Thomas L. Tarbox v. Dave Thomson D/B/A Waterside Construction & Engineering

• Court: Court of Appeals of Texas
• Decided: October 30, 2008
• Docket: 09-07-00213-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-07-213 CV

THOMAS L. TARBOX, Appellant

V.

DAVE THOMSON d/b/a WATERSIDE

CONSTRUCTION & ENGINEERING, Appellee

On Appeal from the 411th District Court

Polk County, Texas

Trial Cause No. CIV 22,972

MEMORANDUM OPINION

This case involves the allegedly faulty construction of a bulkhead. After a bench trial, the court rendered a take-nothing judgment against the plaintiff, who then appealed. We affirm.

I. BACKGROUND

Thomas L. Tarbox contracted with Dave Thomson, doing business as Waterside Construction and Engineering, to build a steel bulkhead on Tarbox's waterfront lot located on Lake Livingston in Polk County, Texas. Construction on the bulkhead began in October 2002 and was completed in May 2003. Thomson guaranteed his work for two years.

After Thomson completed the bulkhead, he advised Tarbox to maintain the dirt level behind the bulkhead and to plant grass to prevent erosion. When a problem arose with the bulkhead in 2003, Thomson fixed it and again advised Tarbox to maintain the dirt level and to plant grass. When another bulkhead problem arose in 2005, Thomson again repaired it.

In September 2005, Hurricane Rita struck the upper Texas Gulf Coast and inundated Polk County and other Texas counties with rain. The hurricane damaged the Lake Livingston Dam, resulting in a drastic reduction of the lake's water level. Subsequently, Tarbox's bulkhead again developed problems.

After the hurricane, Tarbox requested that Thomson repair the bulkhead. In 2006, Thomson declined to perform further warranty repairs on the bulkhead, and Tarbox filed suit under various theories, namely, (1) breach of contract; (2) deceptive trade practices: unconscionable action or course of action, violations of section 17.46(b), and breaches of warranty; (3)common law fraud; (4) fraud in a real estate transaction; (5) negligence; (6) negligent misrepresentation; and (7) negligent hiring, supervision, and management.

The case was tried to the court. At the close of Tarbox's case, the trial court granted Thomson's motion for judgment on Tarbox's cause of action for breach of express warranties. After hearing the remaining evidence, the court granted a take-nothing judgment against Tarbox, denied both parties any recovery of attorney's fees, and taxed court costs to the party incurring them.

Tarbox requested that the trial court enter findings of fact and conclusions of law, and the trial court did so. Tarbox requested additional findings of fact and conclusions of law, and he complained on appeal about the trial court's failure to enter them. Without conceding error on the substance of the requested findings and conclusions, Thomson moved to abate the case and remand it to the trial court for action on Tarbox's request for additional findings and conclusions. We abated and remanded the case to the trial court for entry of such additional findings and conclusions necessary for the appellant to present his appeal.

Subsequently, the trial court entered sixteen additional findings. Tarbox then made another request for findings and objected to the absence of certain requested findings.

II. ISSUES

In his original brief, Tarbox presents eight issues in which he contends:

1. The trial court erred in refusing his request for additional findings of fact.

2. The trial court erred in denying Tarbox's motion for judgment on his claims brought under the Texas Deceptive Trade Practices Act ("DTPA").

3. The trial court erred in denying Tarbox's motion for judgment on his breach of contract claim.

4. The trial court erred in entering finding of fact 10d, which found that no grounds existed for Tarbox to recover on his claims for breach of contract, DTPA violations, common law fraud, fraud in a real estate transaction, negligent misrepresentation, and negligent hiring, supervision, or management.

5. The trial court erred in entering judgment for Thomson because finding no. 11 (Thomson is 30% negligent) fatally conflicts with finding no. 10d.

6. The trial court erred in concluding that Chapter 33 precludes Tarbox's recovery.

7. The trial court erred in granting Thomson's motion for judgment on Tarbox's express warranty claims.

8. The trial court erred in failing to award Tarbox attorney's fees on his causes of action for breach of contract and DTPA violations.

In his supplemental brief, Tarbox contends that (1) the trial court's amended findings of fact are still inadequate and (2) that the evidence is legally and factually insufficient to support the trial court's findings numbered 14-17, and 19-28.

III. SUFFICIENCY OF THE EVIDENCE

We begin our review with supplemental issue two, in which Tarbox argues that the evidence is legally and factually insufficient to support certain findings of fact, namely findings 14-17 and findings 19-28. Tarbox, however, provides briefing only for findings 14-17 and 19-23, which relate to his DTPA causes of action, and accordingly, we limit our review to those. See Tex. R. App. P. 38.1(h). As to the remainder of Tarbox's unbriefed arguments presented in supplemental issue two, we overrule them.

