U.S. Ply, Inc. v. ARCI, Ltd.

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-17-00128-CV
____________________
U.S. PLY, INC., Appellant
V.
ARCI, LTD., Appellee
_______________________________________________________ ______________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 14-03-03055-CV
________________________________________________________ _____________
MEMORANDUM OPINION
This appeal involves a dispute between a roofing subcontractor that installed
roofs on two apartment buildings in Montgomery County and the entity that
manufactured the roofing materials the subcontractor used to build the roofs.
Following a bench trial, the trial court found in the subcontractor’s favor and
awarded damages. The manufacturer appealed and filed a brief, which raises ten
issues for our review. We conclude the manufacturer’s issues are either without
1
merit or were not properly preserved for appellate review. Thus, we affirm the
judgment the trial court signed following the trial.
Background
The appellant, U.S. Ply, Inc., manufactures and sells an array of roofing
materials used on commercial buildings. The performance of one of its products—
RapidGRIP—is the product that lies at the heart of the parties’ dispute. The evidence
in the trial shows that RapidGRIP comes in rolls and that commercial roofing
contractors use it in several applications to build commercial roofs. One of these
involves using RapidGRIP as the middle layer of a three-ply roofing system.
RapidGRIP is useful for this purpose because when correctly installed, it firmly
bonds with the other two layers of roofing material. When finished, this category of
roof is known as a three-ply, modified-bitumen roof.
ARCI, Ltd. is the subcontractor that purchased RapidGRIP and used it on the
roofs that were the subject of the trial. The parties tried the case to the bench. By its
verdict, the trial court found that the manufacturer misrepresented the qualities of
the RapidGRIP to the subcontractor in connection with its purchase of RapidGRIP,
that the manufacturer violated express and implied warranties associated with the
sales, and that the repairs the subcontractor performed to correct the problems on the
roofs, allegedly associated with the RapidGRIP’s failure to create a sufficient bond
2
to the ply that it covered, were reasonable and necessary. The trial court also found
that the subcontractor did not fail to store the RapidGRIP properly before using it or
fail to follow any of the manufacturer’s instructions and industry standards that were
material to properly installing the modified-bitumen roofs.
U.S. Ply’s product information sheet for RapidGRIP describes the product as
a “SBS (Styrene-Butadiene-Styrene) self-adhering membrane[,] [m]anufactured
with a strong fiberglass mat that is saturated and coated with a premium quality,
‘high tack’ asphaltic bitumen that is combined with durable SBS elastomers and
protected by a poly release film for easy installation.” The label indicates that
RapidGRIP, in some roofing systems, may be “cold applied, SBS torch applied and
SBS mop applied assemblies where applicable.” In January and February 2013,
ARCI used RapidGRIP as the middle layer of a three-ply, modified-bitumen asphalt
roofing system on two apartment buildings that were built in Montgomery County.
ARCI performed the work as a subcontractor working for the general contractor on
the project, Construction Supervisors, Inc. The parties refer to the construction
project as “Sunningdale,” as do we.
The testimony in the trial shows that before building the roofs at Sunningdale,
ARCI had over thirty years of experience installing roofs on commercial buildings,
which included successfully building between 2,500 and 3,000 modified-bitumen
3
roofs using a self-adhering roofing membrane manufactured by one of U.S. Ply’s
competitors. Before using RapidGRIP at Sunningdale, however, ARCI had never
used that brand of roofing membrane. The testimony from the trial shows that before
ARCI decided to use RapidGRIP on its project at Sunningdale, ARCI’s president,
Jody Born, contacted Shawn Walker, a representative for U.S. Ply. Jody and Walker
met to discuss using U.S. Ply’s roofing products on the modified-bitumen roofs
ARCI planned to build at Sunningdale. Jody testified that he told Walker about the
products ARCI traditionally used to build modified-bitumen roofs, and that the
roofing membrane they were using could be applied cold—that is, without using a
torch. Jody explained that Walker told him that RapidGRIP was “as good or better”
than the brand of roofing membrane ARCI had been using for this type roof.1
By late January or early February 2013, ARCI finished installing the
RapidGRIP on roofs it built on the apartments at Sunningdale. As ARCI’s work
neared completion, the project’s architect hired Building Exterior Solutions, L.L.C.
(BES) to inspect the roofs to determine whether they were substantially complete.
BES inspected the roofs in mid-February 2013 and then issued a report. In its report,
BES noted five types of deficiencies in the roofs, including “[u]n-adhered laps in the
1
Walker did not testify in the trial, and Jody’s testimony is the only testimony
in the record explaining what he and Walker discussed that led ARCI to switch from
the products it had been using to U.S. Ply’s products for these roofs.
4
adhered base sheet.” The testimony and documents in evidence show the RapidGRIP
membrane did not bond with the ply it was used to cover over large areas on both
apartment’s roofs.
In early April 2013, U.S. Ply signed an agreement with ARCI defining the
scope of repairs and materials required to correct the problems associated with the
RapidGRIP on one of the apartment buildings at Sunningdale. The parties refer to
that building as building two. They refer to the building that U.S. Ply never agreed
to repair as building one.
Under the repair agreement, U.S. Ply agreed to pay ARCI $57,524 for the
labor required to repair the roof on building two with roofing materials that were
supplied by U.S. Ply. BES recommended repairs due to problems with the
RapidGRIP on both roofs. ARCI proceeded to repair the roofs on both buildings
even though U.S. Ply only agreed to pay for the repairs to building two. On building
two, ARCI replaced the roof under the terms of its repair agreement with U.S. Ply.
To repair the roof on building one, ARCI added two additional layers of roofing
material over the existing roof pursuant to the recommendation by BES to repair the
roof that way.
Although ARCI provided the labor to repair the roof on building two, U.S.
Ply never paid for the repairs based on the requirements of the written agreement
5
covering that building. In March 2014, U.S. Ply placed a check for $57,524 into the
registry of the district court and sued ARCI seeking a declaratory judgment stating
that it owed ARCI nothing for repairing the two roofs. U.S. Ply asked the trial court
to declare the parties’ rights. In response to the suit, ARCI counterclaimed, alleging
that U.S. Ply was guilty of deceptive trade practices, had misrepresented the qualities
of the RapidGRIP, and breached implied and express warranties accompanying
ARCI’s purchases of the RapidGRIP it used at Sunningdale. ARCI’s live pleading
alleges that in connection with ARCI’s purchases of U.S. Ply’s brand of roofing
products, U.S. Ply represented that RapidGRIP is “self-adhering[,]” “would fully
adhere[,]” and “that there was no additional attachment method needed” to install
the product. U.S. Ply’s live pleadings deny that the RapidGRIP used at Sunningdale
failed to bond to the lower ply of the roofs on which it was used, that the RapidGRIP
was defective, or that U.S. Ply misrepresented anything about RapidGRIP in
connection with ARCI’s purchase of its products.
