Opinion issued May 24, 2007

 

    

 

 

 

 

 

 

 

 

 

 

 

In The

Court of Appeals

For The

First District of Texas

 

 

NO. 01-06-00458-CV

 

 

DAVID C. HICKMAN, Appellant

 

V.

 

ROYCE DUDENSING, Appellee

 

 

On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 2002V-0088

 

 

MEMORANDUM OPINION

 

          In this construction-defect case, David Hickman appeals an adverse take-nothing judgment on a jury verdict in favor of appellee, Royce Dudensing.  Hickman sued Dudensing for violations of the Deceptive Trade Practices-Consumer Protection Act (“DTPA”)[1] and breach of contract, alleging that he failed to remodel Hickman’s residence in a good and workmanlike manner.  On appeal, Hickman contends (1) the fact that Dudensing did not perform in a good and workmanlike manner is established as a matter of law by the judicial admissions or quasi-admissions of Dudensing and his employees, (2) the evidence is legally and factually insufficient to support the jury’s verdict, and (3) the trial court erred in directing a verdict on his DTPA claims on the basis of limitations.  We affirm.

Background

          Hickman purchased a cluster of adjoining buildings located in New Ulm, Texas, intending to renovate them into a residence, an art studio, and a bed and breakfast.  The buildings were originally constructed in 1890.  Hickman drew up blueprints and specification sheets for the remodeling work and asked Dudensing to bid on the project.  The specification sheets provided in part as follows:

Work to Be Done:

-Caulk holes where needed

-Check windows/caulk – replace where needed

-Roof: repair leaks, remove rust (?) seal with colored paint/sealer

-Paint exterior walls and trim

*Fix exterior wall of back building (west end)

Put deck above tin roof off on second story.  Steps down to yard                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                from deck

-Repair, seal, paint metal roofs

 

Dudensing inspected the property and informed Hickman that he could not guarantee that the roof would stop leaking because “you can’t take an old roof and try to make it where it’s preventable from leaking.”  He suggested installing a new roof, but Hickman refused because he “liked the old style of the metal design roof.”  Dudensing testified that he insisted on installing a new roof, but Hickman “said no because . . . money wasn’t available and he wanted to keep the old style.  He insisted we fix it the best we could, and try to get all the leaks fixed we could.”

The parties subsequently signed a contract for the remodeling work.  Hickman agreed to pay Dudensing $75,419, and Dudensing agreed to perform the renovations in a good and workmanlike manner.  Dudensing completed the project in March 1998. 

A month later, Hickman sent Dudensing a thank-you letter complimenting his work.  Hickman testified that, even though he had noticed some cracks in the exterior walls by the time he wrote the letter, overall he thought Dudensing had done a good job, and “the building looked good” when he moved in.  Over the course of the next several months, however, Hickman testified that the building began to deteriorate.  The roof started leaking, and Hickman eventually had to use fifty-nine buckets to catch water from the leaks.  The exterior paint began to peel in places, and the building developed more cracks.  The exterior steps swayed so badly that Hickman had to repair them himself.  Hickman testified that he and his wife could feel “a breeze coming . . . through the walls and around the trim” of the stained glass windows that Dudensing had installed.

While shopping in a neighboring town in April 1998, Hickman saw Dudensing’s wife and told her that there was a problem with the roof that he needed to discuss with Dudensing.  Dudensing failed to respond.  He did, however, fix the plumbing on a bathtub that had ruptured in April 1998.  After that point, Hickman testified that, with the exception of two occasions when Dudensing sent workers to fix some electrical wiring, plumbing, and the roof, Dudensing failed to respond to the numerous messages he and Mrs. Hickman left regarding repairs from 1999 until 2001.  Mrs. Hickman testified that she called Mrs. Dudensing for the final time regarding repairs in February 2001.  Mrs. Dudensing told Mrs. Hickman to “quit harassing them and leave them alone.”  At that point, the Hickmans realized that Dudensing was not going to perform any additional repairs.  Hickman sued Dudensing for DTPA violations and breach of contract in November 2002, four years after he first noticed the various problems.

