Peter Pjetrovic v. Home Depot , 2013 Tex. App. LEXIS 10398 ( 2013 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-12-00116-CV
PETER PJETROVIC, Appellant
V.
HOME DEPOT, Appellee
On Appeal from the 336th District Court
Fannin County, Texas
Trial Court No. CV-09-39275
Before Morriss, C.J., Carter and Moseley, JJ.
Opinion by Justice Moseley
OPINION
Peter Pjetrovic, who had brought suit against Home Depot, 1 appeals the entry of a take-
nothing judgment entered in favor of Home Depot after an instructed verdict. Pjetrovic alleged
that his house suffered flooding due to the faulty installation of a dishwasher, which he alleged
that he had purchased from Home Depot and had paid Home Depot to install. Although the trial
court excluded Pjetrovic’s estimate of some $140,000.00 in damages resulting from the flooding,
Pjetrovic was allowed to present evidence that he had sustained $1,710.25 in damages.
In 1997, Pjetrovic, an immigrant to the United States and the chef/owner of several
Dallas restaurants, purchased a 261-acre ranch in Ivanhoe, Fannin County, Texas, upon which he
constructed a house as a residence for his family. In 2007, preparatory to placing the property on
the market for sale, Pjetrovic purchased a dishwasher appliance from Home Depot, the purchase
price including the cost of installation. Larry Hoffman, 2 a plumber who had apparently been
sent by Home Depot, came to install the dishwasher (this being his third attempt, the first two
times having been supplied with the wrong model of dishwasher). In this final trip, Hoffman
spent only about fifteen to twenty minutes installing the dishwasher and then left without causing
it to go through a wash cycle to assure that it was operating properly.
Pjetrovic testified that after the dishwasher was installed, he and his family left the house
to spend the night in Dallas, leaving at about the same time that Hoffman departed. At this time,
1
According to most of the defendant’s pleadings, its true name is “Home Depot U.S.A., Inc.” Despite this, the
moniker attached to the defendant in the style of the case, the plaintiff’s pleadings, and the final judgment is simply
“Home Depot.” Since the actual name of the defendant does not otherwise appear in the record, for the purpose of
this opinion we will adopt the common name (“Home Depot”) employed by the plaintiff and the trial court.
2
We note the clerk’s record contains references to the installer as “Larry Huff.” Because the record does not clearly
explain which name is correct for this individual, we use “Larry Hoffman,” which was the name used during trial.
2
the dishwasher had not been “cycled through” and was not running when they exited the house.
When the Pjetrovic family returned to the house the next day, they found it so flooded that water
was running out of the weep holes in the exterior brick walls and the water had materially
damaged the sheetrock, cabinets, trim, and floor coverings. After turning off the water well
pump, Pjetrovic observed that the source of the flood waters was the pipe providing hot water to
the dishwasher. Pjetrovic hired Metroplex Services to pump out the water at a cost of $1,710.25.
Lacking funds to repair the damages caused to the house, Pjetrovic was forced to remove it from
the market and continued to live there in its damaged state even though odors he attributed to the
flooding developed which he indicated adversely affected his breathing and were the cause of
constant complaints from his children.
Pjetrovic filed suit against Home Depot alleging that it had violated the Texas Deceptive
Trade Practices–Consumer Protection Act (DTPA) 3 and certain provisions of the Texas
Insurance Code, had committed common-law fraud, had acted negligently, and had breached its
contract with Pjetrovic. There seems to have been some difficulties in getting the matter ready
for trial and, when discovery had yet to be completed a year and a half after the suit was filed,
the trial court entered a scheduling order February 28, 2012. The record contains a motion to
compel discovery which alleges that Pjetrovic failed to attend a deposition scheduled on
April 20, 2012, but that motion was “cancelled.” Although the scheduling order specified a
deadline to disclose testifying experts by July 27, 2012, and a trial date of October 29, 2012,
Pjetrovic failed to disclose any experts within the deadline prescribed by the scheduling order.
