Cleveland Franklin v. Robert C. Banks

Opinion issued June 28, 2007 Opinion issued June 28, 2007 In The Court of Appeals For The First District of Texas NO. 01-06-00818-CV CLEVELAND FRANKLIN, Appellant V. ROBERT C. BANKS, Appellee On Appeal from County Civil Court at Law No. 4 Harris County, Texas Trial Court Cause No. 811257 MEMORANDUM OPINION In his appeal from a bench trial, Cleveland Franklin contests the trial court’s take-nothing judgment in favor of Robert C. Banks. Franklin challenges the legal sufficiency of the evidence and contends that the trial court (1) erred in rendering judgment in favor of Banks, and (2) in not awarding Franklin damages. We affirm. Background Franklin purchased a commercial building in 1992, and in 1999, hired Dorsey Spencer to replace the roof. Franklin purchased the roofing materials that Spencer was to use and stored them in his building. Spencer asked Franklin about the quality of the new roof before he began working. Franklin responded that he wanted “something to stop it from leaking.” Spencer inspected the interior of Franklin’s building and found a large amount of water damage. During the installation, Spencer exhausted the materials Franklin provided. Thus, Spencer used only one ply of fiberglass felt on some portions of the roof, a less than standard amount. Spencer also noted that water leaking into Franklin’s building had damaged the roofing materials before he applied them to the roof. Spencer testified at trial that a roof will blister if the fiberglass felt sustains water damage before it is applied. Franklin stopped paying Spencer after Spencer had installed about half of the roof. Spencer warned Franklin that the roof was temporary and would not last any longer than one or two days. Franklin told Spencer that he would not pay him any more money and asked him to leave the property. During the conversation, Franklin kept a gun on the seat next to him. The following January, Franklin hired Banks to complete the roof using materials similar to those that Spencer had used. Banks testified that according to the contract, he was not responsible for repairing the portion of the roof that Spencer installed. Before he began working, Banks noticed significant water damage inside of Franklin’s building. Banks testified that he installed the portion of the roof required by the contract in a good and workmanlike manner, and Franklin paid him $3,250 for his services. Earl Hose was one of Banks’s employees who worked on Franklin’s roof. Hose testified that Banks used two plies of fiberglass felt on the portion of the roof he installed. After Banks completed the installation, Franklin complained about several blisters that had formed on the roof. Banks repaired the blisters each time Franklin requested. Franklin sued Banks for breach of contract, breach of warranty, and negligence. At trial, Franklin testified that he hired Banks to install a completely new roof on his building, and that Banks orally guaranteed that the portion of the roof that Spencer installed would not leak and did not need to be replaced. Franklin also testified that his building did not begin leaking until after Banks performed his work. Franklin called an expert witness at trial named Michael Scanlon. Scanlon testified that portions of Franklin’s roof were not installed in a good and workmanlike manner. Scanlon exposed an area of the roof and discovered that the roofer had used only one ply of fiberglass felt. Scanlon also found numerous areas where the roof was not adequately attached to the substrate. Scanlon, however, could not identify the roofer who installed the defective portions of the roof. Scanlon also found water damage inside of Franklin’s building. The contract between Banks and Franklin provides: We hereby propose to furnish the materials and perform the labor necessary for the completion of for [sic] Finishing up Roof. Spud [sic] of All Gravels. Replace Rotten Decking. Replace Gravel Gard [sic] Where needed. Mop 2 ply Fiberglass Felt. Mop 1 ply systum [sic] on Wall And service Mop Roof. Three year Guarantee on Application of Roof. All material is guaranteed to be as specified, and the above work to be performed in accordance with the drawings and specifications submitted for above work and completed in a substantial workmanlike manner for the sum of [$3,250.00] with payment to be made as follows[:] on completion. After a bench trial, the trial court rendered judgment in favor of Banks and ordered that Franklin take nothing. The trial court also made the following findings of fact and conclusions of law: I. Findings of Fact 1. A written contract existed between Plaintiff and Defendant. 2. Defendant agreed to make repairs to a roof at 7034 Bellfort, Houston, Texas. 