At the conclusion of Hickman’s case-in-chief, Dudensing moved for a directed verdict on the basis of limitations.  The trial court denied the motion with respect to Hickman’s breach of contract claim, which has a four-year statute of limitations,[2] but instructed a verdict on the DTPA claims, which have a two-year statute of limitations.[3]

Dudensing then presented his case-in-chief.  He testified that he performed the renovations in a good and workmanlike manner, and that the roof began to leak because “the metal [wa]s over 50, 60 years, maybe older.  And ain’t much you can do with metal like that.  You can try to do your best and, you know, four, five years, they can go to rusting further and leaking.”  He testified that he used the best primer and paint available, but the paint nonetheless began to peel in places because “[s]ome . . . old wood will not hold paint, I don’t care what you do to it. . . .   If the wood is that old and . . . in that kind of condition, you can expect it to peel after a period of time.”  He further testified that some boards began to crack after he painted them because of weather conditions: “If you got any cracks, it comes from the weather . . . .  It does not come from workmanship, it does not come from paint.  It comes from the weather.”  Several of Dudensing’s workers similarly testified that they performed the renovations in a good and workmanlike manner and that problems arose because of the building’s age—not because of poor workmanship.

The jury found that Dudensing did not fail to comply with his obligation under the contract to remodel the property in a good and workmanlike manner.  The trial court subsequently entered a take-nothing judgment against Hickman and this appeal followed.

Quasi-Admissions

          In his first and second issues, Hickman contends the fact that Dudensing failed to remodel the property in a good and workmanlike manner is established as a matter of law by the judicial admissions or quasi-admissions of Dudensing and his employees.  Specifically, Hickman points to Dudensing’s testimony that some of the paint peeled off before a reasonable period of time and that he did not employ a licensed electrician or plumber, even though he represented that he would.  Hickman also notes that Dudensing’s employees testified that the paint was peeling badly, that the roof rusted sooner than it should have, and that stairs should not shake from side to side.

          A “true judicial admission” is “a formal waiver of proof usually found in pleadings or the stipulations of the parties.  A judicial admission is conclusive upon the party making it, and it relieves the opposing party’s burden of proving the admitted fact, and bars the admitting party from disputing it.”  Mendoza v. Fid. & Guar. Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980).  “Quasi-admissions,” on the other hand, are “a party’s testimonial declarations which are contrary to his position . . . .  They are merely some evidence, and they are not conclusive upon the admitter.  The weight to be given such admissions is decided by the trier of fact.”  Id. (internal citations omitted).

          On occasion, however, as a matter of public policy, a party’s testimonial quasi-admission will preclude recovery if it meets certain requirements set forth by the Texas Supreme Court in Mendoza.  Id.  “The public policy underlying this rule is that it would be unjust to permit a party to recover after he has sworn himself out of court by clear, unequivocal testimony.”  Id.  A quasi-admission will be treated as a judicial admission if the following factors are met: (1) the declaration was made during the course of a judicial proceeding; (2) the statement is contrary to an essential fact embraced in the theory of defense asserted by the person giving the testimony; (3) the statement is deliberate, clear, and unequivocal; (4) giving conclusive effect to the declaration will be consistent with the public policy upon which the rule is based; and (5) the statement is not also destructive of the opposing party’s theory of recovery.  Id.

Dudensing’s Testimony

          We first note that, contrary to Hickman’s contention, Dudensing did not make any sort of formal judicial admissions.  He did not stipulate to anything, and Hickman does not point to any formal waiver of proof found in Dudensing’s pleadings.  See id.  Rather, the testimony upon which Hickman relies constitutes, at most, a quasi-admission.  See id.  As such, we must determine whether it satisfies the five-prong Mendoza test for treating a quasi-admission as a judicial admission.  See id.

