Hands of Healing Residential Treatment Center, Inc. v. John Havenar

Opinion issued August 13, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-01064-CV
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HANDS OF HEALING RESIDENTIAL TREATMENT CENTER, INC.,
Appellant
V.
JOHN HAVENAR, Appellee
On Appeal from the County Civil Court at Law No. 2
Harris County, Texas
Trial Court Case No. 974802
MEMORANDUM OPINION
Appellant, Hands of Healing Residential Treatment Center, Inc. (“HOH”),
challenges the judgment of possession of real property, entered after a trial to the
county court at law, in favor of appellee, John Havenar, in his forcible-detainer
action against HOH. In six issues, HOH contends that the county court lacked
jurisdiction to review Havenar’s claims, it erred in admitting expert testimony, and
the evidence is legally and factually insufficient to support its fact findings.
We vacate and dismiss in part, and affirm in part.
Background
Havenar filed, in a Harris County justice court, a sworn complaint, seeking
to evict HOH and all occupants from a house in Baytown (the “property”). In his
complaint, Havenar, the owner of the property, asserted that HOH, the tenant under
a lease executed on March 11, 2009, “should be evicted” because it had defaulted
on the lease by failing to carry the required insurance coverage and was conducting
professional counseling at the property in violation of the Certificate of
Occupancy. The justice court entered a judgment of possession in favor of HOH,
and Havenar appealed to the county court for a trial de novo.
HOH, a non-profit organization licensed as a General Residential Operation
for the State of Texas, answered and filed a counter-petition, alleging retaliation
and tortious interference with contract. It was operating at the property under a
contract with the Texas Department of Family and Protective Services to care for
disadvantaged and emotionally disturbed children. HOH explained that any
change in location could cause it to lose its contract, and it noted that Havenar had
worked as a counselor for HOH. After HOH terminated his employment, Havenar
2
began conducting unreasonable inspections of the property, looking for violations
to evict HOH. The county court granted injunctive relief, restricting Havenar’s
access to the property, and it dismissed HOH’s counterclaims for lack of
jurisdiction.
Havenar then filed an amended petition, alleging that on January 10, 2010,
while HOH was in possession of the property, “a pipe had burst due to a freeze,”
causing extensive damage to the property. And, under the terms of the lease, HOH
was responsible for repairing the damage. Although HOH’s insurer had estimated
the cost of the repairs to be approximately $74,000, HOH had made less than
$5,000 in repairs, “refused” to make all the necessary repairs, and failed to protect
against mold growth. Havenar asserted that Baytown’s ordinances prohibited any
“medical treatment, including counseling, from taking place on the property,” and
HOH had continued to counsel residents at the property. Havenar sought
possession of the property and attorney’s fees.
At trial, Havenar testified that in 1996, when he and his wife, Denise,
purchased the property, they had “replaced all the floorboards in the entire house,”
“re[done] the sheetrock and the flooring,” and replaced “every piece of trim.” He
explained that under the terms of the lease, he was responsible for any repairs to
the foundation, roof, and exterior walls and HOH was responsible for any repairs
to “everything else.” The county court admitted a copy of the lease into evidence.
3
In January 2010, when Havenar drove by the property, he saw a “huge
monument of ice” and “water cascading from the property.” He went inside the
house and saw water in the foyer, living room, and kitchen, and coming down the
ceilings from the sheetrock. He turned off the water and called the president of
HOH, Victor Weetly, who assured Havenar that HOH’s insurance would cover the
damage. In May 2010, when Havenar visited the property to inspect the repairs,
he noted that HOH had not removed any of the trim, but it had “cut around all the
trim,” cut pieces out of the sheetrock, and had just patched the holes with “piece[s]
of sheetrock” and caulk.
In August 2010, Havenar sent to HOH a list of “deficiencies,” noting that the
sheetrock repair to the ceilings and walls was “unacceptable” because it had not
been “taped, floated, and textured properly”; the kitchen ceiling had not been
repaired and mold was present; damaged insulation in the attic had not been
replaced; and the wood floors in the dining room, living room, and bedrooms had
not been appropriately refinished and had been inappropriately “patched.” Weetly
responded in an email, which the trial court admitted into evidence, that all the
repairs had been completed. However, in September 2010, Havenar discovered
that HOH’s insurer had denied coverage of the claim. And in December 2010,
when Havenar visited the property with his contractor, they discovered mold when
they “pulled a board away.” The trial court admitted into evidence a mold
4
inspection report from Mold Inspection Services, dated December 17, 2010. The
report details the presence in the property of “visible mold growth,” “water
damage,” “flooring material retaining moisture,” and “[a]ctively wet
materials . . . [on] walls resulting from the leak above in the attic.”
