law-damages-proof
DAMAGES
It is the plaintiff's burden to prove its damages with a reasonable degree of certainty. A.B.F.
Freight Sys., Inc. v. Austrian Imp. Serv., Inc., 798 S.W.2d 606, 615 (Tex. App.-Dallas 1990, writ
denied). We recognize the jury has the discretion to award damages within the range of evidence
presented at trial, so long as a rational basis exists for the jury's calculation. Mayberry v. Tex. Dep't of
Agric., 948 S.W.2d 312, 317 (Tex. App.-Austin 1997, writ denied); Swank v. Sverdlin, 121 S.W.3d 785,
799 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). "A jury must have an evidentiary basis for its
findings." Salinas v. Rafati, 948 S.W.2d 286, 289 (Tex. 1997) (emphasis added). We turn then to the
evidence of damages relied upon by Sellers.
To establish the element of damage, the plaintiff must prove that the damages were proximately
caused by the breach. Hooper v. Smallwood, 270 S.W.3d 234, 240 (Tex. App.—Texarkana 2008,
pet. denied). “To establish proximate cause, a plaintiff must prove two elements, cause-in-fact and
foreseeability. Cause-in-fact is established when the act or omission was a substantial factor in
bringing about the injuries, and without it, the harm would not have occurred.” Id. (citation omitted).
MENTAL ANGUISH DAMAGES
On a legal sufficiency review of mental anguish damages, the Supreme Court of Texas has allowed
the recovery of such damages if the plaintiff provides direct evidence of the nature, duration, and
severity of his anguish establishing a substantial disruption in his daily routine, or other evidence of a
high degree of mental pain and distress that is more than mere worry, anxiety, vexation,
embarrassment or anger. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995); see Gunn
Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 860-61 (Tex. 1999) (plaintiff's testimony of "a constant mental
sensation of pain or rude awakening," "severe disappointment," and public humiliation was legally
insufficient to establish mental anguish). "Simply because a plaintiff says he or she suffered mental
anguish does not constitute evidence of the nature, duration, and severity of any mental anguish that
is sufficient to show a substantial disruption of one's daily routine." Gunn Infiniti, Inc., 996 S.W.2d at
861. Conclusory statements are not sufficient to prove mental anguish. See id.; EMC Mortg. Corp. v.
Jones, 252 S.W.3d 857, 872 (Tex.App.-Dallas 2008) (only evidence of wife's past mental anguish
consisting of husband's testimony "`I think [the situation has affected her] in much the same way . . . I
know it's taking a toll on her too,'" was legally insufficient).
DAMAGES - PROOF OF DAMAGES
Aquaplex, Inc v. Rancho Law Valencia, Inc., No. 08-0280 (Tex. Oct 30, 2009)(per curiam)
(fraud damages, proving amount of damages, remittiture by court of appeals or new trial)
AQUAPLEX, INC. AND JAMES EDWARD JONES, JR. v. RANCHO LA VALENCIA, INC. AND CHARLES
R. "RANDY" TURNER; from Travis County; 7th district (07-06-00157-CV, 253 SW3d 728, 11-02-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court affirms in part and reverses in part the court of appeals' judgment
and remands the case to that court.
Bennett v McDaniel, No. 08-0618 (Tex. Aug. 21, 2009)(failure to prove damages in post-answer
default hearing requires remand to the trial court, rather than reversal and rendition of take-nothing
judgment).
BENNY BENNETT AND WIFE, MARY BENNETT v. RICHARD MCDANIEL, INDIVIDUALLY AND D/B/A
RICHARD MCDANIEL, INC., D/B/A B.R. ROOFING, A/K/A B&R ROOFING; from Wheeler County; 7th
district (07-06-00250-CV, ___ SW3d ___, 04-30-08)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals’ judgment and remands the case to
the trial court.
Per Curiam Opinion