Gary Hammer, D/B/A Hammer Remodeling v. Raymond Harold Wood and Stephanie Ann Wood D/B/A Flooring World ( 2009 )

Affirmed and Memorandum Opinion filed August 25, 2009

Affirmed and Memorandum Opinion filed August 25, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-01081-CV

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GARY HAMMER, D/B/A HAMMER REMODELING, Appellant

V.

RAYMOND HAROLD WOOD AND STEPHANIE ANN WOOD D/B/A FLOORING WORLD, Appellees

On Appeal from the County Civil Court at Law No. 3

Harris County, Texas

Trial Court Cause No. 860410

M E M O R A N D U M  O P I N I O N

Appellant, Gary Hammer, d/b/a Hammer Remodeling (AHammer@), appeals a take-nothing judgment following a bench trial in his suit against appellees, Raymond Harold Wood and Stephanie Ann Wood d/b/a Flooring World (collectively Athe Woods@), for breach of implied warranty.^[1] In a single issue, Hammer contends the trial court erred by concluding that Texas law does not recognize a common-law cause of action for breach of implied warranty for repairs to existing tangible property.  We conclude that, even if the trial court=s conclusion was incorrect, it properly entered a take-nothing judgment because Hammer presented no evidence of damages. Accordingly, because all dispositive issues are settled in law, we issue this memorandum opinion and affirm.  See Tex. R. App. P. 47.4.

I.  Background

Hammer was the general contractor for a remodeling project on a residence.  Hammer subcontracted with the Woods= company, Flooring World, to provide wood flooring material and installation services.  After installation, Hammer paid the Woods the full agreed price. Hammer was also paid in full by the homeowners.  Subsequently, the homeowners complained about buckling of the floor.  Hammer and his expert attributed the buckling to defective workmanship whereas the Woods and their expert opined the problems resulted from excessive moisture content in the home.   The homeowners eventually replaced the floor at their own cost, using a different contractor.

Hammer sued the Woods for common-law breach of implied warranty.  The court conducted a bench trial.  After Hammer rested, the Woods orally moved for a directed verdict on four grounds: (1) Hammer was not entitled to recover attorney=s fees; (2) he presented no evidence of damages; (3) he sued the wrong parties; and (4) a breach of implied warranty for repairs to existing property is actionable only under the Texas Deceptive Trade Practices Act (ADTPA@), which claim Hammer did not plead.^[2] The trial court orally announced it denied the motion but also stated it would Ahold out on the DTPA issue@ and AI=m going to grant you a verdict as a matter of law on that, but not at this time.@

After the Woods presented evidence, they re-urged their motion for directed verdict on all four grounds previously stated.  The trial court orally announced it denied the motion and would allow closing argument instead.  During the Woods= closing argument, they once again urged the trial court to reconsider the motion for directed verdict on the various grounds.  After both parties presented closing argument, the trial court expressed doubt Hammer had presented any evidence of damages and invited him to submit legal authority on that issue.  Our appellate record does not contain any brief or other document filed with the trial court regarding that issue before it rendered judgment.  The Woods did file a trial brief to support several of their arguments.

On November 2, 2007, the trial court signed a final judgment ordering that Hammer take nothing and pay all court costs incurred by the Woods.  The trial court subsequently signed a document entitled AFINDINGS OF FACT AND CONCLUSIONS OF LAW@ but it contained no findings of fact and two conclusions of law:

1.         Plaintiff sued the correct parties.^[3]

2.         Plaintiff=s pleading fail [sic] to state a viable cause of action regarding breach of implied warranty.  Such a claim may only be made under the Texas Deceptive Trade Practices Act.

Therefore, although the trial court previously announced that it denied the Woods= motion for directed verdict on the ground Hammer had no viable common-law cause of action for breach of implied warranty as a matter of law, the pertinent conclusion of law demonstrates the trial court rendered a take-nothing judgment on this ground.  Hammer filed a motion for new trial and supporting brief, but the trial court denied the motion.

II.  Analysis

Hammer presents a single issue for our review, contending the trial court incorrectly concluded that a claim for breach of implied warranty for repairs to existing tangible property may only be brought under the DTPA and not under common law. The Woods respond that the trial court=s conclusion was correct, but alternatively, we may uphold the judgment because Hammer failed to present any evidence of damages.  We agree with the Woods= alternative contention.

If we determine a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal.  BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Perna v. Hogan, 162 S.W.3d 648, 656 (Tex. App.CHouston [14th Dist.] 2005, no pet.); Goebel v. Brandley, 76 S.W.3d 652, 657 (Tex. App.CHouston [14th Dist.] 2002, no pet.), disapproved on other grounds by Martin v. Amerman, 133 S.W.3d 262 (Tex. 2004).  Even if Hammer could assert a common-law cause of action for breach of implied warranty, he did not present evidence of damages resulting from any breach.  See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 668 (Tex. 1999) (generally stating plaintiff may recover actual damages for breach of implied warranty); Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 886 (Tex. App.CDallas 2007, no pet.) (recognizing that proving  plaintiff suffered an injury is element of claim for breach of express warranty for services).^[4]

Hammer testified he was paid in full by the homeowners for installation of the floor at issue.  Further, Hammer admitted, and the homeowners confirmed, that theyCnot HammerCpaid to have the floor replaced. According to Hammer=s testimony, the only costs he incurred because of the problems with the floor were fees to an expert witness for his inspection and appearance at trial.  Hammer did not argue at trial or on appeal that these fees were  recoverable as damages.  See AVCO Corp. v. Interstate Southwest, Ltd., 251 S.W.3d 632, 662 (Tex. App.CHouston [14th Dist.] 2007, pet. denied) (holding party could not recover expert witness fees which were litigation expenses as opposed to actual damages caused by other party=s fraudulent conduct).