In late 2016, the case went to trial. Before the trial began, the trial court re-
aligned the parties, making ARCI the plaintiff and U.S. Ply the defendant. Thirteen
witnesses testified over the course of a four-day trial. ARCI and U.S. Ply called
expert witnesses, and each discussed why the RapidGRIP used at Sunningdale failed
to bond to the bottom ply of the modified-bitumen roofs.
6
In mid-January 2017, the trial court signed a judgment awarding ARCI
$171,105 in damages and $224,200 in attorney’s fees, plus conditional awards of
attorney’s fees dependent on whether ARCI prevailed through each stage of any
appeals. In mid-February 2017, U.S. Ply moved for new trial. It also filed a request
asking that the trial court provide the parties with written findings of fact and
conclusions of law. The trial court never filed written findings, and U.S. Ply filed a
timely notice of appeal.
Issues
U.S. Ply raises ten issues for our review in its brief. For convenience, we group
and then analyze them under four headings: (1) is the evidence legally and factually
sufficient to support the judgment; (2) did ARCI’s alleged failure to follow U.S.
Ply’s instructions and industry standards when installing the RapidGRIP waive its
right to recover on ARCI’s implied and express warranty claims; (3) was the
testimony of Bradley Hughes, ARCI’s roofing expert, properly admitted and does it
provide reliable support for the verdict; and (4) did ARCI preserve its right to obtain
the trial court’s written findings regarding the verdict.
Standard of Review
Four of U.S. Ply’s appellate issues argue the evidence is legally and factually
insufficient to support the trial court’s verdict. We address the standard for those
7
issues here. In an appeal from a bench trial, the trial court’s findings of fact are
reviewable under the same legal and factual sufficiency standards that are used to
determine whether the evidence admitted during a trial is sufficient to support the
jury’s answer to the jury charge.2 Stated another way, the trial court’s factual
findings “have the same force and dignity as a jury’s verdict[.]” 3 When parties try
the case to the bench, the trial court acts as the factfinder and judges the credibility
of the witnesses, the weight to give to the testimony, and resolves any
inconsistencies that may exist in the evidence before it in the trial.4 In reviewing
findings of fact, we credit evidence that supports the verdict if the trial court could
have done so, and we disregard evidence that is inconsistent or contradicts the trial
court’s findings unless the court, given the evidence before it, could not have
resolved the conflict in a way that favors its verdict.5
2
Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City of Seven
Points, 806 S.W.2d 791, 794 (Tex. 1991).
3
Anderson, 806 S.W.2d at 794.
4
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see also City
of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
5
See Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006)
(citing City of Keller, 168 S.W.3d at 827); see Am. Interstate Ins. Co. v. Hinson, 172
S.W.3d 108, 114 (Tex. App.—Beaumont 2005, pet. denied).
8
Here, the trial court failed to provide the parties with written findings of fact
and conclusions of law in response to U.S. Ply’s first request asking for them. U.S.
Ply, however, then failed to notify the trial court that its findings were past due. 6 In
the absence of written findings, we imply all findings of fact needed to support the
judgment if there is evidence to support them. 7
Under the legal-sufficiency standard of review, we consider the evidence
admitted in the trial in the light that most favors the findings the appellant is
challenging in the appeal. 8 We indulge every reasonable inference that can be made
from the evidence in favor of the trial court’s verdict, and then we determine whether
the legally sufficient evidence was admitted during the trial to support the trial
court’s verdict.9 If the trial court could have credited the evidence that it considered
in favor of its verdict, we will too, and we must disregard evidence contrary to the
verdict unless it is evidence the trial court could not have reasonably decided to
6
See Tex. R. Civ. P. 297 (requiring a party to file a notice of past due findings
if the trial court fails to provide its findings within thirty days of the date the party
filed its original request for them).
7
See Seger v. Yorkshire Ins. Co., Ltd., 503 S.W.3d 388, 401 (Tex. 2016)
(citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83-84 (Tex. 1992)).
8
See City of Keller, 168 S.W.3d at 823.
9
Id.
9
ignore.10 Ultimately, after viewing the evidence in a favorable light, we must decide
if the finding the appellant is challenging was reasonable given the evidence
admitted in the trial.11
When the appellant raises factual-sufficiency complaints in its appeal, we
examine all the evidence admitted in the trial to evaluate whether the evidence is
factually sufficient to support the trial court’s verdict.12 When conducting a factual-
sufficiency review, we view the evidence in a neutral light, and we are not authorized
to set aside the findings being challenged unless the overwhelming weight of the
evidence is contrary to the implied findings such that the verdict is wrong and
unjust. 13
When reviewing a trial court’s conclusions of law, we apply a de novo
standard. 14 On appeal, we cannot review a trial court’s legal conclusions for factual
10
Id. at 827.
11
Id.
12
Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
13
See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989);
Cain, 709 S.W.2d at 176.
14
See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex.
2002).
10
insufficiency. 15 Instead, the trial court’s legal conclusions are reviewable to
determine whether the trial court properly applied the law to the facts of the case. 16
1. Is the evidence legally and factually sufficient to support the judgment?
Liability
In its first, sixth, and seventh issues, U.S. Ply argues the trial court’s judgment
should be reversed because the trial court’s findings are unsupported by evidence
that is sufficient to support the trial court’s conclusion that U.S. Ply misrepresented
RapidGRIP’s qualities or its conclusion that U.S. Ply breached any express or
implied warranties that accompanied the relevant sales. 17 In support of these
arguments, U.S. Ply relies heavily on the roofing report of its employee, Clint
Freeman. Freeeman inspected the roofs in late-February 2013. U.S. Ply also relies
heavily on a report of BES, authored by its employee Mike Hoecherl. Hoecherl
15
Id.
16
Id.
17
In issue one, U.S. Ply also argues that not enough evidence was before the
trial court to support its finding that ARCI needed to replace the roof that it installed
on building one. U.S. Ply makes essentially the same argument in issue six. Because
the arguments are so similar, we address them together in analyzing U.S. Ply’s sixth
issue.
11
inspected the roofs before they were completed. His report states the “modified
bitumen roof system[s] [ARCI installed at Sunningdale] were not completed per
industry standard roofing practices and the roof system manufacturer’s guidelines.”
According to U.S. Ply, except for Hoecherl’s testimony explaining why the
RapidGRIP used at Sunningdale failed, the record contains no other admissible or
reliable evidence explaining why the RapidGRIP ARCI installed malfunctioned.
In presenting its arguments, and to isolate the testimony the trial court
considered from ARCI’s roofing expert, Bradley Hughes, U.S. Ply suggests that his
testimony was both inadmissible and unreliable. According to U.S. Ply, the trial
court should not have allowed Hughes to testify because ARCI failed to provide it
with a copy of Hughes’ report by the discovery deadlines in the docket-control order
that controlled the discovery deadlines in the case. Also, U.S. Ply argues that Hughes
did not have the qualifications that he needed to determine why the RapidGRIP used
at Sunningdale malfunctioned. U.S. Ply concludes that without the benefit of
Hughes’ testimony, the record does not contain legally or factually-sufficient
evidence to support the implied findings that must be made to support the trial
court’s verdict. 18
18
U.S. Ply advances the same complaints about the admissibility and
reliability of Hughes’ testimony in issues two through five. We will address U.S.
