sale in Travis County and aver ag ing the listed price s. This calc ulation, she further sug g ested, found additional support in the fac t that she had paid $7,000 for t h e v eh i cl e a mere three wee ks befor e the collision.
Ba ldera s-Ramirez employ ed a simil ar methodology in reg ard to her claimed loss-ofuse damag es, which she urg ed wer e controll ed by J& D Towi ng and there fore rec overa ble. She testified that she had periodica lly contac ted renta l car companies following the collision and derive d

an “opinion” that “the aver ag e renta l cost in Travis County , Texas, from the date of the cra sh to now [Februa ry 2016, the date of her aff idavit] is $80.00 per day .” As for why or how s he was entitled
to rec over loss-of-use damag es for such an extended p er i o d, Ba ldera s-Ramirez profe ssed t hat s he had been unable to work for three or four y ear s afte r the collision (she claimed to be a profe ssional photogr apher ) “bec ause of the pain that I have when I b en d over, wher e I hurt my self in the

ac ci dent,” leaving her with insufficient financ ial resour ces to purcha se a repla ceme nt vehicle.
Howeve r, Ba ldera s-Ramirez acknow ledg ed during her deposition, in J anuary 2 0 1 6 , that she had resumed working by that time and was ear ning $300 per day as a photogr ap h er . And during the interim, she also admitted, her then-husband had provided her a “truc k” to drive. Although she did
not specif y t h e p re ci s e duration of this use, she indicated that the inception corr esponded to her

8resumption of driving following the collision and ended when she and her husband later divorce d, 1 4

an event she pl ace d in Dec ember 2015. Ba ldera s-Ramirez further di s p uted t hat any of her claims

wer e fore closed by the two pay ments USAA had made and insisted that Fe lder’s summary -judg ment evidenc e had suppor

ted ra ther than ne g ated he r cla im for $1,700 in “towing and storag e costs.” The trial court g rante d Fe lder’s summary -judg ment motion “in all respe cts” and rende red judg ment that Ba ldera s-Ramirez take nothing on her c laims. This appeal followe d.

ANALYSIS
I n six issues, Ba ldera s-Ramirez urg es that the trial court err ed in g ranting summary judgme nt as to Fe lder’s no-evide nce g rounds and as to Fe lder’s traditional g rounds that wer e founded on the prior pay

ments by USAA.

Stand ard of review

We revie w summary judgme nts de novo. Summary judgme nt is proper when there 1 5

are no disputed issues of mater ial fac t and the movant is entitled to judgme nt as a matter of law. 1 6
We take as true any evidenc e favor able to the non- movant and indulg e eve ry rea sonable infe renc e from the e vidence in the non-movant’s fa vor. 1 7

B a ld e r a s - Ra

mi r e z te s ti f

ie d th a t s h e h a d b e e n “ r e a ll y a f

r a id to d r iv e ” f o ll o w in g th e c o ll is io n 1 4 a n d th a t h e r th e n - h

u s b a n d , “ to h e lp me r e c o v e r , lo a n e d me th e tr

u c k to d r iv e to p la c e s th a

t w e r e c lo s e b y . . . s o I c o u ld s ta

r t d r iv in g a g a in

. ” See M erriman v. XTO Ene rgy, Inc

. , 407 S.W .3d 244, 248 (Tex. 2013). 1 5 See Tex. R. C iv. P. 166a(c); BCCA Appeal Grp., Inc. v. City of Houston , 496 S.W .3d 1, 1 6 7 (Tex. 2016).

See Lightni ng Oil Co. v. Anadarko E& P Onshore, LLC , 520 S.W .3d 39, 45 (Tex. 2017). 1 7 9Wit h respe ct to no-evide nce g rounds, the non-movant has the burde n of pre senting

evidenc e to raise a g enuine issue of materia l fac t as to the elements of claims or defe nses that wer e challeng ed in the motion. No-e vidence motions ar e essentially pretria l dir ecte d verdic ts, a nd we 1 8
revie w them under the same leg al-suff icien cy s t andar d. That is, we will aff irm a g rant of a 1 9
no-evide nce motion when the rec ord reve als a complete absenc e of evidenc e of a vital fac t, rules of law or e vidence preve nt the court fr om g iving weig ht to the onl y evidenc e off ere d to prove a

vital fac t, the evidenc e o ff

ered to prove a vital fac t is no more than a mere scintilla, or the evidenc e conclusively establishes the opposite of a vital fac t. Wit h “tra ditional” summary -judg ment 2 0
g rounds, i n contra st, the m ovant m ust first prese nt evidenc e that es t ab l i s h es or nega tes a claim or defe n s e as a m at t er o f l aw. Only if this burden is met must the non-movant prese nt evidenc e to 2 1
raise a g enuine issue of

materia l fac t that would defe at summary judgme nt. 2 2 Where, as her e, t he trial court does not specify any particula r g rounds for its
summary -judg ment ruling , we must aff irm on any meritorious g round prese nted in the motion and