Denise testified about the renovations that she and Havenar had made to the
property and its condition prior to leasing it to HOH. And the trial court admitted
into evidence photographs of the property taken in early 2009, prior to HOH taking
possession. When Denise inspected the property in May 2010, after the repairs had
been completed by HOH, she noted that the repairs were “patchy,” meaning that
“little pieces” had been “cut out” of the sheetrock and wood floor. And she
asserted that HOH did not repair the property to the same condition it was in when
she and Havenar had leased it to HOH.
Tom McCartney, an adjuster with Vera Claim Incorporated, testified that
HOH’s insurer, Scottsdale Insurance Company, retained him to inspect the
damages to the property after the water pipe had burst. He noted that the property
is a 3000-square-foot “fourplex” that was constructed in 1948. McCartney
explained that when he inspected the property on January 18, 2010, he found
extensive “water damage from [a] freezing of pipes.” He noted that a water line in
the attic had frozen and burst, a “continuous rush of water” had run into a
bedroom, and the water had “spread out” along the second floor and “leaked down
5
to the first floor.” The drywall on the ceilings and walls had “failed,” ceilings had
“fallen,” and the wood flooring and subflooring were “cupping.” McCartney
further noted that because water had been standing on the floors for seven days,
they were “non-salvageable.” He estimated the value of the loss to the property to
be $74,000.00, and the county court admitted his detailed estimate into evidence.
Mervin Elmore, a general contractor, testified that on March 28, 2012, he
inspected the property with Havenar. He noted that although he is not a licensed
contractor or a professional inspector, he has been in the remodeling business for
forty-three years. Elmore determined that the wood flooring was warped,
insulation had not been replaced, and the sheetrock had been visibly patched.
Weetly testified that at the time the water pipe burst, HOH had possession of
the property, but was not yet occupying it. He admitted that HOH was
“responsible for all of the repairs to the building[,] other than the exterior and
roof.” And when its insurer denied coverage, HOH hired Jose Rodriguez of
Tampico Remodeling to do the repairs, but he did not know whether Ramirez was
licensed or insured. Weetly explained that he and Rodriguez had gone through the
property and determined the types of repairs needed. However, regarding the
flooring, there was only “one plank” of the wood floor that was “buckling,” and it
was replaced. He acknowledged that HOH “didn’t do anything with the floors.”
Weetly noted that when Havenar had visited the property, after the repairs were
6
completed, he said that everything “looked good.” The repairs, completed in April
2010, cost $4,300. And the county court admitted into evidence Rodriguez’s
invoice, dated March 17, 2010, which lists each of the repairs made: “Fix
plumbing leak in attic. Remove damaged sheetrock and replace. Treat moisture.
Tape, float, [and] texture. Paint damaged areas only. Replace damaged laminate.
Replace bathroom [and] closet doors.” The county court also admitted into
evidence photographs taken of the property after the repairs.
Terry Hawkins, a property manager and experienced construction
supervisor, testified that HOH retained him to inspect the property. On April 21,
2011, he “walked the house,” took pictures, and documented his findings, which
were admitted into evidence at trial. He concluded that the repairs were
“sufficient,” and he attributed the defects at issue to the age of the property.
After the county court found that HOH had failed to properly and adequately
make repairs and maintain the premises, it further found that HOH’s failures
constituted a breach of the lease agreement. It issued findings of fact and
conclusions of law, rendered judgment of possession in favor of Havenar, and
awarded him $21,000 in attorney’s fees. 1 On December 9, 2013, HOH vacated the
property, and the lease expired on its own terms on February 28, 2014.
1
HOH, at trial, stipulated to the amount of attorney’s fees to be awarded to Havenar
in the event that he prevailed.
7
Mootness
As a preliminary matter, Havenar argues that HOH’s appeal is moot
because the lease has expired. Appellate courts lack jurisdiction to decide moot
controversies and render advisory opinions. See Nat’l Collegiate Athletic Ass’n v.