          Hickman relies upon three statements made by Dudensing.  The first is his testimony that some of the paint peeled off before a reasonable period of time.  When read in context, however, this statement is not clear and unequivocal and thus does not satisfy the Mendoza test.  See id.  Specifically, the entirety of Dudensing’s testimony is as follows:

Q       And in your opinion, has some of that paint peeled off before a reasonable period of time?

 

A       Yes.  Some of it has, but then again, you look at some of the pictures, it looks good.  Paint still is good.  Depends on which part of the building it is on, and it depends on what, which side the weather hit the most.

 

          Similarly, Dudensing’s testimony regarding the use of a licensed electrician and plumber is not clear and unequivocal when read in context.  Though Dudensing admitted that he did not use a licensed electrician or plumber, as he had represented he would, he also testified that the licensed electrician he had intended to use turned down the job: “He wouldn’t mess with it.  He c[a]me by and looked at it [the building] and . . . he turned it down.”  Dudensing testified that Hickman was present when the electrician declined to accept the job.

          The statements on which Hickman relies are merely isolated portions of Dudensing’s trial testimony that are taken out of context.  When read in context, and when considered in light of the entirety of Dudensing’s testimony that he performed the renovations in a good and workmanlike manner, we hold that these statements are not “deliberate, clear, and unequivocal.”  See id. at 693, 695 (in worker’s compensation case, holding that Mendoza’s testimony “that his physical condition was such that he was totally unable to work prior to [a certain date]” was not deliberate, clear, and unequivocal because it did not “exclude the possibility that his opinion was mistaken in that it may have comprehended factors other than his physical condition such as his ability to obtain employment as a manual laborer or the availability of jobs in his community”); Drake v. Spriggs, No. 13-03-429-CV, 2006 WL 3627716, at *3 (Tex. App.—Corpus Christi Dec. 14, 2006, no pet.) (mem. op.) (holding that appellee’s statement during deposition that he had received funds to which he was not entitled was not clear and unequivocal in light of entirety of deposition testimony, since appellee made other statements defending his entitlement to funds).  As such, Dudensing’s testimony does not meet the Mendoza test for treating a quasi-admission as a judicial admission.  See 606 S.W.2d at 694.  Accordingly, the jury was free to determine the weight to give Dudensing’s statements.  See id.

Workers’ Testimony

          Hickman also asserts that certain statements made by Dudensing’s workers regarding peeling paint, rust on the roof, and shaky stairs constitute quasi-admissions that meet the Mendoza test.  He does not cite any authority to support his proposition that the testimonial declarations of a non-party witness may constitute quasi-admissions binding on a party, and we have not found any.  To the contrary, quasi-admissions are “[a] party’s testimonial declarations which are contrary to his position.”  Id. (emphasis added).  Hickman sued Dudensing in his individual capacity, and none of the workers who testified are parties to the case.  We thus reject Hickman’s contention that certain statements made by Dudensing’s workers constitute quasi-admissions.

Even were we to regard these statements as quasi-admissions, they do not meet the Mendoza test for the same reason that Dudensing’s testimony does not meet the Mendoza test—none of the statements are deliberate, clear, and unequivocal.  See id.  When read in context, and when considered in light of the entirety of the workers’ testimony that they performed the renovations in a good and workmanlike manner, they do not rise to the level of quasi-admissions that should be treated as judicial admissions.  See id.; Drake, 2006 WL 3627716, at *3.  As such, the jury was free to determine the weight to give these statements.  See Mendoza, 606 S.W.2d at 694.

Sufficiency of the Evidence

          In his third and fourth issues, Hickman contends that the evidence is legally and factually insufficient to support the jury’s verdict, and that the trial court erred in denying his motion for judgment notwithstanding the verdict or for a new trial.