3
TEX. BUS & COM. CODE ANN. §§ 17.41–.63 (West 2011 & Supp. 2012).
3
Pjetrovic’s first attorney filed a motion to withdraw on August 24, 2012. 4 A Rule 11 5 agreement
extending the deadline for the designation of experts to September 10, 2012, was filed
August 29, 2012. On August 31, 2012, the trial court held a hearing on Pjetrovic’s attorney’s
motion to withdraw. At that time, the trial court noted the filing of a “joint motion for
withdrawal of counsel” (signed both by Pjetrovic and his attorney) and granted the motion.
Pjetrovic failed to designate any expert witnesses by September 10, 2012, and some eighteen
days later, Pjetrovic’s new counsel filed a notice of appearance, a motion for continuance, and a
motion to extend the deadlines of the scheduling order. The motions were heard by the trial
court on October 5, 2012, and were all denied. On October 10, 2012, Pjetrovic filed a second
motion for continuance, but following a hearing on that motion on October 19, 2012, the trial
court denied the second motion for continuance as well.
In accord with the scheduling order, jury selection commenced October 29, 2012. At
trial, Pjetrovic was faced with the fact that he had no designated experts to testify concerning the
amount of damages his house had suffered. He then argued that as the owner of the property, he
could testify both as to the value of the property before the damage was suffered and the value
after the flooding occurred. Although the trial court initially concurred with this argument,
ruling that Pjetrovic would “be able to testify about his opinion of the value of his property
before and after, as well as his opinion of the costs,” a lengthy discussion ensued among the trial
court and the attorneys. After that discussion, the trial court ruled Pjetrovic’s testimony
4
Pjetrovic claims in his brief that he did not agree to this motion, but the record contains no evidence that Pjetrovic
opposed this motion.
5
TEX. R. CIV. P. 11. The parties do not brief and we do not express any opinion concerning whether a Rule 11
agreement can be used to modify a scheduling order.
4
concerning the damages he experienced would be limited solely to “the value of his property and
the cost to -- that he’s paid to repair it.” When Pjetrovic attempted to introduce evidence
concerning estimates he had received for the repairs that he believed to be necessary, the trial
court sustained Home Depot’s objection. The trial court also excluded Exhibit 1A, 6 which
Pjetrovic attempted unsuccessfully to introduce as a business record.
When Pjetrovic rested his case, Home Depot requested a directed verdict. The trial court
granted the directed verdict, dismissed the jury, and rendered a take-nothing judgment in favor of
Home Depot. 7 On appeal, Pjetrovic complains that the trial court abused its discretion by
granting the directed verdict, in having denied his two requested continuances, in its refusal to
permit Pjetrovic to supplement discovery, in having ruled Exhibit 1A to be inadmissible, and in
excluding Pjetrovic’s testimony regarding the costs of repair of the damage. He also maintains
that the trial court erred in granting judgment for Home Depot.
I. The Trial Court Neither Abused Its Discretion in Permitting Pjectrovic’s Attorney
to Withdraw Nor in Denying Pjetrovic’s Requested Continuances
Pjetrovic contends in his first issue that the trial court erred in permitting his first attorney
to withdraw because the withdrawal had a material adverse effect on the outcome of the case.
Pjetrovic alternatively complains that the trial court should have granted him a continuance after
his first attorney withdrew.
6
The nature of this exhibit and its content is discussed at more length later in this opinion.
7
When granting a directed verdict, a trial court may either instruct the jury to return a specific verdict or dismiss the
jury and render judgment. See Cline v. Ins. Exch. of Houston, 154 S.W.2d 491, 493 (Tex. Civ. App.—Galveston
1941), aff’d, 166 S.W.2d 677 (Tex. 1942).
5
As correctly argued by Pjetrovic, Rule 10 of the Texas Rules of Civil Procedure 8 is not
the sole legal requirement with which an attorney seeking to withdraw must comply. See TEX.
R. CIV. P. 10. The Rules of Professional Conduct permit a discharged attorney to withdraw
without any consideration of prejudice to the client, but an attorney who has not been discharged
cannot withdraw if it would have “a material adverse effect on the interests of the client.” TEX.