Tex. R. C iv. P. 166a(i); see Lightning Oil Co. , 520 S.W .3d at 45. 1 8 See M erriman , 407 S.W .3d at 248. 1 9 See id. ; King Ranch, Inc. v . Chapman , 118 S.W .3d 742, 751 (Tex. 2003). 2 0
Tex. R. Civ. P. 166a(c ); see KCM Fin. LLC v. Bradshaw , 457 S.W .3d 70, 79 (Tex. 2015)

. 2 1 S e e A m e d is y s , I n c
. v
. Ki n g

wo o d H o m e H e a lt h Ca r e , LL C , 4 3 7 S. W. 3 d 5 0 7 , 5 1 1 ( T e x. 2 0 1 4 )

. 2 2 10prese rved on appea l. Our analy sis is confine d solely to the g rounds p rese nted in the summary 2 3 judgme nt motion or response. 2 4

Market value
I n her first issue, Ba ldera s-Ramirez insists that she raised a g enuine issue of materia l fac t reg arding t he 4Runner’s fair marke t value by opining that the value was $7,500. She emphasizes the “prope rty owner rule,” the principle that a lay person is presumed qualified to testify
to the marke t value of his or her own proper ty , a subject on which an expert’s testimony is otherwise require d. But as the Texas Supreme Court has explained, a lay proper ty owner ’s qualification to 2 5 testify to marke t value does not automatically mean that his or her opinions are competent evidenc e of marke t value. Rather, the witness must meet “the same require ments as any other opinion evidenc e” —and this inclu d es providing underly ing fac tual bases for the opinion and not mere 2 6

See Ne ely v . W

ilson , 418 S.W .3d 52, 60 (Tex. 2013). 2 3 See Henk

el v. Norman , 441 S.W .3d 249, 251 n.1 (Tex. 2014) (per curia m) (“[A] summary 2 4 judgme nt cannot be a ffirme d on g rounds not e x pressly set out in the motion or r esponse” ); City of Hous. v. Clear Creek Basin Auth., 589 S.W .2d 671, 678 (Tex. 1979) (holding that revie wing courts may not reve rse su m m ar y j udg ment for any g round not prese nted to trial court except for the sufficie ncy

of the motion as a matter of l aw)

. And t o the extent either par ty attempts on appea l to prese nt new g rounds for g ranting or deny ing summary judgme nt, we have not belabor ed them. See Tex. R. App. P . 47.1. See Natural Gas Pipeline Co. of Am. v. J ustiss , 397 S.W .3d 150, 155 (Tex. 2012). 2 5 Id. at 156 (quoting Porras v. Craig , 675 S.W .2d 503, 504 (Tex. 1984)). 2 6 11ipse dixit

. “This burde n is not onerous,” as a lay witness nowada y s can look to an a

bundance of 2 7

resour ces online a

nd elsewhe re r eg arding near by sales and othe r re levant fa ctors. 2 8
I n att empting to meet this burden, Ba ldera s-Ramirez testified that at some po i n t following the collision but “many y ear s” befor e her J anuar y 2016 deposition, she had co n s u l t ed

www.a utotrader .com and found three adv er t i s em ents for sale of 1999 Toy ota 4Runners in Travis County

. She included printouts of these a dvertisements in her summary -judg ment evidenc e. The sale price s at which the vehicles wer e being offe red rang ed from $6,995 for a g ree n SR5 model with four- whee l drive and 170,019 miles, to $7,995 for a L imited model of unspecifie d color and 140,263 miles, to a tan L imited model with 141,565 miles tha t w as being offe red f or $7,992. As for how

2 9
she had derive d her $7,500 fig ure fr o m t h e advertisements, Ba ldera s-Ramirez explained that it
repr esente d an “a

vera g e value .” Although Ba ldera s-Ramirez did not persona lly rec all the specific fea tures of her own 4Runner aside from the color (which she descr ib ed as “sand” but appea ring g ree n at night) , the
USAA marke t-value repor t, which she also included in her summary -judg ment proof, as had Fe lder, ref lected tha t hers had been a two-whe el drive SR5 model with 171,219 miles. Balder as-Ramire z did not indicate whether or how her “ave rag e value” had t ak en acc ount of sever al obvious distinctions betwee n her vehicle and the three compa ra t ors—among other things, the two highe rprice d 4Runners had approximately 30,000 few er miles than hers and had been L imiteds, a highe r-