Standard of Review

In a legal sufficiency challenge by a party with the burden of proof at trial, we examine the entire record to determine if the contrary proposition is established as a matter of law.  See City of Keller v. Wilson, 168 S.W.3d 802, 817, 825-26 (Tex. 2005) (entire record); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989).  Only if the contrary proposition is established as a matter of law will we sustain the issue.  Sterner, 767 S.W.2d at 690.  The test for legal sufficiency is “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.”  City of Keller, 168 S.W.3d at 827.  In making this determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence unless a reasonable fact-finder could not.  Id.  So long as the evidence falls within the zone of reasonable disagreement, we may not substitute our judgment for that of the fact-finder.  Id. at 822.  The trier of fact is the sole judge of the credibility of the witnesses and the weight to give their testimony.  Id. at 819.  Although we consider the evidence in the light most favorable to the challenged findings, indulging every reasonable inference that supports them, we may not disregard evidence that allows only one inference.  Id. at 822.

          When a party attacks the factual sufficiency of an adverse finding on an issue on which he had the burden of proof at trial, he must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.  Ulogo v. Villanueva, 177 S.W.3d 496, 499 (Tex. App.—Houston [1st Dist.] 2005, no pet.).  In reviewing a factual sufficiency point, we consider all the evidence supporting and contradicting the finding.  Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).  We set aside the verdict only if the finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.  Ulogo, 177 S.W.3d at 499.  Jurors are the sole judges of the credibility of the witnesses and the weight to give their testimony.  City of Keller, 168 S.W.3d at 819.  They may choose to believe one witness and disbelieve another.  Id.

Charge Error

          As an initial matter, Hickman complains that the trial court erred in submitting a broad-form question to the jury regarding whether Dudensing remodeled the property in a good and workmanlike manner.  He observes that, “[a]lthough a practice of a global submission does streamline and simplify the issues submitted to the jury, in some instances, such as this one, it leaves the parties in a position of wondering why certain obvious evidence was apparently disregarded by the jury.”  He notes that some components of the project were “good” and others were “bad,” but the global submission “did not allow the jury flexibility to answer partially yes and partially no.  To allow the verdict to stand effectively allows the jury to ignore the portions of the job that were not completed in a good and workmanlike manner because they, apparently, had been convinced that some portions of the job were completed correctly.”

          If a party believes that the trial court’s charge to the jury is defective, he must make a timely and specific objection pointing out the matter complained of and the grounds for the objection.  See Tex. R. Civ. P. 274 (“A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection.  Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.”); City of Houston v. Kolb, 982 S.W.2d 949, 956 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).  If the objection does not fully comply with the requisites of Rule 274, the party waives the complaint.  Kolb, 982 S.W.2d at 956 (citing Castleberry v. Branscum, 721 S.W.2d 270, 276 (Tex. 1986)).

          Here, Hickman’s only objection to the charge was that it failed to include a DTPA question.  Hickman did not object to the charge on the ground that it was an improper broad-form submission.  Accordingly, we hold that Hickman has waived any error concerning the broad-form submission of the breach of contract question.  See id.

Legal and Factual Sufficiency

          Hickman contends there is insufficient evidence to support the jury’s finding that Dudensing remodeled the property in a good and workmanlike manner.  To support his argument, Hickman relies on the same testimony discussed previously—namely, Dudensing’s observation that the paint was peeling in places, and Dudensing’s workers’ testimony regarding shortcomings with the work.

          The jury charge defines “good and workmanlike manner” as “that quality of work performed by one who has knowledge, training or experience necessary for the successful practice of a trade or occupation and performed in a manner generally considered proficient by those capable of judging such work.”  Though the jury heard testimony from Dudensing and his workers that the paint was peeling badly in places and that portions of the roof rusted sooner than they should have, it also heard qualifying testimony from these witnesses that “some [old] lumber will not hold paint” and “you can’t guarantee an old roof.”  In particular, Dudensing testified that he repeatedly advised Hickman that he should install a new roof because the old roof would become rusty and begin leaking within a few years, but Hickman insisted on keeping the old design because he liked it and could not afford to pay for a new roof.[4]

With respect to the peeling paint, Dudensing testified that he used “the best” primer and paint available, and he “prepared[d] the surface according to the specs of the plan, [but] some of these old materials will not hold paint.  Some lumber will not hold paint.  Some metal will never hold paint. . . .  I don’t care what you do to it. . . .  If the wood is that old and . . . in that kind of condition, you can expect it to peel after a period of time.”  He further testified that the cracks in the boards “c[a]me[] from the weather . . . .  [They] do[] not come from workmanship, [they] do not come from paint.  [They] come[] from the weather.”  He also testified that the exterior stairs were safe because he and his workers used them repeatedly to carry decking materials to the top story.