Standard of Review

We review challenges to the sufficiency of the evidence under well-established standards. When a party attacks the legal sufficiency of the evidence supporting an adverse finding on an issue for which he had the burden of proof at trial, he must show on appeal that, as a matter of law, the evidence establishes all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In determining whether the evidence is legally sufficient to support a trial court's fact finding, appellate courts must view the evidence in the light favorable to the verdict, crediting favorable evidence if a reasonable fact finder could and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005).

When a party attacks the factual sufficiency of the evidence supporting an adverse finding on an issue for which he has the burden of proof, he must show on appeal that the adverse finding is so contrary to the great weight and preponderance of the evidence as to be clearly wrong and unjust. Francis, 46 S.W.3d at 242; see also W. Wendell Hall, Standards of Review in Texas, 38 St. Mary's L. J. 47, 264-65 (2006). In its review, the appellate court must consider and weigh all of the evidence. Francis, 46 S.W.3d at 242.

Producing Cause:

Element of DTPA Cause of Action

We review finding 23 first because its resolution disposes of Tarbox's DTPA claims and impacts his other issues and arguments as well. Finding 23 states, "Defendant's actions were not a producing cause of Plaintiff's damages, if any." "Producing cause" is an element of Tarbox's DTPA causes of action for which he had the burden of proof at trial. See Tex. Bus. & Com. Code Ann. § 17.50(a) (Vernon Supp. 2008); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 649 (Tex. 1996). To establish that Thomson's alleged faulty construction of Tarbox's bulkhead was a producing cause of its failure, Tarbox had to prove: 1) Thomson's actions were a substantial cause of the failure, and 2) Thomson's actions were such that the failure would not have occurred but for them. See Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46 (Tex. 2007). Thus, the evidence must be legally and factually sufficient on both elements of producing cause for Tarbox to prevail on his challenge to finding 23. Further, the fact finder is the sole judge of the credibility of the witnesses and the weight to give their testimony. See City of Keller, 168 S.W.3d at 819 (explaining that a fact finder "may choose to believe one witness and disbelieve another"). Producing cause usually is a question of fact. See Jones v. Ray Ins. Agency, 59 S.W.3d 739, 751 (Tex. App.-Corpus Christi 2001, pet. denied).

Evidence On Producing Cause

The parties presented evidence on three possible causes for the failure of Tarbox's bulkhead: 1) Thomson's alleged faulty construction; 2) Tarbox's alleged failure to backfill the bulkhead properly; and 3) the alleged effects of Hurricane Rita. The trial court specifically found that Tarbox failed to maintain a proper dirt level and to plant sufficient grass behind the bulkhead. The court also found that the drop in the lake level caused unequal pressure on the bulkhead, contributing to its failure.

In Tarbox's opinion, Thomson's allegedly faulty construction, consisting of an alleged inadequate depth of the bulkhead's steel sheets, caused Tarbox's bulkhead problems. Further, Tarbox contends that neither the hurricane nor his lack of backfilling caused the bulkhead's failure. Tarbox presented no expert testimony to support his conclusions, and he was the only witness to testify in support of his case.

Tarbox stated that problems with his bulkhead did not occur until roughly a month or month and a half after Hurricane Rita. While conceding on cross-examination that quite a few bulkhead problems occurred on Lake Livingston in the aftermath of Hurricane Rita, Tarbox also testified that there were "hardly any" in his area of the lake. When asked whether there were some in his area, Tarbox said, "Yes." Tarbox further contended that the bulkhead problems his neighbors had were caused by the shift of their land mass. Tarbox also conceded that all of the water was completely removed from the lake side of his bulkhead when the Trinity River Authority (TRA) lowered the lake level.

In Thomson's opinion, Hurricane Rita had "a lot of effect" on Tarbox's bulkhead problems. Thomson testified that the hurricane damaged many bulkheads to the extent that they fell into the water. Thomson also testified that his construction was good and met or exceeded standards then in use for bulkhead construction. He testified that he informed Tarbox of the need to backfill the bulkhead. Thomson also presented testimony from other witnesses about the hurricane's effect, the need for proper backfill, and Tarbox's failure to backfill properly.