See id . at 159. 2 7 See id. 2 8 Although Ba ldera s-Ramirez ref ers solely to the two highe r-pr iced models in her appellate 2 9 briefing , her te stimony

actua lly cited all thre e fig ures a s the bases f or her marke t-value opinion. 12tier model than her SR5, and none of the three adver tisements ha d indicated prior damag e from an

acc ident. But even l eaving aside such distinctions, the t hree adver tisements do not supply

a basis for Ba ldera s-Ramirez’s marke t-value opinion beca use they repr esent mere ly the price at which the other 4Runners wer e being offer ed for sale, as opposed t o any p ri ce s at wh ich t he 4R unners were
actua lly being sold.
Ba ldera s-Ramirez overlooks that mar ket value is a

function of not only the seller’ s side of the transac tion, but also the buy er’ s—it is, ag ain, “the price the proper ty will b ri n g when

o ff er ed fo r sale by one who desires to sell, but is not oblige d to sell, and is boug ht by o n e wh o desires to buy , but is under no nece ssity of buy ing.” Consequently , the price at which proper ty is 3 0
offe red for sale is not, without m o re , evidenc e of its fair marke t value at the time of the listi ng . 3 1
Whil e the offe red price might be some evidenc e of the price a willing seller would acc ept, it is not evidenc e of the price a willing buy er would pay . Ba ldera s-R am i re z p rese nted no more than the 3 2
bare fac t that other 4Runners had been offe red for sale at particula r price s, not any evidenc e of actua l sales. The adver

tised prices do not provide a basis for her opinions as to marke t value.
Nor does the purcha se price of Ba ldera s-Ramirez’s 4Runner provide a basis for her marke t-value opinion. Although Ba lder a s - Ra mi r e z e mp h a s iz e s th e r e la

tive ly short (3-we ek) passag e of time between h er purcha se and the collision, she prese nted no evidenc e that would permit a

PlainsCapi tal Bank , 459 S.W .3d at 556 (quoting City of Harlingen , 48 S.W .3d at 182) 3 0 (empha sis added))

. See Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch , 443 S.W .3d 820, 831 3 1 (Tex. 2014). See id. 3 2 13rea so n ab l e fa ct finder to infer that the vehicle had nece ssarily rema ined in materia lly the same

condition during the interim. I n the fac e of Fe lder’s no-evide nce challeng e, she, not Fe lder, bear s 3 3
the burden of coming forwa rd with that evidenc e. But even if the temporal proxi mity of the purcha se in itself could support the infere nce, it rema ins that Ba ldera s-Ramirez made the purcha se in L are do, wher eas her burden was to e stablish f air marke t va lue in Travis County

. She made no attempt to 3 4 supply any fac tual basis to support an infere nce that the L are do purcha se price would be materia lly simil ar to the Tr avis County fair ma rket va lue. Absent any underly ing fac tual basis, Ba ldera s-Ramirez’s opinion as to the 4Runner’s
pre- collision fair marke t value was not competent and did not raise a g enuine issue of materia l fac t. Acc ording ly , we overr

ule her first issue. And aside from her first issue, Ba ldera s-Ramirez has not challeng ed Fe lder’s entitlement to summary judgme nt, per a traditional g round, that the 4Runner’s

corr ect fair marke t value had been $5,750. Nor has she contested Fe l d er ’s entitlement, per other traditional g rounds, to a $1,700 offse t ag ainst this amount, ref lecting the salvag e value that she had

Cf. DZM, Inc. v. Garren , 467 S.W .3d 700 , 7 0 3

– 0 4 (Tex. App.—Houston [14t h Dist.] 3 3 2015, no pet.) (testimony insufficient to establish fair marke t value was identical to pur chase price due to interve ning pa ssag e of time a nd failure to addre ss depre ciation). See J& D Towi ng , LLC , 478 S.W .3d at 657; see also Thomas v. Oldham , 895 S.W .2d 352, 3 4 359 (Tex. 1995) (out-of- state owner ’s testimony leg ally insufficient to prove $3,000 reduc tion in value of her automobile when she did not specific ally t i e h er valuation testimony to location of collision in Houston); Peter Salpeter Energy Co., Inc. v. Crystal Oil Co. , 524 S.W .2d 383, 387 (Tex. Civ. App.—Corpus Christi 1975, writ re f’ d n . r. e. ) (evide nce of marke t value in adjac ent county incompetent to establish marke t value of pr operty in county wher e conve rsion occur

red)

. 14reta ined, or that this would reduc e Ba ldera s-Ramirez’s potential rec overy of the vehicle’ s value to 3 5 $4,050.
On the other hand, these unchalleng ed traditional g rounds also eff ectively establish that Ba ldera s-Ramirez was entitled to rec over $4,050 for the 4Runner’s value. Consequently , Fe lder’s take- nothing summary judgme nt o n t h is claim must also hinge on his traditional g round

c la im in g a $4,977.75 cre dit ag ainst his potential liability —completely offs e tt in g th e $ 4 , 0 5 0 r e c o v e r y , with $927.75 left over to apply ag ainst other claims—repr esenting USAA’s pay ment on his behalf
to Z apata . Ba ldera s-Ramirez challeng es this gr ound in her four th issue.
Ba ldera s-Ramirez asser

ts that the pay

ment to Z apata is tantamount to a “g ift” to that business beca

use it was not part of any settlement with her, was not otherwise require d leg ally , and

was not ma de in e x chang e for any consideration f rom Z apata

. She further posits that if Fe lder can obtain cre d i t fo r the pay

ment, “an insurance company could send a chec k to a trave l ag ency for a ticket to Disney land on behalf of an injured claimant, then later demand full cre dit for the pay ment
aga i n s t an y settlement.” Howeve r, Z apata was a secur ed cre ditor with rig hts in the vehicle, and
Ba ldera s-Ramirez overlooks uncontrove rted summary -j u d gment evidenc e that USAA’s pay ment satisfied the entirety of her underly ing debt, a debt that she would have otherwise continued to owe despite the collision. That USAA m ad e t h e pay ment direc tly to Z apata rathe r than to her is ultimately not materia l to the parties’ respe ctive rig hts be cause the entirety of the pay ment, even if

