Liptak v. Pensabene

736 S.W.2d 949
CourtCourt of Appeals of Texas
DecidedSeptember 11, 1987
DocketNo. 12-86-0249-CV
StatusPublished
Cited by1 cases

This text of 736 S.W.2d 949 (Liptak v. Pensabene) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Liptak v. Pensabene, 736 S.W.2d 949 (Tex. Ct. App. 1987).

Opinion

COLLEY, Justice.

This is a DTPA suit.1 Plaintiffs/appel-lees Constance Troulinos and Daphne G.T. [951]*951Pensabene, mother and daughter, recovered a judgment for actual and treble damages and attorneys’ fees against defendants/appellants Richard A. Liptak and Dar-thy Liptak based on a jury verdict favorable to appellees. We affirm the judgment.

Appellants present eight points of error, contending: (a) the court erred in submitting special issues numbers 1, 3, and 7 as framed; (b) the evidence is factually insufficient to support the affirmative answers of the jury to special issues numbers 1, 2, 5, 6, 7, and 12; (c) the affirmative answers to special issues numbers 1 and 7 are in fatal conflict with the negative answer of the jury to special issue number 3, precluding judgment in favor of appellees; (d) the court erred in overruling appellant’s objection to William Routon’s testimony as to a reasonable attorney’s fee for appellees; and (e) the court erred in submitting special issue number 10 because there is no evidence that the estimates by appellees’ expert witnesses of the cost of repairs were reasonable and necessary.

Appellants Dr. Liptak and his wife, Dar-thy Liptak, sold a house and lot (2.75 acres) to appellees on May 10, 1984, under a contract of sale. The purchase price was $125,000.00. The sales contract required appellants to furnish appellees before the closing “a written report by a Structural Pest Control Business — stating that there is no visible evidence of active termites or visible damage to the improvements from the same in need of repair.” The property was inspected by an employee of A-l Lone Star Termite & Pest Control, a business owned by Jerry King. After the inspection, King signed a written report stating in part, “[n]o visible evidence of infestation from wood destroying insects was observed.”

The evidence conclusively establishes that the structure of the house was heavily damaged by termite activity occurring over a period of four to ten years preceding the sale, and that at the time of the sale, it was infested with live termites. One expert witness, Fred Minton, an employee of the Texas Structural Pest Control Board, testified the termites that damaged the house were of a species known as “subterranean” that “eat” from the ground up through wood structures and that in his opinion, based on the damages he observed, the infestation had existed in the house from four to ten years. It is undisputed that appellees discovered the presence of the termites within two weeks following the sale.

Both appellants denied that they had any pre-sale knowledge that the house was infested by termites, and there is no direct evidence that they did. Dr. Liptak testified that during the time he and his wife lived in the house, from 1978 to September 1982, he painted most of the interior of the house, including the walls and areas where extensive termite damage had occurred such as the bathrooms, bedrooms and family room. Dr. Liptak also testified that he lived in the house periodically between September 1982 until the sale of the house on May 10, 1984.

Appellee Troulinos testified that about two weeks after the sale, she noticed a mud tunnel in the ceiling of a bathroom located in the “middle” of the house and observed termites coming out of that tunnel. She related that shortly thereafter, paneling in the breakfast room area “popped” loose and that she saw termites in another bathroom. She further testified that the family room ceiling was “sinking down,” and that the wall boards joining the brick fireplace separated from the fireplace.

Appellee Pensabene testified that termites swarmed in the house within two weeks after the sale. She further testified that when she was scrubbing the walls in her bathroom her hand went through the board and she observed that the wood behind the wall panel was heavily damaged by termites.

By points 3, 4, and 6, appellants assert that the jury’s answers to special issues numbers 5, 6, and 12 are so contrary to the [952]*952great weight and preponderance of the evidence as to be manifestly unjust.

These issues and the answers thereto read:

SPECIAL ISSUE NO. 5:
Do you find from a preponderance of the evidence that on or before May 10, 1984, the Defendants failed to disclose to Daphne G.T. Pensabene and Constance Troulinos that the house they were buying had a termite infestation? You are instructed that in connection with this special issue, a person fails to disclose information only when (1) the information was known to that person at the time of the transaction, (2) the failure to disclose was intended to induce Plaintiffs into the transaction in question, and (3) Plaintiffs would not have entered into the transaction in question if the information had been disclosed.
Answer “We do” or “We do not.”
ANSWER: We do.
SPECIAL ISSUE NO. 6:
Do you find from a preponderance of the evidence that this act of the Defendants was a producing cause of damage which adversely affected the Plaintiffs?
Answer “We do” or “We do not.”
ANSWER: We do.
SPECIAL ISSUE NO. 12:
Do you find from a preponderance of the evidence that Defendant knowingly made the representations, if any, asked about in Issues No. 1, 3, 5, and 7?
You are instructed that “knowingly” means actual awareness of the falsity or deception, if any, of the representations made by Defendants, if any, but actual awareness may be inferred where objective manifestations indicate that a person acted with actual awareness.
Answer “We do” or “We do not.”
ANSWER: We do.

Appellee Troulinos testified that she had worked part-time for some eight to ten years as a real estate salesperson in Houston and that she was aware of the damage termites can cause to homes. She also testified that during the time she worked in the real estate business in Houston she was aware that requiring inspections of properties offered for sale and the procuring of a certificate that the properties are not termite-infested were sound business policies. She testified that she wanted the house in question inspected for the presence of termite activity or damages and a termite certificate issued on the basis thereof showing that the house was not infested with these insects.

Appellants contend in their argument under their third point that Troulinos’ testimony, summarized above, shows that appellees relied solely on the pre-sale termite report signed by King that the house was not visibly infested with termites. Therefore, appellees did not produce sufficient evidence to prove that any of the representations made by Dr. Liptak or appellants’ failure to disclose the “termite infestation,” found by the jury in answer to special issue number 5, was a producing cause of appellees’ damages. This argument strongly implies that the incorrect report by King constituted the sole producing cause of the damages. We do not agree with that essay of the evidence. This argument overlooks the appellees’ testimonies that if appellants had disclosed that the house was so infested they would not have purchased the property.

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