Ply’s complaints about Hughes’ qualifications and whether his testimony was
12
In general, the record shows that the parties presented the trial court with two
conflicting theories to explain why the RapidGRIP malfunctioned when it failed to
bond to the ply of roofing material that it covered. U.S. Ply claimed and produced
evidence during the trial that ARCI failed to follow U.S. Ply’s instructions for the
product and to apply the product in accord with industry practices. Yet the record
also contains evidence that ARCI properly installed the RapidGRIP and followed all
of the material instructions and prevailing industry standards when installing the
product. Additionally, the record before the trial court contains substantial evidence
showing that the RapidGRIP used at Sunningdale would not bond to the ply of
roofing material it covered without using a torch.
The final judgment the trial court signed does not specify the legal theory the
trial court used to reach its verdict. To prevail on appeal, and because the trial court
did not reduce its findings and conclusions to writing, U.S. Ply must establish that
ARCI was not entitled to prevail on any of the theories of liability on which it relied
reliable in discussing those issues. Nevertheless, because we conclude that the trial
court had the discretion to allow Hughes to testify and to find his testimony reliable,
we conclude the trial court could reasonably rely on his testimony in reaching its
verdict.
13
at trial. 19 Thus, U.S. Ply must establish in its appeal that the evidence before the trial
court is insufficient to show that U.S. Ply violated the Deceptive Trade Practices Act
(DTPA), breached any express warranties, or breached any implied warranties that
apply to ARCI’s purchases of the RapidGRIP it used at Sunningdale. 20
Before examining the evidence relevant to ARCI’s DTPA and implied
warranty of merchantability claims, we examine the record to determine whether the
evidence supports the trial court’s judgment under ARCI’s express warranty
theory. 21 During the trial, ARCI claimed that it relied on various representations
about RapidGRIP’s qualities on the product’s label and representations that Walker
made during his meeting with Jody. The label on the boxes the RapidGRIP came in
states the product is a “premium quality, ‘high tack’” membrane and indicates that
in some applications, RapidGRIP can be applied cold. The testimony in the trial
19
See Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 470 S.W.3d 636,
648 (Tex. App.—Dallas 2015, no pet.) (“An appellant must attack all independent
bases or grounds that fully support a complained of ruling or judgment.”).
20
See Tex. Bus. & Com. Code Ann. § 2.313(a)(2) (West 2009) (providing that
“[a]ny description of the goods which is made part of the basis of the bargain creates
an express warranty that the goods shall conform to the description”); id. §
2.314(b)(6) (West 2009) (stating that, for a good to be merchantable, it must
“conform to the promises or affirmations of fact made on the container or label if
any”); id. § 17.46(b)(5) (West Supp. 2018) (making it a deceptive trade practice to
represent that goods have characteristics or benefits they do not have).
21
See Tex. R. App. P. 47.1.
14
reflects that a purchaser’s ability to apply the product cold means the product can be
applied without using supplemental heat, like a torch, to cause the product to bond
with the upper and lower plies of a modified-bitumen roof. According to Jody, in his
meeting with Walker, Walker told him that RapidGRIP is “as good or better” than
the roofing membrane they were using regarding the quality of the membrane to
stick on roofs during a conversation when Walker knew that ARCI intended to apply
the product without using a torch.
Ultimately, ARCI requested that Construction Supervisors, the general
contractor on the Sunningdale project, approve its request to use U.S. Ply products
on the roofs that ARCI was hired to build at Sunningdale. Construction Supervisors
forwarded the information about the roofs that it got from ARCI to the architect for
the project and ARCI received the required approvals it needed to use U.S. Ply’s
products to build the roofs. The written materials that ARCI provided Construction
Supervisors about RapidGRIP, which originated at U.S. Ply, state that RapidGRIP
is a self-adhering, high-tack membrane that can be used at ambient temperatures of
50℉ or higher and when RapidGRIP is at least 70℉ if installed while exposed to
direct sunlight without using supplemental heat. Based on the testimony about the
circumstances showing how ARCI chose to use the RapidGRIP brand of roofing
membrane for its work at Sunningdale, we conclude the record contains legally and
15
factually-sufficient evidence to support the trial court’s implied finding that ARCI
relied on information supplied by U.S. Ply to purchase the RapidGRIP that it used
on the project. 22
There is also evidence in the record that supports the trial court’s finding that
the qualities of the RapidGRIP ARCI used on the project did not conform to the
product’s label and the representations Walker made about RapidGRIP during his
meeting with Jody. 23 The testimony in the trial established that Mid-States Asphalt
manufactures RapidGRIP under specifications provided to it by U.S. Ply. In late-
March 2013, after BES identified that there was a problem with the RapidGRIP
ARCI installed on the apartment’s roofs, U.S. Ply sent Mid-States Asphalt a part of
the leftover roll that ARCI removed from one of the roofs at Sunningdale. U.S. Ply
asked that Mid-States Asphalt test the roll. In an email, U.S. Ply told Mid-States
Asphalt that U.S. Ply had conducted its own tests on the leftover roll of RapidGRIP,
and that its tests showed the RapidGRIP “[could] be easily removed.” Several days
after sending the leftover roll, U.S. Ply sent a follow-up email to Mid-States Asphalt.
22
See Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 (Tex. 2002)
(stating that reliance is an element a plaintiff must prove to show the defendant
breached an “express warranty (to a certain extent)”).
23
See Tex. Bus. & Com. Code Ann. § 2.313(a)(2); Redman Homes, Inc. v.
Ivy, 920 S.W.2d 664, 668 (Tex. 1996) (indicating that circumstantial evidence may
establish a fact issue showing a product malfunctioned).
16
The email states: “[T]he RapidGRIP is not sticking to the base on the project. What
[U.S. Ply] need[s] to know is whether or not the sample provided to you is mating
properly . . . . or do you need supplemental heat or conditions to make that happen?”
This email, along with the evidence showing that BES found problems with the
RapidGRIP installed on the roofs, clearly shows that U.S. Ply wanted to know
whether the leftover roll could be used for applications like those at Sunningdale
without a torch because the label indicated the product could be used for that type of
application if applied properly and within the temperatures that are stated on the
product’s label.
In late-March 2013, Mid-States Asphalt tested the leftover roll. After testing
the roll, Mid-States Asphalt advised U.S. Ply, by email, that proper “adhesion will
be achieved by simple torching down the finished roof covering over the
Rapid[GRIP].” About thirty minutes after receiving that email, U.S. Ply replied:
“That isn’t our question nor concern – it is that it appears that it will not bond without
a torch which is the complaint – that is what we want an answer to.” About an hour
later, Mid-States Asphalt informed U.S. Ply that “[using supplemental heat] will
most definitely solve the problem. . . . So, yes supplemental heat will be required in
order to facilitate the bond to the substrate. . . . I hope that this answers your
17
question.” Later that same afternoon, Mid-States Asphalt offered to replace the
RapidGRIP that ARCI used on its project.