Richard Gerard, supervisor of the permits department of the TRA, testified. Gerard explained that his department regulates the permits for construction, including bulkheads, on Lake Livingston. Before becoming supervisor, Gerard inspected construction, including bulkheads. Gerard did not personally inspect Tarbox's bulkhead, but he reviewed the TRA's inspection report. Tarbox's bulkhead passed the TRA inspection. Gerard also testified that the most common cause of failure in relatively new bulkheads was improper backfilling. Gerard explained that backfill should be kept higher than the top level of the wall so that surface runoff will not stand over the area containing the backfill and soak into the ground, thereby creating a heavier backfill. According to Gerard, heavier backfill puts added pressure on the backside of the bulkhead and pushes it out towards the lake.

Gerard also testified about damage to bulkheads caused by Hurricane Rita. He stated that the hurricane caused significant damage to bulkheads on Lake Livingston and caused many to fail. He explained that the hurricane caused numerous failures because "the action of the hurricane itself, just the mere windforce created high wave action that was pounding on bulkheads. It literally just demolished the bulkheads during the storm action."

After the hurricane, bulkhead failures on Lake Livingston continued. Gerard testified that problems with the Lake Livingston dam caused the TRA to lower the lake level by four feet, which took away water in front of the bulkheads and created pressure from the backside. The pressure caused the bulkheads to either kick out at the bottom or, in some cases, at the top if the deadmen failed. According to Gerard, the effects on the bulkheads were not immediate but instead "took some time" before they became apparent.

David Bunker, a former employee of Thomson's, testified that he worked on the two repairs of Tarbox's bulkhead. Bunker testified that on the first repair job, which occurred approximately two months after completion of the bulkhead, he noticed that the backfill was about a foot and a half below the wall's grade. On the second repair job, he again noticed a lack of backfill, which he considered to be the cause of the blowout.

As to legal sufficiency, the testimony is conflicting. Tarbox introduced evidence that Thomson's actions caused his damages; Thomson says they did not. The trial court could have determined Thomson's testimony and that of other witnesses regarding the cause of bulkhead failures on Lake Livingston to be more credible. See City of Keller, 168 S.W.3d at 819.

As to factual sufficiency, the great weight and preponderance of the evidence does not show that Thomson's actions were a substantial cause of the bulkhead's failure. Gerard presented compelling testimony on damage caused to bulkheads by the hurricane and by the TRA's lowering of the lake level. Gerard also presented testimony on the need to backfill, and other witnesses testified about the inadequate backfill at Tarbox's bulkhead. Further, Tarbox presented no expert testimony to support his opinion that Thomson's alleged faulty construction caused the bulkhead's failure.

We find Tarbox failed to meet his burden to establish that the trial court's finding on causation is against the great weight and preponderance of the evidence. Based on the evidence, the trial court could have concluded that Thomson's actions were not a substantial cause of Tarbox's damages, and thus, they are not sufficient to constitute a producing cause. See Ledesma, 242 S.W.3d at 46. Accordingly, we find that Tarbox has not met his burden of showing that the trial court's causation finding is against the great weight and preponderance of the evidence, or that it is supported by no evidence. We overrule Tarbox's challenge to finding of fact 23.

As to the remainder of the challenged findings related to Tarbox's DTPA claims, we overrule them also. Tarbox's failure to procure a producing cause finding negates an element of each of his DTPA causes. Thus, we need not consider his challenges to findings 14, 15, 16, 17, 19, 20, 21, and 22 because a favorable determination still would not result in a favorable resolution of Tarbox's DTPA claims. ⁽¹⁾ See Tex. R. App. P. 47.1.

Having disposed of all of Tarbox's arguments, we overrule supplemental issue two.

IV. MOTION FOR JUDGMENT: BREACH OF CONTRACT

In issue three, Tarbox contends that the trial court erred in denying his motion for judgment on his breach of contract claim. Tarbox asserts he proved as a matter of law that Thomson made a promise, breached the promise, and thereby damaged him. Tarbox focuses on the trial court's finding that Thomson was thirty-percent negligent, and as we understand his argument, contends that this finding establishes Thomson's breach of the contract as a matter of law. As authority, Tarbox cites Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (Tex. 1947). In that case, the Texas Supreme Court stated: "Accompanying every contract is a common-law duty to perform with care, skill, reasonable expedience and faithfulness the thing agreed to be done, and a negligent failure to observe any of these conditions is a tort, as well as a breach of the contract." Id. at 510. More recently, however, the Supreme Court explained:

The contractual relationship of the parties may create duties under both contract and tort law. Montgomery Ward & Co. v. Scharrenbeck, 146 Tex. 153, 204 S.W.2d 508 (1947). The acts of a party may breach duties in tort or contract alone or simultaneously in both. The nature of the injury most often determines which duty or duties are breached. When the injury is only the economic loss to the subject of a contract itself, the action sounds in contract alone.

Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986) (citing Mid-Continent Aircraft Corp. v. Curry County Spraying Serv., 572 S.W.2d 308, 312 (Tex. 1978); Nobility Homes of Tex., Inc. v. Shivers, 557 S.W.2d 77 (Tex. 1977)) (emphasis added).

In this case, Tarbox sought recovery of economic loss; thus, his cause of action sounds in contract alone. See id. Therefore, to the extent the original negligence finding might have concerned Thomson's construction of the bulkhead, it is irrelevant.

Further, the amended finding, which expressly addresses duties arising "independent of the contract," specifically excludes its application to contract claims. We fail to see how a finding of negligence relating to duties independent of the contract proves breach of contract as a matter of law. Issue three is overruled.

V. CONFLICTING FINDINGS

Issue five asserts that the trial court erred in entering judgment for Thomson because finding 11 fatally conflicts with finding 10d. Finding 11, as amended, states:

The defendant was 30% responsible for the negligent performance of the parties' duties regarding the bulkhead that arose independent of the contract between the parties and the plaintiff was 70% responsible for the negligent performance of the parties' duties regarding the bulkhead that arose independent of the contract between the parties.

Finding 10d states: "There are no grounds for plaintiff to recover for breach of contract, DTPA, common law fraud, fraud in a real estate transaction, negligent misrepresentation and negligent hiring, supervision and/or management." Tarbox argues that "with respect to the DTPA and breach of contract causes of action, the trial court's finding that Thomson was thirty percent (30%) negligent conflicts [with] the finding of fact No. 10(d) that Tarbox had 'no grounds' to recover for DTPA, breach of contract, etc."

We review an alleged conflict between findings of fact by the same standard applied to an alleged conflict between answers to jury questions. See Hartford Ins. Co. v. Jiminez, 814 S.W.2d 551, 552 (Tex. App.-Houston [1st Dist.] 1991, no pet.). The appellate courts harmonize the findings if there is "any reasonably possible basis upon which they may be reconciled." Bender v. S. Pac. Transp. Co., 600 S.W.2d 257, 260 (Tex. 1980). In our review, "the threshold question is whether the findings are about the same material fact." Id. In this case, finding 11 concerns negligent performance of duties that are independent of the contract. Tarbox had the burden of proof on his DTPA and his breach of contract claims. Finding 10d (no grounds for recovery) is the equivalent of the trial court's failing to find that Tarbox proved the elements required to establish his claims. Tarbox fails to argue or explain how the findings of 10d and 11 are on the same material facts. We fail to see how there is a conflict between the trial court's failure to find in Tarbox's favor on the DTPA theories and the court's finding that Thomson negligently performed duties that arose independent of the contract between the parties. Further, 10d's finding of no grounds for recovery for breach of contract, on its face, does not conflict with finding 11, which applies only to duties independent of the contract. Tarbox has failed to show that findings of fact 10d and 11 are in conflict. We overrule issue five.

VI. REMAINING ISSUES

Motion for Judgment: DTPA

Issue two of Tarbox's original brief contends the trial court erred in denying his motion for judgment on his DTPA claims because he proved as a matter of law one or more violations of the DTPA. However, as explained above, Tarbox failed to prove "producing cause" as a matter of law, and proving that element is necessary for recovery on DTPA causes of action. See Tex. Bus. & Com. Code Ann. § 17.50(a). We overrule issue two.

Motion for Judgment: Express Warranties

Issue seven maintains that the trial court erred in granting Thomson's motion for judgment on Tarbox's express warranties claim. After the trial court ruled against Tarbox on his express warranty theories, the record reflects that Thomson presented his defense, during which time both parties again addressed the express warranty. Thomson's testimony indicates that he agreed to repair the bulkhead for defects in material or workmanship for a period of two years, and did so during that time period. However, Thomson denied that the warranty he made to Tarbox was unconditional, covered everything, or extended to five years. Tarbox's counsel cross-examined Thomson on the express warranty claim, and the trial court did not exclude any evidence offered on the claim. At the trial's conclusion, the court expressly found, "No express warranty lasting more than two years in duration was created," and " No express warranty was breached."

Because the record reflects that the parties presented the court with evidence on the express warranty claim after the trial court had granted Thomson's motion, and that the trial court, at the conclusion of the testimony, made specific findings to address Tarbox's express warranty claim, we fail to see how the ruling harmed Tarbox. See Tex. R. App. P. 44.1(a). We overrule issue seven.