Jones, 1 S.W.3d 83, 86 (Tex. 1999). A justiciable controversy between the parties
must exist at every stage of the legal proceedings, including the appeal, or the case
is moot. See Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). An appeal from a
forcible-detainer judgment becomes moot if the defendant is no longer in
possession of the property, unless it holds and asserts “a potentially meritorious
claim of right to current, actual possession.” Marshall v. Hous. Auth. of City of
San Antonio, 198 S.W.3d 782, 787 (Tex. 2006).
It is undisputed that HOH has vacated the premises, and its only claim to
possession would arise under the lease, which has expired. Because HOH does not
hold and assert “a potentially meritorious claim of right to current, actual
possession,” its appeal is moot as to the portion of the judgment awarding
possession of the premises to Havener. See id. (holding appeal in forcible detainer
action moot because lease expired and tenant presented no basis for claiming right
to possession after expiration date).
However, an entire case only becomes moot if a controversy ceases to exist
or the parties lack a legally cognizable interest in the outcome. See Allstate Ins. Co.
8
v. Hallman, 159 S.W.3d 640, 642 (Tex. 2005). Here, the county court’s judgment
requires HOH to pay Havenar’s attorney’s fees, and a dispute over attorney’s fees
is a live controversy that will keep the entire case from becoming moot. See
Briones v. Brazos Bend Villa Apartments, 438 S.W.3d 808, 813 (Tex. App.—
Houston [14th Dist.] 2014, no pet.).
A landlord who prevails in a forcible detainer action is entitled to recover
reasonable attorney’s fees from the tenant if the parties’ written lease entitles the
landlord to recover such fees. TEX. PROP. CODE ANN. § 24.006(b) (Vernon 2014);
see also TEX. R. CIV. P. 510.11 (providing attorney’s fees include those incurred in
both justice and county courts) (formerly Texas Rule of Civil Procedure 752).
Under the terms of the lease between Havenar and HOH, “[a]ny person who is a
prevailing party in any legal proceeding brought under or related to the transaction
described in this lease is entitled to recover prejudgment interest, reasonable
attorney’s fees, and all other costs of litigation from the nonprevailing party.”
Thus, whether Havenar is “the prevailing party” for purposes of recovering
attorney’s fees remains a live controversy. See Daftary v. Preston Market Square,
Ltd., 399 S.W.3d 708, 711–12 (Tex. App.—Dallas 2011, pet. dism’d).
Jurisdiction
In its first issue, HOH argues that the county court “did not have jurisdiction
to review” Havenar’s claims concerning HOH’s failure to repair the property
9
because they “were not pled and adjudicated at the justice court level.” HOH
asserts that Havenar, in his original petition in the justice court, sought to evict it
for failing to maintain certain insurance coverage. And the justice court ruled that
the alleged violations did not constitute a material breach of the lease. Havenar
then, in his first amended petition in the county court, sought to evict HOH for
failing to repair damage to the property from a burst water pipe.
Justice courts have original jurisdiction over forcible-detainer suits. See
TEX. PROP. CODE ANN. § 24.004 (Vernon 2014); see also TEX. GOV’T CODE ANN.
§ 27.031(a)(2) (Vernon 2004). A party who is dissatisfied with a justice-court
judgment in such a suit may appeal to a county court for a trial de novo. See TEX.
R. CIV. P. 510.9. It is well-settled that perfection of an appeal to a county court for
a trial de novo vacates and annuls the judgment of the justice court; the county
court does not review the justice court’s action. See Villalon v. Bank One, 176
S.W.3d 66, 69–70 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).
Pursuant to the law in effect at the time that the underlying suit was filed:
Either party may plead any new matter in the county or district
court which was not presented in the court below, but no new ground
of recovery shall be set up by the plaintiff, nor shall any set-off or
counterclaim be set up by the defendant which was not pleaded in the
court below. The pleading thereof shall be in writing and filed in the
cause before the parties have announced ready for trial.
TEX. R. CIV. P. 574a (repealed 2013). Thus, for purposes of an appeal from a
justice court, the parties could raise any “new matter” in the county court that was
10
not presented in the justice court, but they were prohibited from raising a “new
ground of recovery.” See id.; see, e.g., Berezoski v. Drake Dev. Co., No. 14-96-
00768-CV, 1997 WL 665886, at *2 (Tex. App.—Houston [14th Dist.] Oct. 23,
1997, no pet.) (mem. op., not designated for publication) (considering claim for
unpaid rents not raised in justice court). A “new ground of recovery” pertains to
an “allegation that serves as a basis for obtaining additional sums of money or
other forms of affirmative relief not asserted at the original trial.” Shedrock v.