Dudensing’s workers similarly testified that the roof ought to have been replaced,[5] that paint often will not stick to old wood, and that even when a window is installed properly, there will still be “[s]ome air coming through it” because “the wood will swell up . . . and shrink.”  Moreover, when asked whether they remodeled the property in a good and workmanlike manner, Dudensing and his workers unequivocally testified that they did.[6]

          Although the jury heard contradictory testimony from the Hickmans, the jury, as fact-finder, was free to disbelieve the Hickmans’ testimony and instead believe Dudensing’s testimony that he remodeled the property in a good and workmanlike manner, and that the ensuing problems were not due to poor workmanship, but instead to the age and condition of the building.  See Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804, 823 (Tex. App.—Dallas 2003, pet. denied) (holding that jury is exclusive judge of witness credibility and weight to give conflicting testimony in deciding whether contractor performed in good and workmanlike manner).[7]

          Viewing the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support the jury’s finding that Dudensing did not fail to comply with his obligation to remodel the property in a good and workmanlike manner.  See Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 673–74 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (holding that evidence was legally sufficient to support jury’s verdict that contractor performed in good and workmanlike manner where he maintained adequate staff on each project, provided adequately experienced personnel, adequately supervised his crews, and his crews performed their assigned tasks as well as they could).  Moreover, considering all the evidence supporting and contradicting the finding, we cannot say the jury’s finding is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.  See Ulogo, 177 S.W.3d at 499.  We therefore hold that the evidence is factually sufficient to support the jury’s finding that Dudensing did not fail to comply with his obligation to remodel the property in a good and workmanlike manner.  Given the sufficiency of the evidence to support the jury’s verdict, we conclude that the trial court did not err in denying Hickman’s motion for judgment notwithstanding the verdict or for a new trial.

DTPA Directed Verdict

          In his final issue, Hickman contends the trial court erred in directing a verdict on his DTPA claims on the basis of limitations.  He asserts that “[t]he Courts have recognized that a continuing misrepresentation is arguably a basis for negating an otherwise valid statute of limitations defense.”  He points out that Dudensing continued to send workers to his residence to fix various defects, and it was not until February 2001 that it became clear Dudensing was not going to correct any additional problems.  Hickman notes that he filed suit in November 2002, less than two years after Dudensing’s misrepresentations ceased.

          The statute of limitations for Hickman’s DTPA claims is provided by section 17.565 of the Texas Business and Commerce Code, which incorporates a discovery rule.  See Tex. Bus. & Com. Code Ann. § 17.565 (Vernon 2002); J.M. Krupar Constr. Co. v. Rosenberg, 95 S.W.3d 322, 329 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  DTPA claims must be brought

within two years after the date on which the false, misleading, or deceptive act or practice occurred or within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice.  The period of limitation . . . may be extended for a period of 180 days if the plaintiff proves that failure timely to commence the action was caused by the defendant’s knowingly engaging in conduct solely calculated to induce the plaintiff to refrain from or postpone the commencement of the action.

 

Tex. Bus. & Com. Code Ann. § 17.565.