We conclude the evidence admitted during the trial allowed the trial court to
conclude as a reasonable finder of fact that the RapidGRIP failed to bond to the roof
when applied without using a torch. ARCI installed the RapidGRIP under conditions
significantly cooler than the conditions when U.S. Ply and Mid-States Asphalt tested
the leftover roll. The tests on the leftover roll were conducted at around 75℉. U.S.
Ply’s report about its test of the leftover roll states: “Rapid[GRIP] did not adhere
very well.”
U.S. Ply argues the tests on the leftover roll were not relevant because by the
time the roll was tested, it was no longer in the same or similar condition that it was
in when it was sold. Based on that argument, U.S. Ply concludes the test results on
the roll do not explain why the rolls of RapidGRIP ARCI used failed to bond to the
lower ply of the roofs on which it was installed. To support this argument, U.S. Ply
points to the evidence in the record from which the trial court might have found that
ARCI failed to store or to install the RapidGRIP properly. According to U.S. Ply,
the record establishes that storage and installation errors, not a malfunction in the
RapidGRIP, explain why the RapidGRIP failed.
18
To prove causation on an express warranty claim, the plaintiff must prove the
breach is a “substantial factor in bringing about” the plaintiff’s injuries.24 According
to U.S. Ply, the overwhelming great weight and preponderance of the evidence
shows the RapidGRIP malfunctioned because ARCI failed to store or to install the
RapidGRIP it acquired properly. U.S. Ply argues that given the evidence about how
the RapidGRIP was stored and installed, the leftover roll was no longer in a condition
that it could be tested to determine what condition the rolls were in when ARCI
acquired them. And it argues that ARCI’s storage and installation errors caused the
RapidGRIP to malfunction when the rolls did not bond to the roofs.
The record from the trial contains testimony from which the trial court might
have found that (1) ARCI failed to roll the RapidGRIP with a weighted roller after
placing it over the mechanically-fastened ply that it installed on the roofs; (2) ARCI
did not install the RapidGRIP when the ambient air temperatures were at least 50℉
and the RapidGRIP rolls were at least 70℉; (3) After ARCI rolled the RapidGRIP
out on the roof, it then failed to protect its work in progress by covering the
RapidGRIP with the top ply of roofing material before leaving its work overnight,
thereby allowing the rolls that it installed each day to be exposed to the weather; (4)
24
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing Union
Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995)).
19
ARCI failed to seal the roof in various places before leaving work each day, creating
another potential source of moisture that could interfere with the RapidGRIP’s
ability to bond to the other plies of roofing material used to build the roofs; and (5)
ARCI failed to store the RapidGRIP to protect it from the effects of the weather and
from sunlight before installing it. With respect to using a weighted roller, there is
testimony in the record that shows that ARCI failed to use a weighted roller.
RapidGRIP’s label recommends that to achieve best results, it highly recommended
rolling the RapidGRIP with a weighted roller. ARCI presented testimony showing
that it customarily used four-pound brooms to press the roofing membrane into the
roofing ply the membrane covered to make the plies contact each other, and that it
followed that practice at Sunningdale. According to Jody, using brooms in the
manner that ARCI uses them when building modified-bitumen roofs is an acceptable
practice. He explained that U.S. Ply’s application procedures recommend but do not
require the use of weighted rollers. The testimony from the trial shows that ARCI
viewed the statement on RapidGRIP’s label about using a weighted roller as a
recommendation, not as a requirement. Given the label and the testimony in the
record, the trial court could have reasonably concluded that the use of weighed
rollers was not required by the label, or that ARCI’s failure to use a weighted roller
did not play a substantial role in causing the RapidGRIP to fail.
20
ARCI also disputed U.S. Ply’s claim that it installed the RapidGRIP under
weather conditions inconsistent with RapidGRIP’s label. During trial, ARCI relied
on weather records to establish what the ambient air temperatures were when it
installed the rolls of RapidGRIP at Sunningdale. The weather records in evidence
cover the months of January through March 2013. The temperatures recorded are
based on temperatures measured at an airport about 16 miles from Sunningdale.
Based on these records, Jody testified that ARCI never installed the RapidGRIP
when the ambient air temperatures were below 50℉ or when the rolls were not at
least 70℉. Jody’s son, Marshall Born, also addressed whether ARCI installed the
RapidGRIP under conditions inconsistent with those on the product’s label. Marshall
was ARCI’s construction supervisor for ARCI’s project at Sunningdale. He testified
that ARCI’s job foremen were familiar with the temperatures in which RapidGRIP
should be installed. Marshall testified that ARCI’s crews did not “work or install
anything under those temperatures.” Victor Robles, the ARCI foreman who
supervised the crew that built the roof on building two, also testified in the trial.
According to Victor, his crew installed the RapidGRIP when the air was at least 70℉
on the roof. 25 Hughes and Jody testified that the temperatures on a building’s roof is
25
The ARCI foreman in charge of installing the roof on apartment building
one, Toro Mendoza, did not testify in the trial. Marshall explained that he had known
Mendoza for over twenty years, that Mendoza left ARCI shortly after he finished
21
typically around 25% higher than the temperature when measured from the ground.
We conclude the record contains conflicting evidence about whether ARCI installed
the RapidGRIP at temperatures outside the temperatures found on the product’s
label. Nevertheless, the great weight and preponderance of the evidence does not
show that ARCI installed the RapidGRIP when it was less than 50℉ as claimed by
U.S. Ply.
U.S. Ply also points to testimony and other evidence before the trial court that
is critical of ARCI’s workmanship. It relies on this evidence to support its claim that
the tests on the leftover roll were unreliable or that they the trial court gave the tests
entirely too much weight. U.S. Ply’s brief, however, fails to address the evidence in
the record that contradicts the evidence on which it relies. The record includes
testimony disputing U.S. Ply’s claim that ARCI failed to properly store U.S. Ply’s
roofing materials before installing them on the roofs. For example, Victor testified
that during the construction process, ARCI stored and covered the RapidGRIP inside
a garage at night. The instructions accompanying RapidGRIP state the product “must
be covered and not left exposed for more than 90 days.” There is no evidence in the
record showing that ARCI exposed the RapidGRIP to the weather or to the effects
working on building one at Sunningdale, and that Mendoza left because he had
“personal legal issues” and “personal stuff going on.”
22
of the sun for ninety days, and no evidence that the product was left exposed to any
extreme heat or cold. Generally, the testimony before the trial court shows that when
using the RapidGRIP, ARCI’s crews took the rolls out of the boxes they came in
shortly before laying one or more rolls out on the roof where those rolls were to be
installed. After removing a roll from a box, members of ARCI’s crew laid the roll
out to allow it to warm for a short period of time, less than an hour, before installing
it over the bottom ply on the modified-bitumen roofs.
The record also contains evidence disputing U.S. Ply’s claims that various
issues with ARCI’s workmanship explained why the RapidGRIP failed. ARCI’s
roofing expert, Hughes, explained that all but one of the deficiencies Hoecherl
pointed out in his February 2013 report could be explained by the fact Hoecherl
inspected the roofs before ARCI finished them. Hughes characterized most of the
items Hoecherl criticized about the roofs as consisting of incomplete work, not poor
workmanship. According to Hughes, ARCI’s work at Sunningdale “met the standard
of care and responsibilities for a roofing contractor within the industry.”