3. Defendant fully performed his duties under the agreement. 4. Damages to the building pre-existed the work performed by Defendant on the roof at 7034 Bellfort. II. Conclusions of Law 1. Defendant did not breach any agreement with Plaintiff. 2. Plaintiff is not entitled to any recovery from Defendant in this matter. 3. Plaintiff shall take nothing by way of this suit. 4. All costs are taxed against the party incurring the same. Legal Sufficiency A. Standard of Review In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a jury’s verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.] 1996, writ denied). When challenged, findings of fact are not conclusive if, as here, there is a complete reporter’s record. Id. When there is a reporter’s record, the trial court’s findings of fact are binding only if supported by the evidence. Id. If the findings are challenged, we review the sufficiency of the evidence supporting the findings by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). We review de novo a trial court’s conclusions of law, and uphold them on appeal if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); In re Moers, 104 S.W.3d 609, 611 (Tex. App.—Houston [1st Dist.] 2003, no pet.). In a legal sufficiency challenge by a party with the burden of proof at trial, we examine the entire record to determine if the appellant established his claim as a matter of law. See City of Keller v. Wilson, 168 S.W.3d 802, 817, 826 (Tex. 2005) (entire record); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). Only if the claim 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. B. Breach of Contract Franklin contends that he established his breach of contract claim as a matter of law. The essential elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; (4) damages sustained as a result of the breach. Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Our primary concern when interpreting a contract is to ascertain and give effect to the intent of the parties as it is expressed in the contract. Seagull Energy E & P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 345 (Tex. 2006). “To achieve this objective, courts should examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless.” Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 662 (Tex. 2005). Whether a contract is ambiguous is a question of law for the court. Heritage Res., Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex. 1996). “A contract is ambiguous when its meaning is uncertain and doubtful or is reasonably susceptible to more than one interpretation.” Id. We determine whether the contract is ambiguous by looking at the contract as a whole in light of the circumstances present when the parties entered the contract. Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex. 2003). If the contract is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law. SAS Inst., Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005); ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). An unambiguous contract is construed according to the plain meaning of its express wording. Lyons v. Montgomery, 701 S.W.2d 641, 643 (Tex. 1985). Unambiguous contracts are enforced as written. Heritage Res., Inc., 939 S.W.2d at 121. Franklin contends the contract required Banks to install a completely new roof on his building. We disagree. The contract expressly states that Banks was only required to “Finish[] up Roof.” The plain meaning of the term “finish” is “to come to the end of a course, task, or undertaking.” Merriam-Webster’s Collegiate Dictionary 470 (11th ed. 2003). We therefore conclude that the phrase “Finishing up Roof” required Banks to install the unfinished portion of the roof, not replace the entire roof. See Kennedy Ship & Repair, L.P. v. Pham, 210 S.W.3d 11, 22 (Tex. App.—Houston [14th Dist.] 2006, no pet.). Considering the contract as a whole, the contract is not ambiguous, as it is worded so that it can be given a certain or definite legal meaning. See Breitenfeld, 167 S.W.3d at 841; Universal Health Servs., Inc., 121 S.W.3d at 746; McLaughlin, 943 S.W.2d at 430. When the contract is construed as only requiring Banks to install the unfinished portion of the roof, Franklin failed to produce any evidence that Banks breached the contract. Banks testified that he installed the required portion of the roof in a good and workmanlike manner in accordance with the terms of the contract. Hose testified that Banks used two plies of fiberglass felt on the portion of the roof he installed. After Banks completed the installation, Franklin complained about several blisters that had formed on the roof. Banks repaired the blisters each time Franklin requested. Scanlon testified that portions of the