DISCIPLINARY RULES PROF’L CONDUCT R. 1.15. The Texas Supreme Court has held that a court
has a duty to see that an attorney’s withdrawal will not result in foreseeable prejudice to the
client. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986) (attorney could not withdraw
two days before trial); McAleer v. McAleer, 394 S.W.3d 613, 618 (Tex. App.—Houston [1st
Dist.] 2012, no pet.).
We review the ruling on a motion for continuance for a clear abuse of discretion. BMC
Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002). Pjetrovic’s first motion
for continuance was not accompanied by any affidavit. “No application for a continuance shall
be heard before the defendant files his defense, nor shall any continuance be granted except for
sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.”
TEX. R. CIV. P. 251. During the hearing, Pjetrovic presented no evidence in support of his
motion for continuance. If a motion for continuance was not accompanied by an affidavit, we
may not find an abuse of discretion. See Mathew v. McCoy, 847 S.W.2d 397, 399 (Tex. App.—
Houston [14th Dist.] 1993, no writ).
8
We note that Pjetrovic also complains that the deadlines in the motion did not comply with Rule 10 of the Texas
Rules of Civil Procedure. TEX. R. CIV. P. 10. Before the trial court granted the motion to withdraw, a Rule 11
agreement was filed. The deadlines in the motion were consistent with the Rule 11 agreement—even though the
concept of whether the Rule 11 agreement could override a scheduling order is not addressed.
6
We note that Pjetrovic filed a second motion for continuance on October 10, 2012, which
states, “The evidence shows that Movant was not negligent or at fault in causing his former
attorney’s withdrawal. See Exhibit ‘A’.” The Exhibit A to which reference is made consists of
Pjetrovic’s affidavit 9 which, while containing assertions that might demonstrate that Pjetrovic
exercised due diligence in securing a new attorney, contains no assertions concerning negligence
by or fault in the withdrawal of the first attorney.
Pjetrovic’s first attorney’s initial motion to withdraw stated, “Movant and Plaintiff are
unable to communicate in a manner that permits Movant to fully prepare and represent Plaintiff
in this cause.” The joint motion to withdraw signed by Pjetrovic, which postdated that initial
motion, does not contain this statement. Pjetrovic’s sole explanation for the withdrawal of
Pjetrovic’s first attorney is that Pjetrovic was late for a mediation. At the hearing on the second
motion for continuance, Pjetrovic’s attorney states that Michael Evans withdrew because
Pjetrovic failed to show up “timely” to a scheduled mediation. We note that Pjetrovic’s counsel
at that time had no personal knowledge of these facts, and it is apparent from the record that his
statements (not made under oath) were not intended as testimony. 10 The second motion for
9
The affidavit also provides that Pjetrovic, on August 29, 2012, scheduled an appointment with another attorney,
Kenneth Roesler, on September 7. At the meeting, Roesler informed Pjetrovic that his wedding was scheduled close
to the trial setting and that he may not be able to take the case. Pjetrovic states that he then attempted to get Roesler
to advise him how to designate experts. After Pjetrovic “called Mr. Roesler many times,” Roesler referred Pjetrovic
to Gary Corley. Pjetrovic met with Corley on September 28, 2012.
10
We note this Court has held, even though the testimony of attorneys should be under oath as with any other
witness, the statements of an attorney can be evidence if no objection to the lack of an oath is made. See Russ v.
Titus Hosp. Dist., 128 S.W.3d 332, 338 (Tex. App.—Texarkana 2004, pet. denied); see also In re M.N., 262 S.W.3d
799, 804 (Tex. 2008) (attorney’s statement, without objection, was evidence). On these occasions, however, it was
apparent that the attorney was making assertions of facts based on personal knowledge and everyone regarded the
statements as assertions of facts. In this case, the attorney’s statements were merely a summation of events about
which the attorney had no personal knowledge. Thus, opposing counsel neither knew nor should have known an
7
continuance does allege that Pjetrovic was a half-hour late to a mediation due to a doctor’s
appointment and that Home Depot’s counsel had already left. The record contains no evidence
concerning why Pjetrovic’s first attorney withdrew.