Marshall also address whether ARCI left its work in progress under conditions
that allowed moisture to penetrate the roofs. According to Marshall, ARCI did not
leave the roofs overnight without first sealing the roofs’ seams. While Marshall
acknowledged that Hoecherl’s photos show some areas where the roofs’ seams were
23
not sealed, there is no testimony from any of U.S. Ply’s experts showing that
moisture penetrated the RapidGRIP and caused the RapidGRIP’s failure in these
areas or any others. Instead, the testimony of U.S. Ply’s witnesses suggests that the
penetration of the RapidGRIP membrane with moisture could explain why the
RapidGRIP failed. The evidence before the trial court shows that ARCI presented
evidence disputing U.S. Ply’s theory that the presence of moisture below the
RapidGRIP explained why the RapidGRIP failed. Jody testified that when Hoecherl
was looking at the roofs, Hoecherl never told him that he found a place where
moisture had penetrated the roof. Additionally, Jody testified that none of the people
who inspected the roofs told him that the RapidGRIP failed because water penetrated
the RapidGRIP on the roofs. In his testimony, Hoecherl agreed that he never saw
any evidence where water migrated below the RapidGRIP.26 Under the
26
We note that Hoecherl stated that the absence of moisture does not show
that no water entered the roof because water evaporates. Yet Hoecherl couched his
testimony as problems that “could cause” a roof to fail and he never stated that, in
his opinion, water penetrated the roofs and explained why the RapidGRIP
malfunctioned. A letter that BES sent to the owner’s architect in late-May 2013,
which was signed by Jerry Abendroth, who is the partner in charge of the
investigation BES was hired to do at Sunningdale, states that “[s]ince BES was not
involved during the installation of the roof system, we are unable to definitively
determine the cause or extent of the un-adhered roof membrane.” This letter was
also admitted into evidence during the trial.
24
circumstances, the trial court could have concluded that water penetration either did
not occur or was not a substantial cause for the RapidGRIP’s malfunction.
We conclude the record contains conflicting evidence about whether ARCI’s
storage, workmanship, or installation errors caused the roofs to fail.27 In a case tried
to the bench, the trial court acts as the factfinder and determines what testimony it
finds credible.28 It also weighs the relevant evidence when resolving the contested
issues of fact in a trial. 29 On this record, we conclude the trial court could have
reasonably rejected U.S. Ply’s claims that the RapidGRIP malfunctioned because
ARCI failed to store or install it properly. We further conclude that legally and
factually sufficient evidence supports the trial court’s findings on ARCI’s breach of
express warranty claims. Because we have found the record supports the trial court’s
verdict on ARCI’s breach of express warranty claims, we need not address whether
27
See City of Keller, 168 S.W.3d at 814 (explaining that under a legal
sufficiency review, the appellate court cannot disregard evidence that would allow
the factfinder to make only one inference).
28
See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998)
(explaining that under a factual sufficiency review, the appeals court cannot
substitute its conclusion for that of the factfinder when the factfinder’s conclusion is
supported by the inferences reasonably available from the evidence admitted in the
trial).
29
Id.
25
the evidence also supports the judgment on its breach of implied warranty and DTPA
claims. 30 For these reasons, we overrule U.S. Ply’s first, sixth, and seventh issues.
Damages
In issue eight, U.S. Ply argues the evidence does not support the trial court’s
conclusion that ARCI was entitled to damages for replacing the roof on building
one. 31 According to U.S. Ply, because it was willing to guarantee the original roof
on building one, the expenses ARCI incurred to replace it were unnecessary. In
response, ARCI argues it did not replace the roof on building one, but instead
repaired the roof by adding additional layers of roofing material over it based on the
repair method recommended to the project’s owner by BES.
The evidence admitted in the trial shows that BES, who was hired by
Sunningdale’s architect, recommended that ARCI repair the roof on building one by
“[overlaying it] with a new two-ply modified bitumen roof system.” 32 Steve Kratky,
30
See Tex. R. App. P. 47.1.
31
In its appeal, ARCI has not disputed the damages the trial court awarded to
compensate ARCI for repairing the roof on building two. In closing argument, U.S.
Ply’s attorney conceded that U.S. Ply owed ARCI for those repairs.
32
The recommendation to use an overlay repair on the roof came from Kevin
Palma and Jerry Abendroth. Abendroth testified in the trial that he helped start BES,
and the letter he signed shows that he was the project manager for BES for the
evaluation the company did on the roofs at Sunningdale.
26
a Construction Supervisors’ employee, was involved in the discussions that occurred
between ARCI and Construction Supervisors about the repairs needed on building
one. During the trial, Kratky testified that ARCI repaired that roof by overlaying the
existing roof system with other plies of material that are used to build modified-
bitumen roofs. While U.S. Ply misstates the evidence in claiming the roof was
replaced, we nonetheless understand its argument to assert that the cost ARCI
incurred to repair the roof on building one was unnecessary because U.S. Ply was
willing to guarantee it despite the problems BES and ARCI observed with the roof
ARCI installed on building one.33
The premise of U.S. Ply’s argument is that ARCI acted unreasonably by
rejecting its offer to issue a guarantee on the roof. The language in a sample
guarantee issued by U.S. Ply for roofs is among the exhibits admitted in the trial. Its
terms are relevant to evaluating whether ARCI acted reasonably when it rejected
U.S. Ply’s offer to guarantee the roof on building one. The terms of U.S. Ply’s
guarantee reveal that the guarantee, had one been issued, would have covered only
nine designated risks relevant to problems with roofs while excluding eleven others.
33
See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (“Appellate briefs
are to be construed reasonably, yet liberally, so that the right to appellate review is
not lost by waiver.”).
27
Additionally, the terms of the guarantee extend only to the roof’s “original owner.”
There is no testimony in the record showing that Sunningdale’s owner agreed to
accept U.S. Ply’s offer. Thus, the guarantee, even had ARCI agreed to it, would not
have protected ARCI from the claims that it breached its subcontract with
Construction Supervisors by building a roof that did not fully comply with it contract
with Construction Supervisors.
The fact the proposed guarantee would include exclusions while covering
only certain risks further supports the trial court’s implied finding that ARCI did not
act unreasonably when it rejected U.S. Ply’s proposal to accept the guarantee in lieu
of filing suit. Under Texas law, a plaintiff is duty-bound to mitigate any damages it
may suffer, but the plaintiff need not sacrifice its own contract rights in doing so.34
We note that when the defendant claims the plaintiff failed to mitigate damages, the
defendant bears the burden of proving that claim. 35 On this record, as a reasonable
finder of fact, the trial court could have decided that U.S. Ply failed to carry its
34
See Tex. Gas Expl. Corp. v. Broughton Offshore Ltd. II, 790 S.W.2d 781,
789 (Tex. App.—Houston [14th Dist.] 1990, no writ); Fid. & Deposit Co. of Md. v.