Howeve r, Ba ldera s-Ramirez’s claim for “towing and storag e char g es,” addre ssed below, 3 5 ultimately

seeks to re cover

the amount of this offse t throug h indirect mea ns. 15made to her, would still have been subject to Z apata ’s secur ity interest. An d whi le Ba ldera s- 3 6 Ramirez sug g ests that USAA failed to c omply with c erta in te chnica l r equire ments for discha rg ing
Z apata ’s lien, it remains undisputed that the pay ment satisfied the unde rly ing de bt in full. 3 7
U lt im a te ly , B a ld e r a s - Ra

mi r e z s e e k s a

n im p e rmissible d o u

b le

- r e c o v e r

y f o r lo s t v e h ic le value for which she had alre ady been compensate d when USAA paid off her debt to Z apata

. T h e trial court did not er r i n gra n ting summary judgme nt that she take nothing on that claim. We

overr ule her fourth issue.

“Tow ing an d storage c harges”

I n her thir d issue, Ba ldera s-Ramirez insists that she prese nted summary -judg ment evidenc e raising a fac t issue as to whether she suffe red the loss of the $1,700 in “towing and storag e char g es” she claimed. She em p h as i z es the evidenc e, also relied upon by Fe lder, ref lecting that
Pronto had, at least befor e selling the vehi cl e fo r s alvage , considere d her to owe $150 for towing char g es and $1,400 for storag e. The salient point here is that Fe lder’s no- evidenc e motion place d the burden on Ba ldera s-Ramirez to prese nt evidenc e that she had suffe red loss from these char g es. She did not do so—althoug h there was proof that Pronto had at one time rec o rd ed t h e ch ar g es as

acc ruing , she prese nted no ev i d en ce that she ever actua lly paid them. On the contra ry , Pronto

S e e T e x. B u s . & Co m. Co d e § § 9

. 1 0 2 ( 6 5 ) , . 2 0 3 , . 3 0 9 ( 1 ) , . 3 1 5 , ( U CC p r o v is io n s a d d r e s s in g 3 6 p u r c h a s e - mo n e y s e c u

r it y in te r e s ts ) ; T e x. Pr o p . Co d e § § 6 1

. 0 0 2

– . 0 0 4 ( s ta tu to r y li e n f o r mo to r - v e h ic le mo r tg a g e e s )

. See Tex. Prop. Code § 61.005 (“I f the proper ty to which a lien cre ated under this chapte r 3 7 attache s is paid jointly to the mortg ag ee and mortg agor , t h e l i en is discharg ed.”)

. Contrary to Ba ldera s-Ramirez’s view, this provision would appea r calc ulated to ensure notice to the cre ditor and to protec t its interests, as opposed to prec luding exti ng uishment of the lien by pay ing the full amount of the unde rly ing de bt directly to the cre ditor. 16ultimately rec ouped the char g es throug h the proce eds of its eventua l salvag e sale of the 4Runner.

To the extent Ba ldera s-Ramirez is c ontending that she suffe red the loss throug h this e ventual sale, she has not attempted to demonstrate that she possessed any rig hts to the vehicle at that juncture in light of Fe lder’s summary -judg ment proof that she had abandone d it. The trial court did not err in
g ranting summary judgme nt tha t she take nothing on this claim. We ove rrule Ba ldera s-Ramirez’s third issue.

Loss-of -use dam ages B a ld e r a s - Ra

mi r e z’s rema in in g is s u e s c h a ll e n g e th e tr ia l c o u r t’ s ta k e - n o th in g s u

mm a r y judgme nt on her claim for loss-of-use damag es. I n her six th issue, she urg es that the Texas Supreme
Court’s J&

D T owing decision gover

ns this case and opens the door to her recovery of l oss-of-use damag es despite her 4Runner being totally destroy ed. Fe lder counter s that we should apply J& D
Towi ng only prospec tively , urg ing that the decision “ra dically depar t[ ed]” from “esta

blished Texas jurisprudenc e” that had barr ed Ba ldera s-Ramirez’s rec overy and on which he had alre ady relied for over f our y ear s befor e the de cision was hande d down.
As a g ener al rule, judicial decisions, including those of the Texas Supreme Court, apply “re troac tively ” to pree x isting case s that have not y et been conclude d by a final judgme nt and exhaustion of direc t a

ppeals. Whil e ac knowledg ing this g ener al rule, Fe lder emphasizes that the

3 8
Texas Supreme Court has made exceptions in some case s and urg es that this case war rants such