Texas Dep’t of Pub. Safety, 699 S.W.2d 676, 678 (Tex. App.—San Antonio 1985,
no writ); see also McSpadden v. Eads, 163 S.W. 634, 634 (Tex. Civ. App.—
Amarillo 1914, no writ) (“Either party may plead any new matter on appeal to the
county court, though it was not presented in the justice court, so long as no new
cause of action is set up by such amended pleading.”).
In support its assertion that the county court “did not have jurisdiction to
hear claims and facts that were not alleged at the justice court level,” HOH relies
on Hong Kong Dev., Inc. v. Nguyen, 229 S.W.3d 415, 434 (Tex. App.—Houston
[1st Dist.] 2007, no pet.). In Nguyen, this Court explained that, in forcible-detainer
actions, justice and county courts lack jurisdiction to adjudicate claims beyond the
right to immediate possession. See id. (citing Krull v. Somoza, 879 S.W.2d 320,
322 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (holding damage claims
related to maintaining or obtaining possession of premises may be joined with
11
detainer action and litigated in county court; however, damages for other causes of
action (i.e., wrongful termination) not recoverable in forcible-detainer action)).
We held that the county court lacked jurisdiction to consider Nguyen’s tort claims
because none of them concerned the right to immediate possession, or constituted
an attempt to collect rent, and she did not expressly limit her damages to that
“suffered for withholding or defending possession of the premises during the
pendency of the appeal.” Id. at 435–36.
Here, in contrast, Havenar sought the same relief in both the justice and
county courts, i.e., immediate possession of the premises, based on a breach of the
lease, and his attorney’s fees. See TEX. R. CIV. P. 510.11; Nguyen, 229 S.W.3d at
434. He did not seek damages. Although Havenar amended his pleadings,
alleging additional violations of the lease, and presented new evidence in trial, he
did not assert a new ground of recovery in the county court. Shedrock, 699 S.W.2d
at 678. Accordingly, we hold that the county court had jurisdiction over Havenar’s
claims.
We overrule HOH’s first issue.
Sufficiency of the Evidence
In its fourth and fifth issues, HOH argues that the evidence is legally
insufficient to support the county court’s finding that it materially breached the
lease because Havenar presented “no evidence at trial to show that he was deprived
12
of any benefit he reasonably expected.” In its sixth issue, HOH argues that the
evidence is legally and factually insufficient to support certain specific fact
findings of the county court regarding a breach of the lease because the “majority
of the findings were supported by little if any admissible evidence at trial.”
In an appeal from a bench trial, the trial court’s findings of fact have the
same weight as a jury verdict. See Merry Homes, Inc. v. Chi Hung Luu, 312
S.W.3d 938, 943 (Tex. App.—Houston [1st Dist.] 2010, no pet.). When a
reporter’s record has been filed, findings of fact are not conclusive and are binding
only if they are supported by the evidence. See HTS Servs., Inc. v. Hallwood Realty
Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no
pet.). We review the sufficiency of the evidence supporting a trial court’s findings
of fact under the same standards applicable to a review of a jury’s verdict.
Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994).
When a party challenges legal sufficiency relative to an adverse finding on
which it did not bear the burden of proof, it must show that no evidence supports
the finding. See Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194,
215 (Tex. 2011). We will sustain a legal-sufficiency or “no-evidence” challenge if
the record shows one of the following: (1) a complete absence of evidence of a
vital fact, (2) rules of law or evidence bar the court from giving weight to the only
evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact
13
is no more than a scintilla, or (4) the evidence establishes conclusively the opposite
of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). In
conducting a legal-sufficiency review, a “court must consider evidence in the light
most favorable to the verdict, and indulge every reasonable inference that would
support it.” Id. at 822. The term “inference” means,
[i]n the law of evidence, a truth or proposition drawn from
another which is supposed or admitted to be true. A process of
reasoning by which a fact or proposition sought to be established is
deduced as a logical consequence from other facts, or a state of facts,
already proved. . . .
Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—
Houston [1st Dist.] 1993, writ dism’d w.o.j.) (quoting BLACK’S LAW DICTIONARY
700 (5th ed. 1979)). For a factfinder to infer a fact, “it must be able to deduce that
fact as a logical consequence from other proven facts.” Id.