Stool, 607 S.W.2d 17, 25 (Tex. Civ. App.—Tyler 1980, no writ); 49 DAVID R. DOW
& CRAIG SMYSER, TEXAS PRACTICE: CONTRACT LAW § 10.6 (last updated Sept.
2018). We note that U.S. Ply’s pleadings include a claim that ARCI failed to
reasonably mitigate its damages.
35
See Kartsotis v. Bloch, 503 S.W.3d 506, 521 (Tex. App.—Dallas 2016, pet.
denied).
28
burden in proving that ARCI acted unreasonably by rejecting the proposed
guarantee. 36 We overrule U.S. Ply’s eighth issue.
2. Did ARCI’s alleged failure to follow U.S. Ply’s instructions
and industry standards when installing the RapidGRIP waive
its right to recover on its warranty claims?
In issue nine, U.S. Ply argues that by installing the RapidGRIP incorrectly,
ARCI voided any warranties that might apply to installing the roof on building one.
Even when we construe U.S. Ply’s argument liberally, however, U.S. Ply’s argument
relies on ARCI’s conduct as the basis for any waiver. U.S. Ply does not rely on any
waiver language on the product’s label or other information that U.S. Ply provided
ARCI in support of issue nine.37
Under Texas law, a plaintiff’s conduct is not a defense to a breach-of-warranty
action. 38 Instead, the plaintiff’s conduct, including any claims alleging the plaintiff
36
See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (explaining
that the “matter of law” legal-sufficiency standard applies when the factfinder’s
adverse finding is one on which the party bore the burden of proof).
37
See Perry, 272 S.W.3d at 587 (requiring briefs to be construed reasonably,
but liberally); see also Tex. Bus. & Com. Code Ann. § 2.313(a)(2) (indicating that
the manufacturer’s description of its goods creates an express warranty when the
description forms a basis of the parties’ bargain).
38
See Signal Oil & Gas Co. v. Universal Oil Prods., 572 S.W.2d 320, 329
(Tex. 1978) (stating that “[t]he seller should only be held liable for that portion of
the consequential damages caused by the breach of implied warranty”); Indust-Ri-
29
installed the product incorrectly, are matters that are relevant to whether the product
caused the plaintiff’s damages.39 We have already explained that the evidence
allowed the trial court to conclude that ARCI did not materially violate the
instructions that apply to installing the RapidGRIP in resolving issues one, six,
seven, and eight. 40 For those same reasons, we reject the arguments that U.S. Ply
uses to support issue nine.
In this case, the record contains conflicting testimony and evidence about
whether ARCI installed RapidGRIP correctly and whether it applied the product in
a manner consistent with the product’s instructions and industry standards. In bench
trials, the trial court determines the weight to give any testimony and resolves
conflicts and inconsistencies in the testimony. 41 The evidence allowed the trial court
to conclude that the RapidGRIP malfunctioned even though ARCI stored and
installed it properly. We overrule U.S. Ply’s ninth issue.
Chem Lab., Inc. v. Par-Pak Co., Inc., 602 S.W.2d 282, 290 (Tex. App.—Dallas
1980, no writ) (extending the holding in Signal Oil to an express warranty claim).
39
See Par-Pak Co., 602 S.W.2d at 290.
40
See City of Keller, 168 S.W.3d at 814; Mar. Overseas Corp., 971 S.W.2d at
407.
41
See McGalliard, 722 S.W.2d at 697; Woods v. Woods, 193 S.W.3d 720, 726
(Tex. App.—Beaumont 2006, pet. denied).
30
3. Was the testimony of Bradley Hughes, ARCI’s roofing expert,
properly admitted and does it provide reliable support for the verdict?
In issues two through five, U.S. Ply argues that Hughes’ testimony was
inadmissible for four reasons: (1) ARCI did not name him by the stated deadlines in
the trial court’s docket-control order; (2) he was not qualified by virtue of his training
or experience to express opinions about RapidGRIP; (3) he was not qualified to
express opinions about what caused the RapidGRIP to fail; and (4) his opinions were
speculative because they did not have a sufficient foundation. We address these
arguments in order.
Before trial, the trial court held a hearing to consider U.S. Ply’s objections
claiming that Hughes should not be allowed to testify in the case. In the hearing,
U.S. Ply argued that the trial court should strike Hughes as a witness because ARCI
failed to comply with the docket-control order controlling the discovery deadlines
that applied to the case. During the hearing, ARCI argued the order required ARCI
to produce Hughes’ report no later than by mid-June 2016, and that it produced his
report in late-January 2016, well before that docket-control order’s deadline. When
ruling on U.S. Ply’s motion, the trial court advised the parties the court had decided
to deny the motion.42
42
The clerk’s record contains an order granting U.S. Ply’s motion to exclude
Hughes as a witness, but the order contradicts the ruling the trial court made before
31
The record shows the trial court allowed Hughes to testify in the trial. 43 In
late-May 2015, ARCI designated Hughes as an expert but did not produce his report.
In late-January 2016, ARCI amended its designation of experts and produced a
report, signed by Hughes. In an amended docket-control order, signed in late-March
2016, the trial court signed a new docket-control order, ordering discovery to
conclude by September 12, 2016. The amended order does not specify the date by
which the parties were to produce reports from their experts. Instead, the amended
order provides: “If no date or limitation on discovery is given below, the item is
governed by the Texas Rules of Civil Procedure.”
Given this language, we look to the rules in the Texas Rules of Civil Procedure
to determine whether ARCI violated the docket-control order that applies to
resolving U.S. Ply’s complaint that the trial court failed to enforce the deadlines that
the trial began. U.S. Ply does not rely on the signed order in its brief. Nevertheless,
the hearing shows the trial court intended to sign an order overruling U.S. Ply’s
motion as the trial court stated that it would “allow the testimony of Mr. Hughes and
overrule the objections of U.S. Ply. So I’m signing that order now.” We conclude
the trial court signed the order granting U.S. Ply’s motion by mistake.
43
During the hearing, U.S. Ply complained that ARCI failed to designate
Hughes until March 2015 and that ARCI did not immediately produce his report at
that time along with all information he relied on to form his opinions. After
presenting the court with these complaints, U.S. Ply’s attorney advised the court that
Hughes should be excluded because he “was not timely designated as an expert[.]”
32
apply to Hughes’ report. Under the Rules, ARCI needed to provide U.S. Ply with
Hughes’ report at least ninety days before September 12, 2016, the date on which
the discovery period ended.44 Thus, ARCI was required to produce Hughes’ report
by mid-June 2016. 45 The record shows that ARCI designated and produced Hughes’
report more than four months before that deadline. We conclude the trial court
properly rejected U.S. Ply’s argument that ARCI failed to produce Hughes’ report
by the required deadline. We overrule U.S. Ply’s second issue.
