Pools by Pool of Athens and Garland Pool v. Mark and Linda McGaugh

• Court: Court of Appeals of Texas
• Decided: June 20, 2013
• Docket: 10-11-00235-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-11-00235-CV

POOLS BY POOL OF ATHENS AND GARLAND POOL, Appellants v.

MARK AND LINDA MCGAUGH, Appellees

From the 13th District Court Navarro County, Texas Trial Court No. 07-16872-CV

MEMORANDUM OPINION

Mark and Linda McGaugh contracted with Garland Pool d/b/a Pools by Pool of

Athens for the installation of an in-ground swimming pool at the McGaughs’ residence.

The McGaughs experienced several problems with the pool, including: alleged leaking

and problems with the pool liner; the pool base; the pool steps; and the electrical

connection for the pool pumping system. The McGaughs claimed that the alleged

leaking damaged their foundation, and they incurred expenses for foundation repair, plumbing, engineering, and home inspection.

The McGaughs eventually backfilled the pool and sued Pool, asserting various

causes of action, including breach of contract. After a bench trial, the trial court issued

findings of fact and conclusions of law and found for the McGaughs on their claim for

breach of contract. Among other findings, the trial court found that the pool leaked and

that Pool’s workmanship was the cause of the leaks. The trial court awarded the

McGaughs $35,524.53 in actual damages, $14,850.00 in attorney’s fees, and $745.00 in

court costs. Pool appeals, proceeding pro se.

Pool’s pro se brief is deficient in several respects; for example, it lacks an

appendix and citation to any legal authorities, and it does not properly present the

issues raised. See TEX. R. APP. P. 38.1. Pool’s overall complaint is that there is no

evidence that the pool actually leaked, and he attempts to support that complaint with

nineteen listed items (referred to by Pool as “issues”) that discuss the evidence in the

case, intermixed with argument. We invoke Rule 2 and will suspend Rule 38.1’s

requirements and will address Pool’s legal sufficiency complaint. See TEX. R. APP. P. 2;

see also In re Jordan, 264 S.W.3d 850, 852 n.1 (Tex. App.—Waco 2008, no pet.) (stating that

we review and evaluate pro se briefs with patience and liberality).

The elements of a breach of contract claim are (1) the existence of a valid contract

between plaintiff and defendant, (2) the plaintiff’s performance or tender of

performance, (3) the defendant’s breach of the contract, and (4) the plaintiff’s damage as

a result of the breach. Runge v. Raytheon E-Systems, Inc., 57 S.W.3d 562, 565 (Tex. App.—

Waco 2001, no pet.).

Pool v. McGaugh Page 2 We construe Pool’s complaint that there is no evidence that the pool leaked to be

a complaint that he did not breach the contract in that respect and that the McGaughs’

damages pertaining to the alleged leaking are not recoverable because there was no

leaking.

In reviewing the legal sufficiency of the evidence, we view the evidence in the

light favorable to the finding, crediting favorable evidence if a reasonable factfinder

could, and disregarding contrary evidence unless a reasonable factfinder could not. See

City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). We must not substitute our

opinion on witness credibility for that of the factfinder. See id. at 816-17. There is

legally insufficient evidence or “no evidence” of a vital fact when (a) there is a complete

absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence

from giving weight to the only evidence offered to prove a vital fact; (c) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence

conclusively establishes the opposite of the vital fact. Merrell Dow Pharms., Inc. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997).

Regarding the leaking, Linda McGaugh testified:

 Soon after the pool was finished, they found holes in the liner on both sides of the pool’s steps, and water leaked behind the liner for several days before the McGaughs could fill the holes with silicone.

 There was a leak at the bottom of the third step.

 They had to constantly fill up the pool, more than expected from normal evaporation.

 Two of the jets in the pool leaked due to a broken pipe.

Pool v. McGaugh Page 3  The grass between the pool and the house was wet and “always squishy.”

 They hired two different plumbers to test their house plumbing for leaks to eliminate it as a source of the leaking, and each plumber found no problem.

Damon Shirley, a plumber, testified that he installed a French drain near the

McGaughs’ pool. Mark McGaugh had previously drilled some holes near the pool with

an auger and the holes had standing water in them. Shirley dug a trench for the French

drain piping, and in doing so, determined that, in his opinion, water was coming from

near the pool’s steps. About two hours after installing the French drain, water began to

drain through it. In Shirley’s opinion, the leaking water had been going under the

McGaughs’ house.

Norman Gorzynski, a pool builder, testified that he inspected the McGaughs’

pool. He did a dye test and found a leak in the pool’s return line. Ralph Mansour, a

professional engineer, testified that he was retained by the McGaughs to inspect their

house, and he determined that the pool leak had caused the house’s foundation to shift.

Having reviewed all the evidence in the light most favorable to the McGaughs as

the prevailing parties, and considering that the trial court as factfinder determines

witness credibility, we hold that the evidence is legally sufficient to support the trial

court’s findings of breach of contract and damages pertaining to the leaking pool.

Accordingly, we overrule Pool’s legal sufficiency complaint and affirm the trial

court’s judgment.

REX D. DAVIS Justice

Pool v. McGaugh Page 4 Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed June 20, 2013 [CV06]

Pool v. McGaugh Page 5