When a request for a continuance is based on the withdrawal of counsel, it is the duty of
the movant to show that the withdrawal was not due to negligence or fault on the part of the
movant. Villegas, 711 S.W.2d at 626; Pandozy v. Shamis, 254 S.W.3d 596, 601 (Tex. App.—
Texarkana 2008, no pet.). The Texas Supreme Court has suggested that it may be the trial
court’s duty to see that an attorney’s withdrawal will not result in foreseeable prejudice to the
client. Villegas, 711 S.W.2d at 626 (“In this case, the trial court abused its discretion because the
evidence shows that Villegas was not negligent or at fault in causing his attorney’s
withdrawal.”). Assuming, without deciding, an attorney’s withdrawal is grounds to request a
modification to a scheduling order, 11 we are confident that the requirement of lack of negligence
and fault would apply as well. Because Pjetrovic has failed to show his first attorney’s
withdrawal was not due to negligence or fault of Pjetrovic, error has not been established.
II. The Trial Court Did Not Abuse Its Discretion in Refusing to Modify the Scheduling
Order
In his first and second issues, Pjetrovic complains that the trial court erred in refusing to
enlarge the time under the Level III scheduling order to designate expert witnesses and to
objection was necessary. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) (per curiam) (waiver occurs
“when the opponent knows or should know that an objection is necessary”); see also Russ, 128 S.W.3d at 338
(opponent knew or should have known because “the evidentiary nature of the statements was obvious”).
11
Pjetrovic has provided us with no authority addressing whether modifying the deadlines in the scheduling order is
an appropriate remedy to prevent any prejudice. For the purposes of this opinion only, we will assume it is an
appropriate remedy.
8
conduct discovery. In light of the trial court’s refusal to grant a continuance, Pjetrovic claims the
refusal to modify the scheduling order was an abuse of discretion. According to Pjetrovic, there
was no danger of trial by ambush, and the trial court’s decision resulted in the case being decided
based on procedure rather than on a full presentation of the merits. Pjetrovic argues Home Depot
could have requested a continuance if the requested extension would have occasioned it any
surprise or prejudice.
A scheduling order as envisioned by the Texas Rules of Civil Procedure is to establish
discovery control plans. See TEX. R. CIV. P. 166a(c), 190.4. Appellate courts review a trial
court’s enforcement of a scheduling order for an abuse of discretion. Gunn v. Fuqua, 397
S.W.3d 358, 377 (Tex. App.—Dallas 2013, pet. filed). An abuse of discretion occurs when the
trial court acts in an unreasonable and arbitrary manner or without reference to any guiding rules
or principles. Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
When a party fails to timely designate an expert, exclusion is “mandatory and automatic
unless the court finds there was good cause for the failure to amend or supplement, or the failure
will not unfairly surprise or prejudice the other party.” Pilgrim’s Pride Corp. v. Smoak, 134
S.W.3d 880, 902 (Tex. App.—Texarkana 2004, pet. denied); see TEX. R. CIV. P. 193.6; see also
Fort Brown Villas III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009) (per
curiam). Pjetrovic had the burden of establishing good cause or a lack of unfair surprise or
prejudice. See id.
While Pjetrovic’s second attorney may have been hired at the eleventh hour, Pjetrovic
does not explain how he established good cause for a continuance in light of the inaction of his
9
former counsel. Pjetrovic’s lawsuit had been pending since July 28, 2009. Pjetrovic fails to
explain how good cause has been established when one takes into account that the case remained
almost inert for a period of almost three years. “Inadvertence of counsel is not good cause for
failure to adhere to discovery deadlines.” Sprague v. Sprague, 363 S.W.3d 788, 800 (Tex.