If there is more than a scintilla of evidence to support the challenged finding,
we must uphold it. Formosa Plastics Corp. USA v. Presidio Eng’rs &
Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998). “[W]hen the evidence offered
to prove a vital fact is so weak as to do no more than create a mere surmise or
suspicion of its existence, the evidence is no more than a scintilla and, in legal
effect, is no evidence.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.
2004). However, if the evidence at trial would enable reasonable and fair-minded
people to differ in their conclusions, then factfinders must be allowed to do so.
14
City of Keller, 168 S.W.3d at 822; see also King Ranch, Inc. v. Chapman, 118
S.W.3d 742, 751 (Tex. 2003). “A reviewing court cannot substitute its judgment
for that of the trier-of-fact, so long as the evidence falls within this zone of
reasonable disagreement.” City of Keller, 168 S.W.3d at 822.
When an appellant challenges the factual sufficiency of the evidence on an
issue, we view all of the evidence in a neutral light and set aside the finding only if
it is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and manifestly unjust. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex.
2001); Plas–Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). The
trial court is the sole judge of the witnesses’ credibility, and it may choose to
believe one witness over another; a reviewing court may not impose its own
opinion to the contrary. See Zenner v. Lone Star Striping & Paving L.L.C., 371
S.W.3d 311, 314 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).
We review a trial court’s conclusions of law de novo. BMC Software
Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Although a trial
court’s conclusions of law may not be challenged for factual sufficiency, we may
review the legal conclusions drawn from the facts to determine whether the
conclusions are correct. Id. If we determine that a conclusion of law is erroneous,
but the trial court nevertheless rendered the proper judgment, the error does not
require reversal. Id.
15
Here, the county court’s pertinent findings of fact and conclusions of law
include that HOH was responsible under the lease for repairs to “all aspects of [the
property], other than the roof and the exterior”; a water pipe froze and then burst,
causing water damage to the interior of property; McCartney estimated that
$74,000 in damages had occurred; Havenar notified HOH of the repairs required to
comply with the lease; more than 10 days passed without HOH having made the
repairs; and HOH’s failure to repair constituted a breach of the lease. And the
county court concluded that HOH’s right to possession of the property terminated
because it had defaulted on the lease.
Weetly did testify that he hired Rodriguez to make the repairs, all of which
were completed in April 2010 and cost $4,300, and the county court admitted into
evidence Rodriguez’s invoice, listing each of the repairs that he made.
Rodriguez’s invoice lists the following repairs: “Fix plumbing leak in attic.
Remove damaged sheetrock and replace. Treat moisture. Tape, float, [and]
texture. Paint damaged areas only. Replace damaged laminate. Replace bathroom
[and] closet doors.” Although Weetly acknowledged that HOH “didn’t do
anything with the floors,” he explained that there was only “one plank” in the
wood floor that was “buckling” and it was replaced. And the county court also
admitted into evidence photographs of the property taken after the repairs.
16
However, the record further shows that Weetly admitted that HOH was
“responsible for all of the repairs to the building[,] other than the exterior and
roof.” The lease provides that if HOH “fails to repair” an item for which it is
responsible within ten days after Havenar gave written notice of the needed repair,
Havenar may “exercise [his] remedies” under the default provision. And under the
default provision, Havenar “may terminate” HOH’s right to occupy the property.
Moreover, McCartney testified to the extent of the damages to the property
that occurred in January 2010. He explained that a water pipe burst in the attic, a
“continuous rush of water” ran into a bedroom, and the water “spread out” along
the second floor, “leak[ing] down to the first floor.” The drywall on the ceilings
and walls had “failed,” ceilings had “fallen,” and the wood flooring and
subflooring were “cupping.” McCartney noted that for seven days the water had
been standing on the floors, which were “non-salvageable.” He estimated that
$74,000 in damages had been incurred, and the county court admitted his detailed
estimate into evidence.
Havenar testified that he inspected the property in May 2010. He saw that
HOH or its contractor had “cut around all the trim,” cut pieces out of the sheetrock,
and had just patched the holes with “piece[s] of sheetrock” and caulk. In August
2010, Havenar sent a notice of “deficiencies” to Weetly, who responded that
“everything [was] already done.” In December 2010, Havenar visited the property
17
with his contractor and found mold. And the report from a mold inspection
conducted on December 17, 2010 revealed “visible mold growth,” “water
damage,” “floor material . . . retaining moisture,” and “[a]ctively wet
materials . . . [on] walls resulting from the leak above in the attic.”
