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Brown Foundation Repair v. Henderson
Citations: 719 S.W.2d 229; 1986 Tex. App. LEXIS 9070Docket: 05-85-01347-CV
Court: Court of Appeals of Texas; August 26, 1986; Texas; State Appellate Court
Brown Foundation Repair and Consulting, Inc. appealed a judgment in favor of Robert Henderson, contesting five points of error. The Court of Appeals of Texas determined the trial court incorrectly submitted a special issue regarding Brown's failure to disclose the impracticality of repairing Henderson's chimney but overruled Brown's no-evidence points. The court reversed the trial court's judgment and remanded the case for a new trial. Henderson contracted Brown to repair a chimney that had separated from the house. Brown's repair efforts, which included digging pier holes, placing concrete footings, and using jacks, failed to successfully reposition the chimney against the house. After making an initial payment, Henderson refused further payment, leading Brown to file a lawsuit for the owed amount. Henderson countered with claims under the Deceptive Trade Practices-Consumer Protection Act, alleging that Brown did not disclose the impracticality of the repairs. The jury found Brown failed to inform Henderson about the impracticality of the repair. The appellate court noted that the trial court erred by not asking the jury whether Brown was aware of the impracticality at the time of the transaction, as liability under the Act requires such knowledge. Testimony from a Brown supervisor indicated he was unaware that the chimney would only rise vertically, supporting the conclusion that Brown's knowledge was not established. Consequently, the court deemed the issue's submission improper, leading to the reversal of the judgment. Brown's additional arguments concerning the sufficiency of pleadings were not addressed due to the resolution of the first point, but the court considered the remaining no-evidence points. In evaluating a no-evidence point, only supportive evidence and inferences are considered, while contrary evidence is disregarded. Brown contends that there was insufficient evidence regarding its foreknowledge of the impracticality of repairs. However, expert testimony indicated that the repair failed due to the chimney being on a separate foundation, which required different forces for stability. Brown's supervisor, Walker, was aware of this separate foundation during the transaction. Given Brown's expertise in foundation repair and this knowledge, the jury could reasonably infer that Brown was aware the repairs were unfeasible and may have intentionally withheld this information. Additionally, Brown claims Henderson failed to prove damages. Henderson could establish damages either by demonstrating the difference in market value or the reasonable cost to fix defects. Another measure allows for proving the amount paid for repairs versus their lack of value. Testimonies indicated that the aim was to close a gap between the chimney and the house, which only decreased from three inches to two-and-a-half inches, suggesting minimal value in the correction. Thus, the jury could justifiably find damages equivalent to the amount paid for the repairs. Brown's points of error four and five are overruled.