App.—Houston [14th Dist.] 2012, pet. denied); see Alvarado v. Farah Mfg. Co., 830 S.W.2d
911, 915 (Tex. 1992) (listing examples that are not good cause); PopCap Games, Inc. v.
MumboJumbo, LLC, 350 S.W.3d 699, 718 (Tex. App.—Dallas 2011, pet. denied). Pjetrovic has
failed to show good cause for an extension of the discovery deadlines.
While Texas recognizes a preference for cases to be decided on a full presentation of
their merits, Texas also recognizes that “[a] party is entitled to prepare for trial assured that a
witness will not be called because opposing counsel has not identified him or her in response to a
proper interrogatory.” Smith v. Sw. Feed Yards, 835 S.W.2d 89, 91 (Tex. 1992). Home Depot
was entitled to prepare for trial assured that it would not be surprised by new expert witnesses
only a few weeks before trial. The trial court did not abuse its discretion in its refusal to grant a
continuance.
III. The Trial Court Did Not Abuse Its Discretion in Excluding Exhibit 1A
Pjetrovic argues, in his second issue, that the trial court abused its discretion in excluding
Exhibit 1A as a business record of Home Depot. Exhibit 1A is a document which purports to be
10
a Home Depot chronological log of various communications among Pjetrovic, Hoffman, and
Home Depot employees. 12
Rule 803(6) of the Texas Rules of Evidence creates a hearsay exception for properly
authenticated business records. TEX. R. EVID. 803(6). This Court has observed:
The foundation for the business records exception has four requirements:
(1) the records were made and kept in the course of a regularly conducted
business activity, (2) it was the regular practice of the business activity to make
the records, (3) the records were made at or near the time of the event that they
record, and (4) the records were made by a person with knowledge who was
acting in the regular course of business.
Good v. Baker, 339 S.W.3d 260, 273 (Tex. App.—Texarkana 2011, pet. denied); see Powell v.
Vavro, McDonald, & Assocs., L.L.C., 136 S.W.3d 762, 765 (Tex. App.—Dallas 2004, no pet.).
As the proponent of the evidence, Pjetrovic bore the burden of showing that the proffered
documents fit within an exception to the general rule prohibiting the admission of hearsay
evidence. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 908 n.5 (Tex. 2004).
Exhibit 1A was not accompanied by a business records affidavit. Pjetrovic made a
formal bill of review concerning Exhibit 1A. Joel Barron, Jr., Home Depot’s representative at
the trial, testified that his duty with Home Depot was as an asset protection officer. Although his
job mainly concerned internal and external theft and the receipt of merchandise, Barron testified
he also had some familiarity with Home Depot’s records and that Exhibit 1A “[l]ooks like” a
business record of Home Depot. Barron testified that similar documents are prepared and
maintained in the ordinary course of business by persons with personal knowledge of the facts.
12
The log contains the following entry: “INSTLR WENT OUT TO CUST HOUSE TO INSTALL D/W AND
NOTICED THAT THE VALVE LOOKED STRANGE. HE ASSUMED THAT IT WOULD HOLD SO
CONTINUED WITH INSTALL.”
11
Barron, though, was unfamiliar with the record represented by Exhibit 1A or with the associates
who made the entries in the record.
Pjetrovic never established the first requirement of qualifying the exhibit as a business
record—that the record at issue was made and kept in the course of a regularly conducted
business activity. Barron was not a custodian of that record and merely testified that the record
“[l]ooks like” a Home Depot record. Pjetrovic was required to provide evidence that the record
was a Home Depot record prepared and maintained in the ordinary course of business—not that
the record might be a Home Depot record prepared and maintained in the ordinary course of
business. Pjetrovic failed to establish the record was a business record, and the trial court did not
abuse its discretion.