No Grounds for Recovery

Issue four contends that the trial court erred in finding there were no grounds for Tarbox "to recover for breach of contract, DTPA, common-law fraud, fraud in a real estate transaction, etc. as such finding is against the great weight and preponderance of the evidence." Because Tarbox provides no argument or authorities to support his contentions regarding "common-law fraud, fraud in a real estate transaction, etc.," ⁽²⁾ we do not consider them. See Tex. R. App. P. 38.1(h). Rather, we review the ones he briefed, which are his DTPA and breach of contract claims.

As discussed above, Tarbox's DTPA claims required that he prove Thomson's actions were a producing cause of his damages. Because Tarbox failed to do so, the trial court did not err in finding he had no grounds for recovery under his DTPA causes of action.

In his contention that the trial court erred in determining that he had no grounds for recovery under his breach of contract claim, Tarbox challenges the factual sufficiency of the evidence supporting that finding. To recover for a breach of contract claim, the plaintiff must show that his damages are "the natural, probable, and foreseeable consequence of the defendant's conduct." Mead v. Johnson Group, Inc., 615 S.W.2d 685, 687 (Tex. 1981). "The absence of this causal connection between the alleged breach and the alleged damages will preclude recovery." Prudential Secs., Inc. v. Haugland, 973 S.W.2d 394, 397 (Tex. App.-El Paso 1998, pet. denied) (citation omitted). Because Tarbox failed to establish the causal connection between his damages and Thomson's actions, we overrule issue four.

Additional Findings of Fact

Issue one of Tarbox's original brief asserted that the trial court erred in refusing his request for additional findings of fact. Subsequent to the filing of the original appellant's brief, we abated and remanded this case to the trial court for entry of additional facts necessary for Tarbox to present his appeal, and the trial court entered additional findings.

Tarbox then asserted in supplemental issue one that the trial court failed to make findings related to the defendant's statute of frauds defense and to "some of Plaintiff's claims." However, Tarbox does not further identify the claims for which he contends the trial court did not make findings. Tarbox then argues that he could not properly present his case on appeal because the trial court failed to make certain additional findings that he requested.

Tarbox does not tell us which part of his case he allegedly was unable to present properly, and we decline to make his arguments for him. See Tex. R. App. P. 38.1(h). Moreover, because the trial court found that Thomson's actions were not a producing cause of Tarbox's damages, we do not see how the lack of additional findings requested by Tarbox was harmful. Because Thomson has not demonstrated how he was harmed by the trial court's failure to make additional findings, we overrule issue one and supplemental issue one.

Conclusion of Law

In issue six, Tarbox challenges the trial court's conclusion of law that Tarbox was precluded from recovering under Chapter 33 of the Texas Civil Practice and Remedies Code. Tarbox argued that Chapter 33 did not apply to all of his causes of action. After the parties filed their briefs in the Court of Appeals, the trial court amended the finding and narrowed it to specify that Tarbox is barred from recovery on his negligence claim. Tarbox has not argued that Chapter 33 does not apply to tort claims. See Tex. Civ. Prac. & Rem. Code Ann. §§ 33.001, 33.002(a)(1) (Vernon 2008). As there is no dispute that Chapter 33 applies to negligence claims, and under a negligence theory the trial court found Tarbox's percentage of responsibility exceeded 50%, we overrule issue six.

Attorney's Fees

Issue eight maintains that the trial court erred in failing to award attorney's fees on Tarbox's breach of contract and DTPA claims. Because Tarbox did not prevail on those causes of action, we overrule issue eight. See Mustang Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 S.W.3d 195, 201 (Tex. 2004); Guzman v. Ugly Duckling Car Sales of Tex., L.L.P., 63 S.W.3d 522, 526 (Tex. App.-San Antonio 2001, pet. denied); see also Tex. Bus. & Com. Code Ann. § 17.50(d). Accordingly, having overruled all of Tarbox's issues and arguments, we affirm the trial court's judgment.

AFFIRMED.

_____________________________

HOLLIS HORTON

Justice

Submitted on April 3, 2008

Opinion Delivered October 30, 2008

Before McKeithen, C.J., Kreger and Horton, JJ.

1. The findings are: (14) representation about quality of services; (15) no express warranty; (16) no breach of express warranty; (17) no damages attributable to breach of express warranty; (19) Thomson performed the services in a good and workmanlike manner; (20) the goods and services were of the character or quality promised; (21) Tarbox did not suffer any damages from breach of implied warranty or from any of Thomson's actions; (22) Thomson did not knowingly commit any action that caused harm to Tarbox.

2. The "etc." apparently refers to the remainder of finding 10d, which also includes "negligent misrepresentation and negligent hiring, supervision and/or management."