John O. Barkkari and Mary A. Barkkari v. Vega Roofing, Inc., a Texas Corporation

Opinion

NUMBER 13-06-047-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

JOHN O. BARKKARI AND

MARY A. BARKKARI, Appellants,

v.

VEGA ROOFING, INC.,

A TEXAS CORPORATION, Appellee.

On appeal from the County Court at Law No. 1

of Cameron County, Texas.

MEMORANDUM OPINION

Before Justices Rodriguez, Garza, and Wittig ⁽¹⁾

Memorandum Opinion by Justice Wittig

Appellants, John and Mary Barkkari, sued appellee, Vega Roofing, Inc. (Vega) alleging that Vega performed a faulty roof repair job on their home. A jury found that all parties had breached the contract, all parties were negligent, appellants had waived their contract rights, and found a breach of warranty with no resulting damages. The trial court entered judgment upon part of the verdict in favor of Vega for $1200.

The details of the procedural and factual background of this case are known to the parties and will not be reiterated herein. Tex. R. App. P. 47.1.

Appellants raise three issues which we address in order: (1) the trial court erred by granting a directed verdict on negligence based upon the statute of limitations; (2) the trial court erred by granting a directed verdict on appellants' DTPA claims for lack of statutory notice; and (3) the trial court erred by submitting an issue on waiver because there was no evidence to support its submission. We affirm.

1. Directed Verdict on Negligence

In their first issue, appellants state:

The trial court erred in granting Defendant's request for a directed verdict against Plaintiffs' negligence claim on the basis that the statute of limitations had run before the claim was filed.

Appellants argue that Vega had the burden to prove when their cause of action accrued, and because there was no evidence in the record as to when their "injuries" occurred, the court erred by granting the request for a directed verdict. Appellants contend " . . . there is not a scintilla of evidence establishing when the acts complained of were committed."

Appellant's contention is faulty because appellants' negligence pleadings were based upon failure to properly repair the roof, failure to supervise and monitor the employees working on the roof, failure to educate the employees, and failure to exercise care not to damage the parapet walls, scuppers and downpours. Testimony indicated these initial repairs were all completed in June 2000, more than two years before the suit was brought on May 21, 2003. ⁽²⁾

A court may instruct a verdict if no evidence of probative force raises a fact issue on the material questions in the suit. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). A directed verdict for a defendant is proper in two situations. First, a court may direct a verdict when a plaintiff fails to raise a fact issue essential to the plaintiff's right of recovery. Id. Second, a trial court may direct a verdict for the defendant if the evidence conclusively establishes a defense to the plaintiff's cause of action. Id.

Appellants call our attention to the reporter's record at pages 170 and 204. See Tex. R. App. P. 38.1(h). There, we observe that, indeed, appellee moved for a directed verdict on "[a]ll the negligence and theories that sound in tort, which would be at [a] two year statute of limitations." In this pre-jury submission conference, the trial court did not rule on the negligence claim, and the following day indicated she would allow the jury to decide because the issue could become moot. The negligence issue was submitted to the jury, and, although appellants argued the discovery rule to the trial court, it was neither pleaded nor submitted to the jury.

Appellate practice requires that an appellant's brief must contain a clear and concise argument for the contentions made with appropriate citations to authorities and to the record. Tex. R. App. P. 38.1(h). Premised upon appellant's argument and citation to the record, we have no alternative but to overrule appellants' issue that the trial court erred by granting a directed verdict on their negligence theory. The trial court did not direct a verdict on the negligence issue and therefore could not have erred as argued by appellants. ⁽³⁾ Appellants' first issue is overruled.

2. DTPA Notice Requirement

Appellants next contend the trial court erroneously granted an instructed verdict on their DTPA claim. The apparent basis for the court's rejection of this claim was appellants' failure to give notice as required by the Texas Business and Commerce Code. See Tex. Bus. & Com. Code Ann. § 17.505 (Vernon 2002). ⁽⁴⁾ When appellee filed its original answer, it was accompanied by a plea in abatement. Appellants argue the abatement automatically was in force on July 19, 2003. Even though the automatic stay was in force, however, the parties continued developing the case unabated. Appellants conclude: "There is no evidence that Defendant made any effort to enforce the stay, thereby waiving it." Appellants cite no authority for this contention.

Consumers must give written notice to the defendants at least sixty days before filing suit. Tex. Bus. & Com. Code Ann. § 17.505(a) (Vernon 2002). Defendants who do not receive written notice before being sued may file a plea in abatement not later than the thirtieth day after filing an original answer. Id. § 17.505(c) (Vernon 2002). Abatement is mandatory if, after a hearing, the trial court finds that a party entitled to notice did not receive it. Id. § 17.505(d) (Vernon 2002). Unless the consumers controvert the plea by filing an affidavit before the eleventh day after the filing of the plea, the abatement is automatic beginning on the eleventh day after the plea is filed, provided the plea in abatement is verified and alleges that the defendants did not receive the required written notice. Id.

In this case, the appellee filed a verified plea in abatement within thirty days of being sued under the DTPA, and the consumer-appellants failed to timely controvert the plea. Thus, the suit was automatically abated, and the trial court did not have the discretion to deny the plea.