IV. The Trial Court Did Not Abuse Its Discretion in Refusing to Permit Lay Testimony
on the Cost to Repair
In his third issue, Pjetrovic argues that the trial court erred in excluding Pjetrovic’s lay
opinion testimony concerning the cost of repairs to the house. 13 Pjetrovic does not argue he
should have been qualified as an expert witness, but, rather, he claims that as a homeowner, he
could testify concerning the cost to repair his own home. 14
13
We note that a homeowner may elect to seek damages for the cost of repair, the diminution of value, or even both
provided both would not result in double recovery. Parkway Co. v. Woodruff, 901 S.W.2d 434, 441 (Tex. 1995)
(election required because awarding both would result in double recovery). We further note the trial court initially
ruled that Pjetrovic could testify to the diminution in value. Pjetrovic does not argue on appeal that he should have
been permitted to testify concerning the diminution of value of the house. Because the issue has not been raised on
appeal, any error committed by the trial court in later refusing to permit Pjetrovic to testify concerning the
diminution in value has not been assigned for our review. See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex.
1998) (per curiam).
14
Pjetrovic claims Rule 193.6 of the Texas Rules of Civil Procedure does not apply to “parties named in the suit,”
citing Southwest Feed Yards, 835 S.W.2d at 91 (discussing predecessor to TEX. R. CIV. P. 193.6). While Southwest
Feed Yards notes that an undisclosed party witness should not be excluded “when identity is certain and when his or
12
Pjetrovic perfected a formal bill of review outside the presence of the jury. In that,
Pjetrovic testified that he had priced the materials he believed were needed to repair the house
and the cost of the materials totalled $73,212.50. Recalling his experience when he had acted as
his own contractor in building the house in 1997, Pjetrovic said he had spent approximately
$80,000.00 in materials and had a total construction cost of $160,000.00. Pjetrovic, based on his
personal experience, then estimated the total cost to repair the flood damage to be approximately
$140,000.00. In addition, Pjetrovic obtained one estimate on damages and, “based upon that
estimate,” believed damages would be approximately $146,000.00.
Under what is known as the “property owner’s rule,” a property owner can testify to the
market value of his own property. Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984); Kinder
Morgan N. Tex. Pipeline, L.P. v. Justiss, 202 S.W.3d 427, 442 (Tex. App.—Texarkana 2006, no
pet.). This rule, though, is limited to the market value of the property.
Pjetrovic cites Bernstein v. Thomas, 298 S.W.3d 817, 826 (Tex. App.—Dallas 2009, no
pet.), and Bennett v. McDaniel, 295 S.W.3d 644, 645 (Tex. 2009) (per curiam), in support of his
argument that lay testimony is permitted to testify on the issue of costs. In Bernstein, the Dallas
Court of Appeals held that a homeowner can testify concerning the reasonableness of “[a]n
objective valuation of services, such as a bill, receipt or . . . an estimate.” Bernstein, 298 S.W.3d
at 826. The Dallas court did not conclude that a landowner could testify as to the cost to repair.
See id. In Bennett, the Texas Supreme Court, while noting the testimony could have been
her personal knowledge of relevant facts has been communicated to all other parties,” we note that Southwest Feed
Yards cautions, “Certainly a more obscure or indirect identification than that involved here could permit exclusion
of a party witness.” Id. Because Home Depot does not rely on Rule 193.6 of the Texas Rules of Civil Procedure,
we do not need to decide the issue in this case.
13
excluded as hearsay, suggests a jury could consider a homeowner’s testimony concerning an
estimate to repair a house’s roof. Bennett, 295 S.W.3d at 645. We first note that Bennett
remanded the case in the interests of justice because the homeowner failed to testify that the
estimate was reasonable. Id. Thus, the suggestion was only dictum. Second, the dictum in
Bennett upon which Pjetrovic relies concerns error preservation and does not include a holding
that a landowner may testify as to the cost of repair. At best, Bennett merely holds that an
objection to hearsay evidence is required. Id. Finally, the cost to repair in Bennett was based on
a professional estimate, not the homeowner’s own opinion. Id. Pjetrovic sought to introduce his
own estimate of the cost to repair—not an estimate of a professional. 15
Home Depot relies on Wortham Bros., Inc. v. Haffner, 347 S.W.3d 356, 361 (Tex.