See Engelman Irrigation Dist. v. Shields Bros., Inc. , 514 S.W .3d 746, 748–49 (Tex. 2017). 3 8 17trea tment under the a naly sis that c ourt has used. But whateve r the mer its of Felde r’s a ssertion, 3 9 4 0
he overlooks that it is solely the Texas Supreme Court’s prer og ative, not ours, to decide whether its decisions should have only prospec tive eff

ect. Nothing in the te x t of J& D Towi ng indicates that 4 1
the Texas Supreme Court exercised its discretion to apply the decision only prospec ti v ely

. 4 2
Acc ording ly , we are bound to apply J& D Towi ng to Ba ldera s-Ramirez’s claim fo r loss-of-use damag es. We sustain her six th issue.

4 3
I n her second issue, Ba lder as -R amirez urg es that she prese nted leg ally sufficie nt evidenc e, in response to Fe lder’s no-evide nce challeng e, to support her claim of loss-of-use damag es

acc ruing from the date of the collision throug h trial and judgme nt. To meet this burde n, Ba ldera sRamirez points to h er “opinion” that the “ave rag e renta l cost” for a “similar vehicle” in Travis County “fr om the date of the c rash to now i s $80.00 per day ,” as well as her testimony profe ssing financ ial inability

to purcha se a r eplac ement vehic le pre viously

.
See, e.g ., Carroll ton Farmers Branch Indep. Sch. Di s t

. v. Edgewood Indep. Sch. Dist ., 3 9 826 S.W .2d 489, 515–21 (Tex. 1992) (borr owing fac tors from Chevron Oil Co. v. Huson , 404 U.S. 97, 106–07 (1971))

. See id

. at 518–19 (citing , among other considerations, whether the decision “esta blish[ es] 4 0 a new principle of law

. . . by overr uling clea r past prec edent on which litigants may have relief ” and “the inequity

imposed by

retrospe ctive application” (quoting Huson , 404 U.S. at 106–07)). See Bowen v. Aetna Cas. and Sur. Co. , 837 S.W .2d 99, 100 (Tex. 1992) (per curia m) (“A 4 1 decision of the Supreme Court opera tes retroa ctively unless this Court exercises its discretion to modify that application.”) ; Picke tt v. Texas Mut. Ins. Co. , 239 S.W .3d 826, 833 (Tex. App.—Austin 2007, no pet.) (“The decision of whether a supreme court case applies only prospec tively lies within the discre tion of the supreme court.” ).

See ge nerally J&

D Towing, L LC , 478 S.W .3d at 652–78. 4 2 See P i ck

et t , 2 3 9 S.W .3d at 833 (similarly holding that Texas Supreme Court decision 4 3 applied re troac tively

in the absenc e of a

ny contra ry indication in that opinion). 18As the supreme court ob s er v ed in J& D Towi ng , the prior rule holding loss-of-use damag es unrec overa

ble in a total-destruc tion c ase had der ived in part fr om an assumption or leg al fiction that the property owner in such instances c ould replac e the pr operty immediately , and thus would not or should not incur loss-of-use damag es. Ba ldera s-Ramirez’s theory of rec overing loss- 4 4
of-use damag es repr esents an opposite extreme from this premise—he r g rava men is that a proper

ty

owner may rec over los s -o f- u s e damag es indefinitely , at least if he or she profe sses financ ial constraints or some other perc eived inability to purcha se a repla ceme nt. Assuming the $80-per day value she advocates, the theory would y ield Ba ldera s-Ramirez loss-of-use damag es that had alre ady

exc ee d ed $120,000 (and counting ) by the time the trial court terminated the eff ort throug h
summary judgme nt. J& D Towi ng does not g o this far in expanding rec overy of loss-of-use damag es. As the Texas Supreme Court emphasized there , the broade r rules for asce rtaining tort d amag es, inclu d i n g loss-of-use damag es, seek ultimately to ensure “‘a fair, rea sonable, and proper

co m p en s at i o n for the injury inflicted as a proxi mate result of the wrong ful act complained of,’”
compensa tion that is “neither meag er nor exces s i v e” in “plac [i ng ] the plaintiff in the position in which he would have been absent the defe ndants’ tortious act.” L oss-of-use damag es, it explained, 4 5

serve specific ally to compensa te for economic injury , distinct from harm to the proper ty itself, that
may result from the de privation of the pr operty ’s use during either r epair s or “a period reasona bly

See J& D Towi ng , 478 S.W .3d at 672–73 (not ing the “assumption

. . . that, in total 4 4 destruction case s, a plaintiff could immediately repla ce the destroy ed proper ty and, thus, did not suffe r any loss-of-use da

mag es”)