In issues three and four, U.S. Ply argues that Hughes lacked the qualifications
needed to express reliable opinions explaining why the roofs installed at
Sunningdale failed. In issue five, U.S. Ply contends Hughes based his opinions on
unreliable tests performed on the leftover roll. According to U.S. Ply, the evidence
shows that the leftover roll could not be subjected to testing capable of yielding
reliable results because it was not in the condition it was in when it was delivered to
Sunningdale. U.S. Ply concludes that because Hughes based his opinions almost
44
See Tex. R. Civ. P. 195.2(a) (providing that unless the trial court orders
otherwise, the parties must furnish the information required under Rule 194.2(f) 90
days before the end of the discovery period); id. 194.2(f) (providing that upon
request, the party from whom disclosure has been requested must disclose
information about the identity and the substance of the witnesses the responding
party retained to testify as experts).
45
Id.
33
entirely on the tests done on the leftover roll, his opinions are without foundation,
making them speculative and unreliable.
An abuse-of-discretion standard applies to an appellate court’s review of a
trial court’s decision admitting expert testimony. 46 Courts determine whether
evidence is reliable from all the evidence.47 Expert testimony is admissible when (1)
the expert is qualified, and (2) the testimony is relevant and based on a reliable
foundation.48 “‘If scientific, technical, or other specialized knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience, training, or education may
testify thereto in the form of an opinion or otherwise.’” 49 “‘If the expert’s scientific
evidence is not reliable, it is not evidence.’” 50 If the opinion the expert expressed at
trial “is based on assumed facts that vary materially from the actual, undisputed facts,
46
Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 716 (Tex. 2016);
Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998).
47
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997).
48
See Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex.
2006).
49
Id. (quoting Tex. R. Evid. 702); see also Daubert v. Merrell Dow Pharms.,
Inc., 509 U.S. 579, 588-89 (1993).
50
Mendez, 204 S.W.3d at 800 (quoting Havner, 953 S.W.2d at 713).
34
the opinion is without probative value and cannot support a verdict or judgment.”51
That said, courts do not determine whether an expert’s opinion is reliable by deciding
whether the expert’s opinion appears to be correct.52 Rather, the factors courts use
when determining if the expert’s opinions are reliable look to the reliability of the
method and analysis the expert used in forming the opinions the expert expressed in
the trial.53
The qualifications Hughes possessed as a roofing expert are primarily those
that are in his resume. Hughes’ resume shows that he is licensed in the State of
California as a general contractor and as a roofing contractor. He has more than thirty
years of experience in the construction industry, and his experience includes
supervising the construction of composite shingle, built-up, and other types of roofs
that are installed on apartments, condominiums, and commercial buildings. Hughes’
testimony shows that he also has experience with installing modified-bitumen roofs.
Hughes also described his experience in the roofing industry when he testified.
During the trial, Hughes testified that for the past eighteen years he has worked for
51
Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); see
also Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 591 (Tex. 1999).
52
See Tamez, 206 S.W.3d at 581.
53
Id.
35
Bert Howe & Associates. According to Hughes, his day-to-day work for Bert Howe
involves inspecting roofs, writing reports about his findings, analyzing the
performance of roofs, and writing specifications for repairs, when required. Hughes
testified that in the past eighteen years, he has inspected over 20,000 roofs. Hughes
explained that before working for Bert Howe, he worked more than twenty years
“within the roofing industry as a tradesman installing, repairing, [and] rehabilitating
roofing systems . . . , which are inherent to modified bitumen applications such as
[the] case [before the court.]” He explained that his experience installing roofs
includes installing the type of modified-bitumen systems used at Sunningdale. He
has also inspected modified-bitumen roofs in his work with Bert Howe, including
taking samples from the existing roof and having those samples tested. Although
Hughes represented that he had a great deal of experience with roofs, he also agreed
that he was not a scientist, a chemist, or certified to conduct tests on roofing material,
which is work done by labs.
Hughes’ testimony reveals that he reviewed twelve categories of material
while investigating the failure of the RapidGRIP used at Sunningdale. He did not
inspect the roofs because they were repaired before he was hired. The information
he reviewed included the instructions issued by U.S. Ply about RapidGRIP and how
it is installed. He also reviewed testing and materials standards referenced on
36
RapidGRIP’s label, industry standards for installing low-sloped-asphalt roofs,
construction records associated with ARCI’s work, weather records for the days
ARCI installed the RapidGRIP, construction and inspection photographs taken of
the roofs, and reports issued by BES about its observations and findings on the roofs.
Hughes agreed that he relied heavily on U.S. Ply’s and Mid-States Asphalt’s testing
of the leftover roll when reaching the opinions he expressed at trial. 54 He also agreed
he has no experience in designing asphalt-roofing products, that he did not have an
independent lab perform tests on any samples taken from Sunningdale’s roofs, and
that he is not a chemist. Hughes stated that he is qualified to express opinions about
the performance of self-adhering membranes that contractors install on roofs from
the perspective of a roofing consultant, inspector, and contractor.
As we understand Hughes’ testimony, Hughes thought that the RapidGRIP
ARCI used on the project failed to perform as a high tack, self-adhering membrane
that could be applied without using supplemental heat. He also expressed the opinion
that any errors ARCI made when installing the roofs did not contribute to causing
the RapidGRIP ARCI installed to fail.
54
Hughes stated that he understood the leftover roll had been stored properly
before U.S. Ply and Mid-States Asphalt tested it. He also agreed that he had no
personal knowledge about how the roll was stored to protect it from the elements
before anyone tested it. Hughes acknowledged that the adhesive qualities of the roll
could degrade if the roll was not stored properly.
37
U.S Ply contends the trial court should not have found that Hughes was
qualified to testify as an expert. It argues that ARCI failed to show that Hughes had
experience or expertise in manufacturing, designing, or marketing RapidGRIP. That
said, ARCI sought to prove that the RapidGRIP malfunctioned because the
RapidGRIP it purchased did not have the qualities represented on the label even
when applied in a manner consistent with industry practices and the instructions on
the product’s label. Hughes did not testify the formula U.S. Ply used for RapidGRIP
was incapable of producing a membrane consistent with the qualities stated on the
label. Essentially, Hughes’ testimony shows that he thought the problem with the
RapidGRIP ARCI acquired occurred before they were delivered to Sunningdale
because ARCI stored the rolls properly, installed the rolls properly, and that
nonetheless, the RapidGRIP failed on both roofs.
As to the trial court’s decision to allow Hughes to testify as a roofing expert,
the record shows that Hughes has much more expertise evaluating roofs, including
the type of roofs at issue here, than an ordinary factfinder. He has also evaluated
many problems with roofs, and in his job, companies rely on him to determine why
roofs fail and how they should be fixed. Under the Texas Rules of Evidence,
opinions offered by witnesses who have “technical[] or other specialized
knowledge” are admissible if the opinion assists the factfinder in deciding the issues
38
in dispute.55 Had ARCI claimed the formula U.S. Ply used to create RapidGRIP
would not produce a high-tack, self-adhering membrane, a scientist or
manufacturing witness familiar with the manufacture of roofing membranes might
have been an important witness for that trial. That was not, however, the theory
ARCI advanced in this trial. Instead, ARCI sought to prove the RapidGRIP that it
purchased malfunctioned in ways that were not consistent with the qualities stated
on the product’s label.
