William C. Stoll and Victor Lopez v. Dan A. Braden, Maria L. C. Rivera and Eloise Key

• Court: Court of Appeals of Texas
• Decided: May 6, 1999
• Docket: 03-97-00732-CV
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-97-00732-CV

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William C. Stoll and Victor Lopez, Appellants

v.

Dan A. Braden, Maria L. C. Rivera and Eloise Key, Appellees

FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY

NO. 231,507, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING

William C. Stoll and Victor Lopez (collectively "Stoll") appeal from the trial-court judgment against them for damages and attorney's fees under the Texas Deceptive Trade Practices Act. See Tex. Bus. & Com. Code Ann. §§ 17.41-.826 (West 1987 & Supp. 1999) ("DTPA"). We will affirm the trial-court judgment.

The Controversy

In March 1993, a hailstorm damaged the roof of a duplex at 10805 Lambert Circle in Austin. Appellees Dan A. Braden, Maria L.C. Rivera and Eloise Key (collectively "Braden") owned the duplex, which Stoll managed. Stoll employed Turn-Key Property Maintenance to replace the roof. Stoll and Lopez were the only two partners in Turn-Key Property Maintenance. ⁽¹⁾ Stoll did not remove the old roof and replace it with a new one as requested, but installed a new roof over the old roof ("the 1993 roof"). This practice is known as a "nailover."

In January 1996, Braden sought to sell the duplex. An inspection revealed problems with the 1993 roof. The inspector discovered that a nailover had been performed. The nails used were too short, were pulling out of the roof, and were starting to puncture shingles. This was Braden's first notice of the defective manner in which Stoll had installed the 1993 roof. The potential buyer was unable to insure the property with the 1993 roof in place and could not obtain a loan until the existing roofs were torn off and a new roof installed. Braden demanded that Stoll replace the 1993 roof. When Stoll refused, Braden paid a contractor to install a new roof ("the 1996 roof"). Braden demanded that Stoll pay for the 1996 roof on April 8, 1996. Stoll refused, and this litigation ensued.

After a bench trial, the court found for Braden and found that Stoll's DTPA violations had been committed knowingly. Braden recovered $2,825 in economic damages, $5,650 in treble damages, and $5,875 in attorney's fees. No findings of fact or conclusions of law were requested or made. Accordingly, we will affirm the trial-court judgment if it can be upheld on any legal theory that finds support in the evidence. See In re W. E. R., 669 S.W.2d 716, 717 (Tex. 1984); Seaman v. Seaman, 425 S.W.2d 339, 341 (Tex. 1968).

Discussion and Holdings

On appeal, Stoll brings six issues: (1) his agency relationship with Braden precluded any DTPA liability; (2) there was no express or implied warranty and thus no DTPA liability; (3) there was no knowing DTPA violation to support multiplying damages; (4) the express warranty, if any, was for labor only and could not support a judgment that included materials; (5) the court erred in its damage award because Braden failed to produce "evidence necessary" to support the award; and (6) the court erred in failing to credit Stoll with value received by Braden.

Stoll cites no authority and makes no record references in support of his first, third and fourth issues. See Tex. R. App. P. 38.1(h). Nevertheless, we will consider these issues. Id. at 38.9(b) (appellate court has variety of options in dealing with substantive briefing defects to achieve purpose of a "satisfactory submission of the case").

DTPA Liability--Agency

In his first issue, Stoll claims that he cannot have liability under the DTPA because of his capacity as an agent for Braden. Stoll complains that Braden impermissibly wants to "separate Mr. Stoll into two persons." However, a person may act in multiple capacities. Stoll was sued in his capacity as a partner in Turn-Key Property Maintenance, a Texas general partnership. As such, Turn-Key Property Maintenance is a separate legal entity. See Texas Revised Partnership Act, Tex. Rev. Civ. Stat. Ann. art. 6132b-2.01 (West Supp. 1999). An action may be brought against a partnership and any or all of the partners in the same or separate suits. Id. § 3.05(b). There was no evidence that Turn-Key Property Maintenance was Braden's agent. That Stoll acted as Braden's agent for certain purposes does not preclude his liability as a partner in Turn-Key Property Maintenance. We overrule issue one.

DTPA Liability--Warranty

In his second issue, Stoll claims that he did not warrant the roof; therefore, a judgment finding liability under the DTPA for breach of warranty was improper. ⁽²⁾ Stoll misunderstands the judgment. Braden's trial pleadings claimed that Stoll violated section 17.46(b) of the DTPA by representing that goods or services had characteristics, uses or benefits which they did not have and by representing that work or services had been performed on goods when the work or services had not been performed. See DTPA § 17.46(b)(5), (b)(21). The court rendered a general judgment for the plaintiff. Although Braden also pleaded a breach of a written "warranty extension" because of Stoll's failure to replace the 1993 roof, that theory is not necessarily the one under which the court decided the case.