. J& D Towi ng , 478 S.W .3d at 655 (quoting Pasadena State Bank , 228 S.W .2d at 128, and 4 5 citing Nelson v. Krusen , 678 S.W .2d 918, 924–25 (Tex. 1984)). 19nece ssary to obtain repla ceme nt proper ty ,” as measure d by pecunia ry losses (such as lost profits) or the cost of renting a substitut e in the meantime. Such damag es, it further o b s er v ed , “ar e often 4 6
appropr iately couche d in terms of co n s e q u e n ti a l damag es”—i.e ., those that do not flow “nec essar ily ” from the tortious ac t, as with direct da mag es, but “must be both foresee able a nd direc tly

trac eable to the act.” Henc e, loss-of- use dama g es “ma y not be sustained at a ll” in a g iven ca se. And the 4 7 4 8
J& D Towing

court fur ther c autioned: Permitting loss-of-use damag es in total-destruc tion case s . . . is not a license for u n re s trained raids on defe ndants’ coff ers. As with all conseque ntial damag es, th e availability of loss-of-use damag es is nece ssarily circ umscribed by commonsense rules. To be g in with, the damag es cla imed may not be ‘too re mote.’ This is not to say they must be ‘the usu al result of the wrong ,’ but they must be fore seea ble and direc tly trac eable to the tortious act. The damag es also mus t n o t b e specula tive. Al t h o u g h mathematica l exactness is not require d, the evidenc e offe red must ri s e above the level of pure conjec ture. Moreove r, the damag es may not be awa rded for an unrea sonably long period of lost use. Whether fra med as a duty of mitigation or a doctrine of avoidable conseque nces, the principle is the same: A plaintiff may not rec over loss-of-use damag es for a period longe r than t h at rea sonably neede d to replace the persona l proper ty

. That principle compels a plaintiff’s diligenc e in reme dy ing his loss and deter s an opportunistic plaintiff from dilly -dally ing at the

See id

. at 655–56, 676–77; see also Luna v. North Star Dodge Sales, Inc. , 667 S.W .2d 115, 4 6 118-19 (Tex. 1984) (desc ribing damag es for loss of vehicle’ s use during repa irs as compensa tion for owner ’s “inconve nience ” and holdi n g th a t c la im ant “nee d not rent a repla ceme nt automobile or show any amounts actua lly ex pended for alterna tive transporta tion,” but could rely on proof of “the rea sonable re ntal value of a substitute automobile”). J& D Towi ng , 478 S.W .3d at 655–56 (citing Baylor Univ. v. Sonnichsen , 221 S.W .3d 632, 4 7 636 (Tex. 2007); Arthur Andersen & Co. v. Perry Equip. Corp. , 945 S.W .2d 812, 816 (Tex. 1997); Mead v. Johnson Grp., Inc., 615 S.W .2d 685, 687 (Tex. 1981); Henry S. Miller Co. v. Bynum , 836 S.W .2d 160, 163–64 (Tex. 1992) (Philips, C.J ., concur ring ); Powell Elec. Sys., Inc. v. Hewlett Pack ard Co. , 356 S.W .3d 113, 121 (Tex. App.—Houst o n [1 s t D is t. ] 2011, no pet.); Airborne Freight Corp., Inc. v. C.R. Lee Enters., Inc. , 847 S.W .2d 289, 295 (Tex. App.—El Paso 1992, writ denied) ; 1 Dan B . Dobbs, Law Of Remedies § 5.15(1), a t 874 (2d ed. 1993))

. Id. at 677 n.199. 4 8 20expense of the defe ndant. After all, the role of actua l damag es is to place the plaintiff

in his rightful position, not the positi on he wishes to ac quire. 4 9
Suffice it to say that Ba ldera s-Ramirez’s claim for loss-of-use damag es—which presumes “a period

rea sonably nece ssary to obtain replaceme nt proper ty ” exceeding four y ear s and would y ield a six -dig it awa

rd t hat ex cee ds twenty times her vehicle’s fair market value (six teen tim es under her own valuation)—r aises some re d flag s under J& D Towing ’s re asoning

. And g ui d ed b y J&

D Towi ng , we conclude that Ba ldera s-Ramirez has not raised a
g enuine issue of materia l fac t with respe ct to her rec overy of loss-of-use damag es. We first observe that Ba ldera s-Ramirez prese nted no evidenc e that her previous uses of the 4Runner had been
any thing other than persona l in nature —transport at i o n fo r herse lf or family members to work, school, visits to friends, and the like—as oppose d to pecuniar y . Fur ther, the injury or deprivation that would be the basis for Ba ldera s-Ramirez’s rec overy of loss

- o f

- u s e damag es would not arise from the inability to use a specific vehicle (her e, her 4Runner) wh i l e aw ait ing repa irs, as in a partialdestruction case , but from the absenc e of some substitut e vehicle adequate fo r h er persona l use. Ba ldera s-Ramirez eff

ectively conce ded that she suffe red no such depriva tion until sever al y ear s had elapse d following the collision.