roof were not installed in a good and workmanlike manner, there were numerous areas where the roof was not adequately attached to the substrate, and the area of the roof Scanlon exposed contained only one ply of fiberglass felt. Scanlon, however, could not identify the roofer who installed the defective portions of the roof. Spencer specifically testified that he installed half of Franklin’s roof and used only one ply of fiberglass felt on some portions of the roof because he exhausted the materials provided by Franklin. Franklin produced no evidence that Banks breached the contract. See Baylor Univ. v. Coley, No. 04-0916, 2007 WL 1162489, at *4–6 (Tex. Apr. 20, 2007) (holding that plaintiff produced no evidence that defendant breached contract); Matagorda County Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex. 2006) (holding that plaintiff produced no evidence that defendant breached employment contract); Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d 666, 672–73 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (holding that party failed to establish its breach of contract claim as matter of law). We therefore hold that Franklin failed to establish his breach of contract claim as a matter of law and was not entitled to recover damages. See City of Keller, 168 S.W.3d at 817, 826–27; Sterner, 767 S.W.2d at 690. C. Breach of Warranty Franklin contends that he established his claims for breach of express and implied warranties as a matter of law. The contract provides the following express warranty: “Three year Guarantee on Application of Roof.” The elements of a cause of action for breach of an express warranty for services include: (1) defendant sold services to plaintiff; (2) defendant made a representation; (3) representation became part of the basis of the bargain; and (4) defendant breached the warranty. Sw. Bell Tel. Co. v. FDP Corp., 811 S.W.2d 572, 576–77 & n.3 (Tex. 1991). Texas also recognizes an implied warranty to repair or modify existing tangible goods or property in a good and workmanlike manner. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987). “[G]ood and workmanlike” is defined as “that quality of work performed by one who has the 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.” Id. The implied warranty does not require repairmen to guarantee the results of their work; it only requires those who repair or modify existing tangible goods or property to perform those services in a good and workmanlike manner. Id. at 355. A “consumer” may maintain a cause of action under the Deceptive Trade Practices Act (DTPA) for breach of an express or implied warranty. Tex. Bus. & Com. Code Ann. § 17.50(a)(2) (Vernon Supp. 2006); Parkway Co. v. Woodruff, 901 S.W.2d 434, 438 (Tex. 1995). For a person to be qualified as a consumer, he must meet two requirements. First, he must have sought or acquired goods or services by purchase or lease. Tex. Bus. & Com. Code Ann. § 17.45(4) (Vernon 2002). Second, the goods or services purchased or leased must form the basis of the complaint. Melody Home Mfg. Co., 741 S.W.2d at 351–52. To recover for breach of warranty under the DTPA, the plaintiff must show (1) consumer status, (2) existence of the warranty, (3) breach of warranty, and (4) the breach was a producing cause of damages. Tex. Bus. & Com. Code Ann. § 17.50(a)(2); Four Bros. Boat Works, Inc. v. Tesoro Petroleum Cos., 217 S.W.3d 653, 666 (Tex. App.—Houston [14th Dist.] 2006, pet. filed); Elliott v. Kraft Foods N. Am., Inc., 118 S.W.3d 50, 56 (Tex. App.—Houston [14th Dist.] 2003, no pet.). At trial, Banks testified that he installed the required portion of the roof in a good and workmanlike manner. Hose testified that Banks used two plies of fiberglass felt on the portion of the roof he installed. After Banks completed the installation, Franklin complained about several blisters that had formed on the roof. Banks repaired the blisters each time Franklin requested. Scanlon testified that portions of the roof were not installed in a good and workmanlike manner, there were numerous areas where the roof was not adequately attached to the substrate, and the area of the roof Scanlon exposed contained only one ply of fiberglass felt. Scanlon, however, could not identify the roofer who installed the defective portions of the roof. Franklin therefore produced no evidence that Banks failed to install the roof in a good and workmanlike manner, or that Banks failed to repair the roof during the three years covered by the express warranty. Franklin failed to produce any evidence that Banks breached an express or implied warranty relating to the installation or repair of the roof. See, e.g., Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 282–83 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (holding that plaintiff established breach of warranty claim as matter of law). We therefore hold that Franklin failed to establish his claims for breach of express and implied warranties as a matter of law and was not entitled to recover damages. See City of Keller, 168 S.W.3d at 817, 826–27; Sterner, 767 S.W.2d at 690. D. Negligence Franklin contends that he established that Banks negligently installed the roof as a matter of law. Negligence claims consists of four elements: (1) a legal duty; (2) a breach of that duty; (3) that the breach proximately caused the plaintiff’s damages; and (4) that the plaintiff sustained damages. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Rangel v. Lapin, 177 S.W.3d 17, 22 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). “Professional men in general and those who undertake any work calling for special skill are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability.” Mobil Pipe Line Co. v. Goodwin, 492 S.W.2d 608, 613 (Tex. Civ. App.—Houston [1st Dist.] 1972, writ ref’d n.r.e.); see also Jackson v. Axelrad, 221 S.W.3d 650, 656 (Tex. 2007) (“Experienced milk haulers, hockey coaches, expert skiers, construction inspectors, and doctors must all use care which is reasonable in light of their superior learning and experience, and any special skills, knowledge or training they may personally have over and above what is normally possessed by persons in the field.”). Professionals must use the skill and care in the performance of their duties commensurate with the requirements of their profession, and are only liable for a failure to exercise reasonable care and skill commensurate with those requirements. I. O. I Sys., Inc. v. City of Cleveland, 615 S.W.2d 786, 790 (Tex. Civ. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.); see also Jackson, 221 S.W.3d at 656. A contract for professional services gives rise to a duty by the professional to exercise the degree of care, skill, and competence that reasonably competent members of the profession would exercise under similar circumstances. Sw. Bell Tel. Co. v. DeLanney, 809 S.W.2d 493, 494 n.1 (Tex. 1991); Averitt v. PriceWaterhouseCoopers L.L.P., 89 S.W.3d 330, 334 (Tex. App.—Fort Worth 2002, no pet.). At trial, Banks testified that he installed the required portion of the roof in a good and workmanlike manner. Hose testified that Banks used two plies of fiberglass felt on the portion of the roof he installed. Franklin testified that the roof did not start leaking until after Banks performed his installation, but produced no evidence that the portion of the roof that Banks installed was the portion that was leaking. Scanlon testified that portions of the roof were not installed in a good and workmanlike manner, there were numerous areas where the roof was not adequately attached to the substrate, and the area of the roof Scanlon exposed contained only one ply of fiberglass felt. Scanlon, however, could not identify the roofer who installed the defective portions of the roof. Spencer specifically testified that he installed half of Franklin’s roof and used only one ply of fiberglass felt on some portions of the roof because he exhausted the materials provided by Franklin. Spencer also warned Franklin that his repairs were temporary and would not last any longer than one or two days. Franklin produced no evidence that Banks breached his duty to use reasonable care and skill commensurate with the requirements of his profession in installing the required portion of the roof. See Bartosh v. Gulf Health Care Ctr., 178 S.W.3d 434, 447–48 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that plaintiff produced no evidence that defendant negligently performed fire ant treatment services); Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738–43 (Tex. App.—Amarillo 1999, pet. denied) (holding that plaintiff produced no evidence that defendant negligently performed duties as airplane mechanic); S. Roofing & Sheet Metal Co. v. Paramount Constr. Co., 512 S.W.2d 781, 784 (Tex. Civ. App.—Houston [14th Dist.] 1974, writ ref’d n.r.e.) (holding that evidence that roof leaked was insufficient to show that roof was poorly constructed). We therefore hold that Franklin failed to establish his negligence claim as a matter of law and was not entitled to recover damages. See City of Keller, 168 S.W.3d at 817, 826–27; Sterner, 767 S.W.2d at 690. Conclusion We hold that Franklin has failed to establish his breach of contract, breach of warranty, and negligence claims as a matter of law, and was therefore not entitled to recover damages. We affirm the judgment of the trial court. Jane Bland Justice Panel consists of Justices Nuchia, Hanks, and Bland.