App.—Eastland 2011, no pet.). In Wortham, the Eastland Court of Appeals held the property
owner’s rule “does not extend to the reasonable cost of repairing the owner’s property
particularly when those repairs are of a technical or specialized nature.” Id. We agree with the
Eastland court. The property owner’s rule is based on the presumption that the average property
owner will be familiar with the market value of his own property. The average property owner,
however, will not be familiar with the cost to repair that property, especially when the repairs are
of a technical or specialized nature.
Pjetrovic argues that Wortham concerned a roof repair which he says is more technical in
nature than the home improvement type of repairs involved in his case. It is not necessary for us
15
We note that Pjetrovic testified he talked with two companies and received one estimate. The estimate he sought
to introduce, though, was based on his own calculations. Pjetrovic did testify he believed his estimate to be
reasonable based on the one estimate he received, but did not testify as to what that estimate was. Further, unlike in
Bennett, Home Depot objected to the testimony.
14
to decide whether a homeowner can testify concerning minor repairs. In his bill of review,
Pjetrovic testified concerning major renovations estimated to cost $140,000.00. These
renovations involve the repairs or replacement of drywall, tile, carpeting, and cabinet work.
Pjetrovic’s testimony exceeds normal home improvement and, in essence, concerned a whole
house renovation. Pjetrovic conceded that the initial cost of constructing the house was
$160,000.00. While many homeowners may do the type of renovations necessary to repair the
damage to Pjetrovic’s house, such renovations do require technical skills if they are to be done
correctly. The average layperson would lack the specialized knowledge, skill, experience, or
training to correctly install drywall, tile, carpeting, and cabinets—particularly on a project of this
size. 16 The trial court did not err in concluding Pjetrovic could not give lay opinion testimony17
concerning the whole house renovation at issue in this case.
V. The Record Contains Less Than a Scintilla of Evidence that Hoffman Was
Negligent
Pjetrovic’s fourth issue contends the trial court erred in granting a directed verdict
because fact issues existed concerning negligence. 18 Although Pjetrovic had a contractual
relationship with Home Depot, the issue before this Court is liability for the tort of negligence—
16
Cf. Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 851 (Tex. 2011) (“[W]hen
the main substance of the witness’s testimony is based on application of the witness’s specialized knowledge, skill,
experience, training, or education to his familiarity with the property, then the testimony will generally be expert
testimony within the scope of Rule 702.”).
17
Pjetrovic has not argued on appeal that he has the specialized knowledge, skill, experience, training, or education
to testify as an expert.
18
Home Depot’s request for a directed verdict focused on the negligence cause of action. Home Depot did not
explain how its argument would support a directed verdict for Pjetrovic’s other causes of action. Pjetrovic,
however, has only assigned error on appeal concerning the negligence cause of action. Therefore, we will only
address the negligence cause of action.
15
not contract liability. The elements of a negligence cause of action are the existence of a legal
duty, a breach of that duty, and damages proximately caused by the breach. IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). Home Depot
does not challenge that Pjetrovic had damages proximately caused by the breach. 19 Home Depot
argues the trial court did not err in granting a directed verdict because Pjetrovic failed to prove
that Hoffman was negligent, failed to prove that Hoffman’s negligence was in fact the cause of
the flooding, and failed to prove that Home Depot was liable for Hoffman’s negligence.
“In reviewing a directed verdict, we decide whether there is any evidence of probative
value to raise an issue of material fact on the question presented, and we review the evidence in
the light most favorable to the person suffering the adverse judgment.” Exxon Corp. v. Emerald
Oil & Gas Co., L.C., 348 S.W.3d 194, 220 (Tex. 2011); Szczepanik v. First S. Trust Co., 883
S.W.2d 648, 649 (Tex. 1994) (per curiam). The presence of some evidence “will defeat the
directed verdict.” Exxon, 348 S.W.3d at 220. The Texas Supreme Court has observed a directed
verdict may be proper in two situations: 1) “when a plaintiff fails to present evidence raising a
fact issue essential to the plaintiff’s right of recovery” and 2) “if the plaintiff admits or the
evidence conclusively establishes a defense to the plaintiff’s cause of action.” Prudential Ins.
Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).
A “no evidence” point will be sustained only if there is a complete absence of evidence
establishing a vital fact, the only evidence offered to prove a vital fact cannot be considered due
to a rule of law or evidence, there is less than a scintilla of evidence to prove the vital fact, or the
19
We note Pjetrovic introduced evidence of $1,710.25 in damages.
16
opposite of the vital fact is conclusively established. Jelinek v. Casas, 328 S.W.3d 526, 532
(Tex. 2010). More than a scintilla of evidence exists when the evidence permits the conclusion
of reasonable and fair-minded people to differ. Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997). “Less than a scintilla of evidence exists when the evidence is ‘so
weak as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d
61, 63 (Tex. 1983)). In our review, we credit favorable evidence if a reasonable fact-finder could
do so and disregard contrary evidence unless a reasonable fact-finder could not. City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005).
Home Depot claims Pjetrovic failed to explain why the leak occurred and failed to prove
that the leak was a foreseeable result of Hoffman’s negligence. Home Depot acknowledges that
there is evidence this was Hoffman’s third attempt to deliver and install the dishwasher, the
installation only took fifteen to twenty minutes, Hoffman did not cycle the dishwasher, and when
Pjetrovic returned home, Pjetrovic observed water coming from the dishwasher “supply line.”
According to Home Depot, neither the fact that the installation only took fifteen to twenty
minutes nor the evidence that Hoffman did not cycle the dishwasher is evidence of negligence
(either singularly or together) in the absence of evidence that a reasonably prudent plumber
would have behaved differently. Because Pjetrovic testified the dishwasher was not running
when he left the house, Home Depot points out that cycling the dishwasher would have neither
detected nor prevented the leak that occurred. Further, the mere fact that Hoffman had attempted
on two different prior occasions to deliver a different model than the one that was ordered does
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not permit any inference of negligence in the installation of the dishwasher eventually installed.
As a last point, Home Depot claims there is no evidence the leak from the dishwasher’s supply
line occurred due to any act or omission on the part of Hoffman.
Pjetrovic’s personal observations of the leak were insufficient circumstantial evidence to
create a fact issue concerning whether Hoffman was negligent. Pjetrovic testified that he
returned home to a house filled with water and a leak coming from the pipe supplying water to
the recently installed dishwasher. Pjetrovic did not specify whether the leak was due to a burst
pipe, whether a joint had failed, or what had caused the leak. The leak might have been caused
by Hoffman’s negligence in installing the dishwasher, but it might also have been caused by a
multitude of causes, such as a corroded supply line or a product defect in the dishwasher. While
the circumstantial evidence certainly can create a suspicion that Hoffman was negligent, the
conclusion that Hoffman was negligent was nothing more than speculation. While a jury may
make reasonable inferences from circumstantial evidence, the jury may not make inferences that
are merely guesses. See JSC Neftegas-Impex v. Citibank, N.A., 365 S.W.3d 387, 396 (Tex.
App.—Houston [1st Dist.] 2011, pet. denied). Pjetrovic failed to present more than a scintilla of
evidence that Hoffman was negligent.
The trial court did not err in granting Home Depot’s motion for directed verdict.
VI. Conclusion
While some judges may have exercised their discretion differently, we cannot say that the
trial court erred in permitting Pjetrovic’s first counsel to withdraw, refusing to grant Pjetrovic a
continuance, or refusing to modify the scheduling order discovery deadlines. Pjetrovic failed to
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establish that Exhibit 1A was admissible as a business record, and the trial court did not err in
excluding any lay opinion testimony by Pjetrovic on the cost to repair the house. Lastly, the trial
court did not err in granting a directed verdict because Pjetrovic failed to establish the leak was
caused by Hoffman’s negligence.
For the reasons stated, we affirm.
Bailey C. Moseley
Justice
Date Submitted: July 17, 2013
Date Decided: August 20, 2013
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