The invoice Stoll prepared for the 1993 roof specified that the old roof had been torn off down to the decking and replaced. This representation was untrue. Stoll does not controvert that he did a nailover instead of the requested replacement. A roofer testified concerning the defective work done in installing the 1993 roof. There is legally and factually sufficient evidence to support recovery based on these specific DTPA violations and thus uphold the judgment. See W. E. R., 669 S.W.2d at 717. We overrule issue two.

DTPA Liability--Knowing Violation

In his third issue, Stoll contends that there was no knowing DTPA violation to support multiplying the economic damages awarded in the judgment. A "knowing" DTPA violation requires actual awareness at the time of the falsity or deception that the representation was false or deceptive. See DTPA § 17.45(9). As discussed above, Stoll did not controvert that a nailover rather than the represented replacement was done. There is sufficient evidence to support the court's finding of a knowing violation. See Hugh Wood Ford, Inc. v. Galloway, 830 S.W.2d 296, 298 (Tex. App.--Houston [14th Dist] 1992, writ denied) (evidence that dealership did not replace parts it had agreed to replace). We overrule issue three.

DTPA Liability--Express Warranty

In his fourth issue, Stoll contends that, even if there were an express warranty, it was for labor only and could not support a judgment awarding damages for materials. As discussed above, the general judgment was supported by evidence of violations of DTPA § 17.46, and the amount of economic damages awarded found support in the evidence. We overrule issue four.

Damages

In his fifth issue, Stoll argues that the court "erred in awarding damages based on the evidence." Stoll argues that Braden failed to produce "evidence necessary" to support the amount of damages awarded under either the "benefit of the bargain" or "out of pocket" measure of damages. Braden responds that the DTPA allows recovery for the cost of repair and replacement under these facts. We agree.

The cost of repair is an appropriate measure of damages to a home when the repair is feasible and does not involve economic waste. See Ortiz v. Flintkote Co., 761 S.W.2d 531, 536 (Tex. App.--Corpus Christi 1988, writ denied); Jim Walter Homes, Inc. v. Mora, 622 S.W.2d 878, 883 (Tex. App.--Corpus Christi 1981, no writ); Greene v. Bearden Enters., Inc., 598 S.W.2d 649, 652-53 (Tex. App.--Fort Worth 1980, writ ref'd n.r.e.). Stoll does not contend that the price Braden paid for the 1996 roof was unreasonable or that replacing the roof caused economic waste. Accordingly, we overrule issue five.

Failure to Credit

In his sixth issue, Stoll contends that the trial court's failure to credit him with two items resulted in a "windfall" for Braden and caused an improper calculation of out-of-pocket damages. These items are: (1) the difference between the amount Braden received from his insurance company in 1993 and the amount Stoll charged for the 1993 roof and (2) the value of Braden's three years of use of the roof. As noted above, the trial court was not confined to out- of-pocket damages and there was sufficient evidence to support the amount of economic damages. awarded. We overrule issue six.

Conclusion

We have overruled all of Stoll's issues presented. Accordingly, we affirm the trial-court judgment.

Lee Yeakel, Justice

Before Chief Justice Aboussie, Justices Jones and Yeakel

Affirmed

Filed: May 6, 1999

Do Not Publish

1. Braden sued the partnership Turn-Key Property Maintenance and Stoll and Lopez individually. The judgment was against the partnership and Stoll and Lopez individually. The notice of appeal named only Stoll and Lopez as appellants.

2. Stoll does not indicate, in this or any other issue, whether he is bringing a legal or factual sufficiency challenge.

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In his third issue, Stoll contends that there was no knowing DTPA violation to support multiplying the economic damages awarded in the judgment. A "knowing" DTPA violation requires actual awareness at the time of the falsity or deception that the representation was false or deceptive. See DTPA § 17.45(9). As discussed above, Stoll did not controvert that a nailover rather than the represented replacement was done. There is sufficient evidence to support the court's finding of a knowing violation. See Hugh Wood Ford, Inc. v. Galloway, 830 S.W.2d 296, 298 (Tex. App.--Houston [14th Dist] 1992, writ denied) (evidence that dealership did not replace parts it had agreed to replace). We overrule issue three.

In his fourth issue, Stoll contends that, even if there were an express warranty, it was for labor only and could not support a judgment awarding damages for materials. As discussed above, the general judgment was supported by evidence of violations of DTPA § 17.46, and the amount of economic damages awarded found support in the evidence. We overrule issue four.

In his fifth issue, Stoll argues that the court "erred in awarding damages based on the evidence." Stoll argues that Braden failed to produce "evidence necessary" to support the amount of damages awarded under either the "benefit of the bargain" or "out of pocket" measure of damages. Braden responds that the DTPA allows recovery for the cost of repair and replacement under these facts. We agree.

The cost of repair is an appropriate measure of damages to a home when the repair is fea