I mmediately following the collision, Ba ldera s-Ramirez testified, she cea sed driving altog ether for a period of time, citing fea r or “tra uma” from the collision. Whil e perha ps implicating harm compensa

ble in persona l- i n

j u ry damag es (and, in this case , alre ady fore closed throug h her

Id

. at 677 (citing Arthur Andersen , 945 S.W .2 d at 8 1 6 ; W hite v. Southw estern Bell Tel. 4 9 Co., Inc., 651 S.W .2d 260, 262 (Tex. 1983); Bynum , 836 S.W .2d at 164 (Philips, C.J ., concur ring ); Dobbs, Law Of Remedies (2d) § 5.15( 1), at 875))

. 21set

tl e me n t) , th is e v id e n c e n e g a te s a n y d e p r ivation compensa

ble in loss-of-use damag es. There afte r, 5 0
when she eventua lly beg an driving , for purpo s es s he descr ibed as persona l, Ba ldera s-Ramirez acknow ledg ed that she had use of a “truck” provided by her the n-husband. Although she stresses her char acte rization that the vehicle was “loane d” by her then-husband, Ba ldera s-Ramirez prese nted

no evidenc e t h at t h is asser ted status cause d her any depriva tion with respe ct to her vehicle use as
compar ed to either

her 4Runner

or a pe rmane nt replac ement. 5 1
Ba ldera s-Ramirez does not identify any actua l depriva tion of vehicle use u n t il her hus b an d took back the truck upon the couple’ s divorce —an event she place s in Dec ember 2015,
roug hly four y ear s afte r t he collis ion. Her summar y -judg ment evidenc e fa iled to raise a fac t issue (if not neg ated conclusively ) that such a remote claime d d ep ri v ati on of use could be considere d “dire ctly trac eable ” to the collision or within any period “re asonably neede d to repla ce the persona l
proper ty .” Rather, the rec ord bespea ks a lack of diligenc e that is also ref lected in the intervening 5 2

near -dismissal of her law suit for want of prosec ution. We would also note tha t Ba ldera s-Ramirez acknow ledg ed that she had returne d to work by late 2015, ear ning $300 per day as a photogr apher , y et offe red no explanation as to why or how her profe ssed financ ial inability to acquir e a perma nent repla ceme nt ve hicle previously , which she had attributed to he r being unable to work, would have continued to exist at the later juncture.

The same would arg uably be true of B alder as-Ramire z’s professed f inancial inability

to 5 0 purcha se a repla ceme nt vehicle, which she attributed to an inability to work for sever al y ear s due to pain—ultimately

a complaint of lost wag es re sulting fr om her pe rsonal injuries. Nor is there any claim for expenses or other loss associate d with the husband’s provision 5 1 of the truc k to Ba ldera s-Ramirez in lieu of other use s of that vehicle

.

See id

. 5 2 22This Court’s 1997 Mondragon decision does not dictate any contra ry conclusion. 5 3
That decision, which arose from an automobi l e co l l i s i on that was deeme d to rende r a vehicle inopera ble but repa irable (and thus opening the door to loss-of-use damag es under the preva iling rule
at the time), did uphold implied finding s awa rding loss-of-use damag es throug h time o f t ri al

— a period exceeding two y ear s—where the plaintiff vehicle owner prese nted evidenc e that he had been financ ially unable to repa ir the vehicle throug hout that period. The Court reje cted the defe ndant’s 5 4
arg uments that the period of rec overy should be cappe d at two wee ks (the period in which the

car could have been repa ired) u n d er an “objec tive rea sonablene ss” standard, instead rea soning essentially that the financ ial constraints prec luding repa irs wer e an “eg g shell plaintiff”- ty pe char acte ristic for which the defe ndant bore the risk and responsibility

. The Court simil arly deeme d 5 5
of no moment that the los s -o f- u s e- d am ag es awa rd exceede d twice the value of the vehicle in question. To the extent Mondragon survives J& D Towi ng , it is distinguishable. Among other 5 6

954 S.W .3d 191. 5 3 See id . at 192–95. 5 4 See id

. at 194 (“I f we wer e to limit Austin’s loss of use awa rd to two wee ks, we would be 5 5 penalizing him for his lack of financ ial resour ces, deny ing him rec overy of the damag es he suffe red beca use of Mondrag on’s neg lige nt act and allowing [Mondrag on’s] insurance company to rea p the benef its of its ref

usal to pay the meritorious claim. The law does n o t p er m i t or require such a result.

. . .[A] tortfea sor takes the plaintiff as he finds him.” (citing Co a t es v. W h i t t ington , 758 S.W .2d 749, 752 (Tex. 1988)), 195 (“That Mondrag on happene d t o co l l i de with a car whose o wn er did not have surplus disposable income does not absolve him of responsibility for the conseque nces of

his neg lige nt act.”)