          The general rule in construction-defect cases is that “limitations begin to run when an owner becomes aware of property damage.”  J.M. Krupar, 95 S.W.3d at 329–30 (citing Ben Fitzgerald Realty Co. v. Muller, 846 S.W.2d 110, 118–19 (Tex. App.—Tyler 1993, writ denied) (limitations began when damages began to show on the house); Hanmore Dev. Corp. v. JBK Enters., 776 S.W.2d 738, 740 (Tex. App.—Corpus Christi 1989, writ denied) (limitations began when owner first discovered roof leak); Tenowich v. Sterling Plumbing Co., 712 S.W.2d 188, 189–90 (Tex. App.—Houston [14th Dist.] 1986, no writ) (limitations began when owner discovered leaks in pipe)).  “Moreover, well-settled Texas precedent . . . holds that repairs performed by a defendant do not toll the discovery rule for plaintiffs and, thus, do not extend limitations.”  Hixon v. Tyco Int’l, Ltd., No. 01-04-01109-CV, 2006 WL 3095326, at *8 (Tex. App.—Houston [1st Dist.] Oct. 31, 2006, no pet.) (mem. op.) (citations omitted); see also Dean v. Frank W. Neal & Assocs., Inc., 166 S.W.3d 352, 360 (Tex. App.—Fort Worth 2005, no pet.) (“An unsuccessful effort to make repairs does not toll the statute of limitations for purposes of determining when a cause of action accrued.”).  Here, Hickman was aware of property damage by April 1998, when he informed Dudensing’s wife that he needed to speak with Dudensing regarding roof problems.  Hickman did not file suit until November 2002—well beyond the two-year statute of limitations.

          Hickman nonetheless contends that his suit is timely and relies on W.M. Riddick v. Quail Harbor Condominium Association, Inc. for the proposition that “Courts have recognized that a continuing misrepresentation is arguably a basis for negating an otherwise valid statute of limitations defense.”  7 S.W.3d 663 (Tex. App.—Houston [14th Dist.] 1999, no pet.).  In Riddick, our sister court held that Riddick’s cause of action under the DTPA accrued when Riddick “first discovered the cracks in the walls.”  Id. at 671.  Though Riddick argued in his brief that Quail Harbor had made “continuing misrepresentions” to him in the form of promises to fix the foundation problem, and that limitations should therefore be tolled, our sister court rejected Riddick’s argument, holding that he waived it by failing to present it to the trial court.  Id. at 671, 678.  In determining whether Riddick’s contention was groundless for the purpose of awarding Quail Harbor its attorney’s fees under the DTPA,[8] however, our sister court noted that the claim, although not proven, was “arguable.”  Id. at 677–78.  The court therefore reversed the trial court’s award of attorney’s fees to Quail Harbor.  Id. at 679.

          Determining whether a claim is groundless for the purpose of imposing sanctions is different from determining whether a party should prevail on that claim.  The limitations statute, section 17.565, does not impose any sort of statutory tolling for continuing misrepresentations or for a failure to complete repairs.  See Tex. Bus. & Com. Code Ann. § 17.565.  Though the statute includes a 180-day tolling provision if the plaintiff is able to prove that the defendant knowingly engaged in conduct calculated solely to induce the plaintiff to delay filing suit, Hickman does not rely on this section of the statute.  See id.  Nor does he raise the issue of fraudulent concealment.[9]  Rather, his brief deals solely with whether Dudensing’s continuing representations that he would perform repairs are “a basis for negating an otherwise valid statute of limitations defense.”

          The Texas Supreme Court has not recognized, in the absence of fraud or fraudulent concealment, equitable tolling for either the failure to complete repairs or for continuing misrepresentations regarding repairs, and we decline to do so.  See Hixon, 2006 WL 3095326, at *8 (“The Hixons cite no authority that authorizes delay of discovery of a liability cause of action against a defendant until refusal to continue repair occurs, and we know of none.  [Thus, t]he Hixons are . . . mistaken in contending that they had no cause of action against [appellees] until these entities ‘refused outright’ to continue repairs . . . .”); see also Pako Corp. v. Thomas, 855 S.W.2d 215, 219 (Tex. App.—Tyler 1993, no writ) (“Neither the attempts to repair, nor [appellee]’s representatives’ assurances of the success of the efforts, toll the running of the statute of limitations.”).  We therefore hold that the trial court did not err in granting a directed verdict on Hickman’s DTPA claims on the basis of limitations.

Conclusion

 

          We affirm the judgment of the trial court.

 

                                                          Jane Bland

                                                          Justice

 

Panel consists of Chief Justice Radack and Justices Jennings and Bland.