Hammer did present a letter from the homeowners demanding that he reimburse their replacement costs of $9,141.18.  At trial and on appeal, Hammer primarily relied on this demand letter as evidence of his damages.  However, Hammer did not present any testimony that he intended to pay all or part of this amount. Without any indication Hammer intended to meet the homeowners= demand, a finding he might pay this amount in the future would have been based on pure speculation.  See id. at 656 (stating damages cannot be based on mere speculation and hypothesis).  For instance, the trial court could not have foreclosed the possibility Hammer might challenge the homeowners= demand in whole or in part.  In fact, there was no evidence Hammer had yet paid the homeowners any expenses resulting from the inadequate floor during the approximately two-year period between discovery of the problems and trial.^[5] In short, allowing Hammer to recover $9,141.18 from the Woods in this suit could potentially compensate him for damages he might not ever incur. Therefore, this mere demand letter was not evidence of any damages sustained by Hammer. 

Hammer also states on appeal, and suggested to the trial court, that his business reputation has been damaged due to unsatisfied customers.  However, he cites, and presented at trial, no evidence to support this contention.

Additionally, in a brief supporting his motion for new trial, Hammer noted that, since trial, he had paid the Smiths demand of $9,141.18.  On appeal, he suggests he would prove these Aadditional facts@ if the case were remanded.  However, Hammer attached no affidavit or other evidence to the motion for new trial or supporting brief demonstrating he had paid the homeowners= demand.  Nevertheless, even if he had attached such evidence to his motion or supporting brief, he did not present the evidence before judgment was rendered.  Moreover, he did not request the trial court to reopen the evidence, or grant a new trial based on newly discovered evidence, if it determined he could assert a cause of action for breach of implied warranty.  See Tex. R. Civ. P. 270 (providing, in pertinent part, AWhen it clearly appears to be necessary to the due administration of justice, the court may permit additional evidence to be offered at any time . . . @); Chapman v. Abbot, 251 S.W.3d 612, 620 (Tex. App.CHouston [1st Dist.] 2007, no pet.) (setting forth requirements for obtaining new trial based on newly discovered evidence).

Finally, on appeal, Hammer cites authority to support a contention that his suit was ripe because the demand letter indicated economic damages were imminent.  See Patterson v. Planned Parenthood of Houston and Southeast Tex., Inc., 971 S.W.2d 439, 442 (Tex. 1998) (stating ripeness concerns whether, at the time lawsuit is filed, facts have developed sufficiently so that injury has occurred or is likely to occur, rather than being contingent or remote).  However, we are not addressing whether the suit was ripe when filed but whether Hammer presented evidence of damages once he proceeded to trial.

In sum, at the time of trial, the homeowners had incurred damages because of the inadequate floor, but they were not parties to this suit.  Hammer had been fully paid by the homeowners, had not paid any costs to replace the floor, and did not prove he would pay such costs in the future.  Therefore, even if the trial court incorrectly determined that Hammer could not assert his breach-of-implied-warranty cause of action, the court correctly rendered a take-nothing judgment in favor of the Woods. 

Accordingly, we affirm the trial court=s judgment.

/s/        Charles W. Seymore

Justice

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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^[1] The parties disputed at trial whether the Woods were doing business as AFlooring World@ or whether Flooring World was incorporated. The Woods claimed Hammer sued the wrong party by naming them individually because Flooring World was incorporated.  Because resolution of this issue is not material to our disposition, we refer to the company as AFlooring World.@

^[2]  Rather than a motion for directed verdict, the proper motion for a defendant to make after the plaintiff has rested in a bench trial is a motion for judgment.  Joplin v. Borusheski, 244 S.W.3d 607, 610 (Tex. App.CDallas 2008, no pet.).  Nevertheless, we construe the Woods= request as a motion for judgment because they clearly moved for judgment in their favor on several grounds after Hammer rested. However, for consistency, we will refer to their request as a motion for Adirected verdict.@ 

^[3]  On appeal, the Woods do not challenge this conclusion or argue the judgment should be affirmed because Hammer sued the wrong parties.  

^[4]  We express no opinion on whether Hammer had a common-law cause of action for breach of implied warranty.  We need not reach that issue because of our conclusion that Hammer failed to present evidence of damages.

^[5]  The problems were discovered in summer of 2005, and the Smiths finished replacing the floor at the end of September 2007Cabout two weeks before trial.