Given Hughes’ experience in the roofing industry, we conclude the trial court
could reasonably have found him qualified to express opinions about whether the
product malfunctioned. 56 While Hughes had no formal training in manufacturing or
designing roof membranes, experts need not always be formally trained to possess
information that is helpful to triers of fact. For instance, in discussing qualifications
of experts, the Texas Supreme Court explained that an “experienced car mechanic’s
diagnosis of problems with a car’s performance may well be relevant and reliable
without resort to engineering principles.”57
55
Tex. R. Evid. 702.
56
See Gammill, 972 S.W.2d at 722 (noting that “there are many instances
when the relevance and reliability of an expert witness’s testimony are shown by the
witness’s skill and experience”).
57
Id.
39
The trial court’s conclusion that Hughes followed a proper methodology to
arrive at his opinions is also reasonable and supported by the record. Hughes’
testimony reveals he is familiar with industry practices for installing modified-
bitumen roofs. His testimony shows that he is familiar with the manner and
conditions under which products like RapidGRIP are used. His testimony shows that
he considered whether the product was stored or installed improperly and that he
considered the test results on the leftover roll. His conclusion that the RapidGRIP
malfunctioned as a self-adhering membrane at the temperatures it which it was
installed represents a reasoned opinion reached after considering the available
evidence. We conclude that Hughes was qualified to express the opinions he
expressed that U.S. Ply has challenged in the appeal. We overrule issue three.
In issues four and five, U.S. Ply criticizes the methodology Hughes followed
in arriving at his opinions. According to U.S. Ply, Hughes ignored uncontroverted
testimony showing that the leftover roll was not in the same condition it was in when
it was delivered to Sunningdale. Also, U.S. Ply suggests that the methodology
Hughes should have followed required him to submit samples of the RapidGRIP to
an independent lab. According to U.S. Ply, testing by an independent lab is normally
performed to determine what caused a roof to fail. U.S. Ply concludes that errors in
Hughes’ methodology makes his opinions speculative and unreliable.
40
The Texas Rules of Evidence allow experts to base opinions “on facts or data
in the case that the expert has been made aware of, reviewed, or personally
observed.”58 The testimony about how the leftover roll was stored before U.S. Ply
and Mid-States Asphalt tested it was largely circumstantial. There is, however, direct
testimony showing that Marshall acquired the leftover roll from ARCI employees
who took it from one of the roofs at Sunningdale. When the partial roll arrived at
ARCI’s offices, it was not in a box. There is, however, testimony showing that U.S.
Ply sent the leftover roll to Mid-States Asphalt in a box. Other than this testimony,
the evidence is circumstantial about whether ARCI stored the leftover roll properly
before ARCI’s employees gave it to Marshall. That said, the testimony does not
show the leftover roll was ever exposed to extreme cold or heat or that the leftover
roll was exposed to weather, including sunlight, for more than 90 days before the
leftover roll was tested.
There is also no testimony showing that Mid-States Asphalt considered its
tests unreliable, that Mid-States Asphalt considered its testing insufficient without
further testing by an independent lab, or that the leftover roll could not be tested to
determine whether the RapidGRIP ARCI purchased could be applied without using
a torch. The fact that Mid-States Asphalt offered to replace the product after
58
Tex. R. Evid. 703.
41
completing its tests is circumstantial evidence supporting the trial court’s inference
that Mid-States Asphalt concluded the roll did not have the qualities of tackiness
stated on the product’s label. Based on the direct and circumstantial evidence, and
because the product’s label states that the product should not be “left exposed for
more than 90 days[,]” the trial court could have reasonably rejected U.S. Ply’s
arguments that U.S. Ply’s and Mid-States Asphalt’s tests were not reliable or
relevant to proving what condition the rolls were in when ARCI acquired them.
Next, we turn to U.S. Ply’s claim that Hughes’ opinions were unreliable
because he failed to have samples of the RapidGRIP tested by an independent lab.
There is no testimony in the record showing what constitutes a normal investigation
when evaluating what caused a modified-bitumen roof (or any other type of roof) to
fail. There is also nothing in the record showing that the proper methodology for
determining the cause of a roof’s failure requires testing beyond the testing done by
the entities that manufactured and sold the roofing products used in building the roof.
Mid-States Asphalt and U.S. Ply both relied on their testing to extend remedies for
the RapidGRIP’s failure without submitting the leftover roll or other samples of the
RapidGRIP for further testing by an independent lab. Moreover, before extending
their respective offers, neither U.S. Ply, nor Mid-States Asphalt, suggested that more
testing was needed by an independent lab.
42
Finally, the opinions Hughes expressed are supported by testimony that is in
the record explaining how ARCI built the roofs. ARCI has a long track record of
successfully building modified-bitumen roofs using membranes like RapidGRIP.
The tests on the leftover roll were done before the useful life for the product, as
shown on the product’s label, expired. This factor also tends to support the trial
court’s implied findings. While the record contains conflicting evidence about how
ARCI stored and installed the roofing materials before it used them, Hughes was
entitled to assume that ARCI stored and installed the RapidGRIP properly when
forming his opinions given the evidence presented in the trial. We conclude the trial
court did not rely entirely on Hughes’ credentials when it found Hughes gave
credible and reliable testimony in the trial.
To summarize our conclusions, Hughes’ opinions were not speculative,
conclusory, or without a sufficient foundation to tie his opinions to the relevant facts
of the case. We hold the trial court did not err by exercising its discretion to allow
Hughes to testify or by finding that he gave credible and reliable opinions during the
trial. We overrule issues four and five.
4. Did U.S. Ply preserve its right to obtain the trial
court’s written findings to explain its verdict?
In issue ten, U.S. Ply asserts that given U.S. Ply’s request for findings, the
trial court erred by failing to provide the parties with written findings of fact and
43
conclusions of law. The record shows that U.S. Ply filed its request for findings
within twenty days of the date the trial court signed the judgment. We conclude that
U.S. Ply’s initial request for findings was timely. 59 Even so, U.S. Ply then failed to
file a notice of past due findings. A notice of past due findings is required when a
trial court has failed to comply with a party’s initial request for written findings.60 If
a party fails to file a notice of past due findings, it can no longer complain of the trial
court’s failure to provide the parties with written findings. 61 We conclude that U.S.
Ply waived its right to complain about the trial court’s failure to reduce its findings
to writing. We overrule U.S. Ply’s tenth issue.
Conclusion
Having carefully considered each of U.S. Ply’s issues, we affirm the trial
court’s judgment.
AFFIRMED.
59
See Tex. R. Civ. P. 296, 297.
60
See id. 297.
61
See Ad Villarai, LLC, 519 S.W.3d at 137 (Tex. 2017); Las Vegas Pecan &
Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 255-56 (Tex. 1984).
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_________________________
HOLLIS HORTON
Justice
Submitted on December 19, 2018
Opinion Delivered April 25, 2019
Before McKeithen, C.J., Horton and Johnson, JJ.
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