It has been held that the notice requirement of section 17.505 of the business and commerce code is a condition precedent to appellants' recovery. See id. § 17.505; Investors, Inc. v. Hadley, 738 S.W.2d 737, 742 (Tex. App.-Austin 1987, writ denied) ("We know of no reason why the notice required by § 17.50A should not also be subject to Rule 54, since it is clearly a 'condition precedent' to recovery."); ⁽⁵⁾ see also U.S. Tire-Tech, Inc. v. Boeran, B.V., 110 S.W.3d 194, 200 (Tex. App.-Houston [1st Dist.] 2003, pet. denied). Because appellants did not comply with a condition precedent to recovery under the TDPA, they were not entitled to a submission to the jury under this theory. Id. We overrule the second issue.

3. Waiver

In their last issue, appellants contend that the trial court erred in submitting a waiver issue to the jury because it was not raised by the evidence. Waiver is defined as "an intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right." Jernigan v. Langley, 111 S.W.3d 153, 157 (Tex. 2003) (citing Sun Exploration & Prod. Co. v. Benton, 728 S.W.2d 35, 37 (Tex.1987); U.S. Fid. & Guar. Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.1971)). Waiver is largely a matter of intent. Jernigan, 111 S.W.3d at 156-57. For implied waiver to be found through a party's actions, intent must be clearly demonstrated by the surrounding facts and circumstances. Motor Vehicle Bd. v. El Paso Indep. Auto. Dealers Ass'n, Inc., 1 S.W.3d 108, 111 (Tex. 1999). There is no waiver of a right if the person sought to be charged with waiver says or does nothing inconsistent with an intent to rely upon such right. Maryland Cas. Co. v. Palestine Fashions, Inc., 402 S.W.2d 883, 888 (Tex. 1966). Waiver is ordinarily a question of fact, but when the facts and circumstances are undisputed, the question becomes one of law. Motor Vehicle Bd., 1 S.W.3d at 111.

A legal sufficiency challenge may only be sustained when: (1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-63 (1960). In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could, and disregard evidence contrary to the finding unless a reasonable factfinder could not have made such a finding. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

We review a trial court's decision to submit or refuse a particular instruction under an abuse of discretion standard of review. In the Interest of V.L.K., 24 S.W.3d 338, 341 (Tex. 2000)(citing Louisiana-Pacific Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex. 1998)). The trial court has considerable discretion to determine necessary and proper jury instructions. Id. A party is entitled to a jury question, instruction, or definition if the pleadings and evidence raise an issue. Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 456 (Tex. 2006); see Tex. R. Civ. P. 278; Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002).

Appellants maintain that the only evidence of waiver was appellants' refusal to pay appellee its full contract price. If that were indeed the only evidence of waiver, we would be inclined to agree with appellants. Rather, the evidence shows that appellee made several attempts to satisfy appellants. First, the evidence showed that appellee made many telephone calls to appellants attempting to address the alleged problems; however, the calls were not returned. This of course was disputed by appellants. Next, appellee offered to modify the scupper to alleviate, in whole or in part, the problem with pooling water. Appellants refused this offer of repair. Juan Vega expressly testified he was not given the opportunity to comply with the warranty portion of the contract and his company was not given the opportunity to go back to the job site to fix any problems. ⁽⁶⁾

Vega further testified he was prejudiced by appellants' conduct because they resorted to a lawsuit rather than to discuss the problems with him and allow his company the opportunity to fix any problems. Finally, had appellee been given the opportunity to remedy the problems, it could have performed the repairs at costs thousands of dollars less than those claimed by appellants.

Thus, there was evidence in the record that appellants intentionally gave up or relinquished rights under the contract for repairs or committed intentional conduct inconsistent with their contract right claims. See Jernigan, 111 S.W.3d at 157.

We hold that appellee raised an issue of fact that supported the submission of the jury question of waiver. See Motor Vehicle Bd., 1 S.W.3d at 111 (providing that waiver is ordinarily a question of fact). Accordingly, the trial court did not abuse her discretion by submitting the question of waiver to the jury. Dew, 208 S.W.3d at 456. This issue is overruled.

4. Conclusion

The judgment of the trial court is affirmed.

DON WITTIG,

Justice

Memorandum Opinion delivered and

filed this the 30th day of August, 2007.

1. Retired Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to section 74.003 of the Texas Government Code. See Tex. Gov't Code Ann. § 74.003 (Vernon 2005).

2. Appellants also argue that subsequent repairs were negligently made some months later. However, appellants' legal injury had already occurred and thus limitations had begun to run by June 2000.

3. If appellant meant to argue that the trial court disregarded the jury's negligence finding upon entry of judgment, or granted a judgment non obstante verdicto, the result would be the same. Suit was not filed until more than two years after the alleged breech of duty and legal injury. See Wexler v. Household Credit Services, Inc., 106 S.W.3d 277, 279 (Tex. App.-Dallas, 2003, no pet.).

4. The trial court could as well have directed a verdict on this claim based upon the statute of limitations.

5. Section 17.50A was renumbered as Texas Business and Commerce Code section 17.505 by Act approved May 25, 1987, 70th Leg., R.S., ch. 167, § 5.02(4), 1987 Tex. Gen. & Spec. Laws 1338, 1361, eff. Sept. 1, 1987.

6. Appellee was allowed to return to the job site on one occasion. Although appellants' complained of problems persisted, appellee was not afforded any further opportunity to address the concerns.