law-sufficiency-review
FACTUAL SUFFICIENCY CHALLENGE
When challenging the factual sufficiency of the evidence supporting an adverse finding upon which the
appealing party did not have the burden of proof, the appellant must demonstrate there is insufficient
evidence to support the adverse finding. McIntyre v. Comm'n for Lawyer Discipline, 169 S.W.3d 803, 806
(Tex. App.-Dallas 2005, pet. denied). When reviewing a factual sufficiency challenge, a court is to consider,
weigh, and examine all of the evidence for and against the finding, keeping in mind that the fact finder is the
sole judge of the credibility of the witnesses and is entitled to accept or reject any testimony it wishes, as well
as decide the weight to be given the testimony. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.
1989).
09-0539
GENERAL NEON SIGN COMPANY v. DAILEY & WELLS COMMUNICATIONS, INC.; from Bexar County; 4th
district (04-08-00488-CV, ___ SW3d ___, 03-18-09, pet. denied Sep. 4, 2009)
(sufficiency of the evidence review, measure of damages)
Sufficiency Challenges
In reviewing the legal sufficiency of the evidence to support a jury's finding, "we consider whether the
evidence at trial would enable reasonable and fair-minded people to reach the verdict under review, crediting
favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors
could not." Adams v. YMCA of San Antonio, 265 S.W.3d 915, 917 (Tex. 2008) (citing City of Keller v. Wilson,
168 S.W.3d 802, 822, 827 (Tex. 2005)). "We consider all of the evidence in the light most favorable to the
verdict, and indulge every reasonable inference that would support it. Id.
In reviewing factual sufficiency, we consider all the evidence and will set aside the verdict only if the evidence
supporting the jury finding is so weak or so against the overwhelming weight of the evidence that the finding
is clearly wrong and unjust. Collins & Aikman Floorcoverings, Inc. v. Thomason, 256 S.W.3d 402, 407 (Tex.
App.--San Antonio 2008, pet. denied). In conducting this review, we do not substitute our judgment for that of
the jury, as they are the sole judge of the credibility of the witnesses and the weight to be given their
testimony. Id.
In its first and second issues, General Neon contends the evidence is legally insufficient to establish the
elements of causation and damages, and in its third issue, General Neon contends the evidence is legally
and factually insufficient to establish General Neon's liability. Because we hold the evidence is sufficient to
support the jury's findings on the requisite elements of a breach of contract claim, we do not address the
evidence with regard to Dailey & Wells breach of warranty claim.
The elements of a breach of contract claim are: (1) a valid contract; (2) performance or tendered
performance by the plaintiff; (3) breach by the defendant; and (4) damages sustained by the plaintiff as a
result of the breach. MG Bldg. Materials, Ltd. v. Moses Lopez Custom Homes, Inc., 179 S.W.3d 51, 61 (Tex.
App.--San Antonio 2005, pet. denied). General Neon does not challenge the existence of a valid contract or
performance by Dailey & Wells. Instead, General Neon appears to be contending that it did not breach the
contract because the evidence did not establish the reason the lighting in the signs designed, manufactured
and installed by General Neon did not work. Furthermore, General Neon contends that no evidence
supported the jury's award of damages.
General Neon contractually agreed to design, manufacture and install seven signs for Dailey & Wells that
were back lit. Richard Wells, the owner of Dailey & Wells, testified that lighted signs were necessary because
Dailey & Wells's service department is open twenty-four hours a day and customers must be able to locate
his business at night. Bill Hall, General Neon's salesperson, agreed that the contract was for lighted signs.
Evidence was presented of the numerous problems with the signs after they were installed, including the
lights burning out, the lights flickering, wires shorting out, and the transformers smoking. Wells testified that
something was wrong with at least two or three signs at any given time. A folder of notes maintained by
Dailey & Wells's facilities director, Andy Anderson, detailing all of the problems, telephone calls, responses or
lack thereof, and service work performed, was admitted into evidence, and Anderson testified regarding the
constant problems. (1) General Neon argues that the evidence is insufficient because it does not establish
what caused the lighting not to work; however, Dailey & Wells was only required to prove that General Neon
failed to comply with its contractual obligation. The evidence presented establishes that: (1) General Neon
was contractually obligated to design, manufacture, and install lighted signs; and (2) the signs General Neon
designed, manufactured, and installed failed to properly light. Because Dailey & Wells contracted for lighted
signs, the evidence supports the jury's finding that General Neon's design, manufacture, and installation of
signs that failed to properly light was a breach of the contract.
General Neon also argues that no evidence was presented with regard to Dailey & Wells's damages.
Generally, the measure of damages for breach of contract is that which restores the injured party to the
economic position he would have enjoyed if the contract had been performed. Mood v. Kronos Products, Inc.,
245 S.W.3d 8, 12 (Tex. App.--Dallas 2007, pet. denied); Bowen v. Robinson, 227 S.W.3d 86, 96 (Tex.
App.--Houston [1st Dist.] 2006, pet. denied). In this case, evidence was introduced that other companies
contacted to repair the signs would only replace them, and despite the numerous opportunities Dailey &
Wells gave General Neon to repair the signs, General Neon was unable to repair them so that they remained
in working order. Evidence also was introduced that General Neon quoted Dailey & Wells the sum of
$20,172.63 to replace the top half of the signs with a different type of lighted signs, and Hall testified that the
bottom half of the signs would cost an equal amount to replace. The amount of damages awarded by the
jury, $40,345.26, is equal to the estimate General Neon provided to replace the top half of signs multiplied by
two, i.e., $20,172.63 x 2 = $40,345.26.
General Neon's first three issues are overruled.
Also see:
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