. See id

. at 195–96 (“[A] person wh o s e ca r i s o nly partially damag ed suffe rs damag e in 5 6 addition to loss of value o f t h e ca r. The person also suffe rs loss of use of the car , a value not nece ssarily

corr elative to the va lue of the car .”); see also id. at 193 (finding evidenc e suff icient to support loss-of-use damag es awa rd of $8,020 wher e vehicle’ s fair marke t value at time of collision was $3,400). 23things, the Mondragon plaintiff, unlike Ba ldera s-Ramirez, prese nted evidenc e of actua l depriva tion

of vehicle use throug hout the period in question, as well as evidenc e that his financ ial inability to 5 7
aff ord repa irs had actua lly continued throug h time of trial. But more critica lly , the Texas Supreme 5 8
Court in J&

D Towi ng , unlike the Mondragon Court, expli citly adopted an objective- rea sonablene ss standard for d et er m i n i n g the period for which loss-of-use damag es can be rec overe d, at least in total-destruc tion case s like this one—“[a] plaintiff may not rec over loss-of-use damag es for a period longe r than that rea sonably neede d to repla ce the persona l proper ty .” This standard, the high court 5 9 emphasized, is calc ulated to “compe l[ ] a plainti ff’ s diligenc e in reme dy ing his loss and deter[] an opportunistic plaintiff from dilly -dally ing at the expense of the defe ndant.” Ba ldera s-Ramirez has 6 0
failed to ra ise a fa ct issue under this standard.
As a final observa tion, Ba ldera s -R amirez’s burden with respe ct to loss-of-use damag es is, in prac tical eff ect, to raise a fac t issue not mere l y as t o whether she incurre d some
amount of those damag es, but as to whether she incurre d some amount g rea ter than the cre dits Fe lder

See id

. at 192 (noting that Austin “had to continue making pay ments on the ca r, send 5 7 additional money to his daug hter [ fo r wh o se use he had purcha sed the car ] for transporta tion at colleg e, and tr avel six-hundred miles eac h way to transport her

back a nd forth on holiday s”). See id

. at 196 (“A ustin testified that he could not drive the car and had no money to repa ir 5 8 or re place the ca

r fr om the time of the collision even until the time of trial.”)

. See J & D Towing , 478 S.W .3d at 677. 5 9
I d

. T h is d is ti n c ti o n w o u ld b e c o n s is te n t w it h r e c o g n it io n th a

t p la in ti f f s in a to ta l- d e s tr

u c ti o n 6 0 c a s e , w h il e n o t u

n iv e r s a ll y a

b le to r e p la c e th e ir v e h ic le s im me d ia te ly , a s h a d p r e v io u s ly b e e n a s s u me d , will n o n e th e le s s te n d to h a v e g r e a te r c o n tr o l o v e r th e le n g th o f th e in te r v e n in g d e la

y than would p la in ti f f s a w a it in g r e pairs o f a d a

ma g e d v e h ic le

. S

e e id

. ; c f. Lu n a , 6 6 7 S. W. 2 d a

t 1 1 9 ( h o ld in g , in r e p a ir a b le

- v e h ic le c a s e , th a

t “ [t ]h e p e r io d o f c o mp e n s a to r y lo s s o f u s e w il l b e th e a

mo u n t o f ti me th e p la in ti f f w a s d e p r iv e d o f th e lo s s o f u s e o f th e a u to mo b il e ” w h il e a

w a it in g r e p a ir s )

. 24may claim for the prior pay ments made on his behalf by USAA. These cre dits include not only the $927.75 of the Z apata pay ment that rema ined afte r being appli ed against Ba ldera s-Ramirez’s

rec over ab l e marke t-value damag es, but also USAA’s further pay ment of $241.15 expli citly for loss-of-use damag es. Although Ba ldera s-Ramirez disputes in her fifth issue that the latter pay ment suffice d as an acc ord and satisfac tion of her entire loss-of-use- d a ma g e s claim, she acknow ledg es that the pay ment amount should proper ly be credited ag ainst any rec overy she would obtain. The two

cre dits total $1,168.90, which would translate into roug hly 14 1⁄2 day s of non-use at the $80 per- day
renta l rate that Ba ldera s-Ramirez advocates. Even if Ba ldera s-Ramirez had otherwise raised a fac t issue as to some rec overy of loss-of-use damag es, we could not conclude this amount would exceed the $1,168.90 in pay

ments throug h which she ha s alrea dy been c ompensated.
A c c o r d in g ly , w e o v e r

r u le B a ld e r a s - Ra

mi r e z’s second issue. And beca use th is h o ld in g is singula rly sufficie nt to uphold the trial court’s take- nothing summary judgme nt as to loss-of-use d am ag es, we need not rea ch Ba ldera s-Ramirez’s fifth issue, her challeng e to the acc ord-andsatisfac tion gr ound. 6 1

CONCLUSION

We affir m the trial court’ s summary judgme nt.

_________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Pury ear , Pemberton, and G oodwin

See Tex. R. App. P . 47.1. 6 1 25Affir

med Filed: Nove mber 21, 2017

26