Denise also testified that she inspected the property after the completion of
the repairs, noting that they were “patchy,” meaning that “little pieces” had been
“cut out” of the wood floor and sheetrock. She explained that HOH did not repair
the property to the same condition that it had been in when she and Havenar leased
it to HOH. And the county court admitted into evidence photographs of the
property taken in early 2009, prior to HOH taking possession.
From this evidence, the county court could have reasonably found that HOH
had breached the lease by failing to make necessary repairs. The Texas Supreme
Court has held that the “subject of house repairs” is not “one for experts or skilled
witnesses alone.” McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see
also U.S. Fire Ins. Co. v. Lynd Co., 399 S.W.3d 206, 217 (Tex. App.—San
Antonio 2012, pet. denied) (noting scope of property damage may constitute matter
of “personal observation and common sense” within scope of lay testimony).
The evidence presented at trial also establishes that HOH’s breach was
material. A party is released from further obligation under a contract only if the
other party materially breached. Mustang Pipeline Co. v. Driver Pipeline Co., 134
18
S.W.3d 195, 198 (Tex. 2004). In determining whether a breach is material, we
consider:
(a) the extent to which the injured party will be deprived of the
benefit which he reasonably expected;
(b) the extent to which the injured party can be adequately
compensated for the part of that benefit of which he will be deprived;
(c) the extent to which the party failing to perform or to offer to
perform will suffer forfeiture;
(d) the likelihood that the party failing to perform or to offer to
perform will cure his failure, taking account of the circumstances
including any reasonable assurances; [and]
(e) the extent to which the behavior of the party failing to
perform or to offer to perform comports with standards of good faith
and fair dealing.
Id. at 199 (citing RESTATEMENT (SECOND) OF CONTRACTS § 241 (1981)). Here, the
evidence supports the county court’s findings that the property suffered $74,000 in
damages and mold has since been discovered. Further, insurance coverage has
been denied, and HOH, in its brief, concedes that Havenar “cannot be adequately
compensated for the alleged violations.” See id.
We conclude that there is more than a scintilla of evidence to support the
county court’s finding that HOH defaulted on the lease. See City of Keller, 168
S.W.3d at 810. We further conclude that the evidence supporting the county
court’s finding that HOH defaulted on the lease is not so weak as to make the
finding clearly wrong or manifestly unjust. See Francis, 46 S.W.3d at 242.
Accordingly, we hold that Havenar is “the prevailing party” in the forcible-detainer
19
action for purposes of recovering attorney’s fees. See TEX. PROP. CODE ANN.
§ 24.006(b); TEX. R. CIV. P. 510.11.
We overrule HOH’s fourth issue, fifth issue, and the portion of its sixth issue
concerning its breach of the lease by failing to repair the property. We need not
reach the portions of HOH’s sixth issue concerning the sufficiency of the evidence
supporting the trial court’s findings that HOH also breached the lease by failing to
maintain water heaters and provide adequate pest control at the property.
Expert Witness
In its third issue, HOH argues that the county court erred in allowing Melvin
Elmore to testify as Havenar’s expert because he was not qualified to testify
regarding “whether the repairs made after the water pipe accident[,] which
included but [were] not limited to removing and installing sheetrock and
insulation, taping, floating, and texturizing the walls and ceilings[,] were made in a
workmanlike manner.” HOH asserts that Elmore’s testimony was neither relevant
nor reliable.
Even if a trial court errs in admitting certain testimony, such an error is
rendered harmless and deemed waived if the objecting party allows the same or
similar evidence to be admitted without objection. See Volkswagen of Am., Inc. v.
Ramirez, 159 S.W.3d 897, 907 (Tex. 2004); Owens-Corning Fiberglas Corp. v.
Malone, 916 S.W.2d 551, 557 (Tex. App.—Houston [1st Dist.] 1996), aff’d, 972
20
S.W.2d 35 (Tex. 1998). Here, HOH did not object to Havenar’s testimony that
HOH had “cut around all the trim,” cut pieces out of the sheetrock, and had merely
patched the holes with “piece[s] of sheetrock” and caulk. See McGalliard, 722
S.W.2d at 697 (holding subject of house repairs within scope of lay testimony).
Further, the trial court admitted, without objection, the mold inspection report
detailing the presence, eight months after HOH had completed repairs, of
“[a]ctively wet materials . . . [on] walls resulting from the leak above in the attic.”
Moreover, Weetly himself testified that Ramirez “didn’t do anything with the
floors.”
Even if we were to conclude that the trial court erred in admitting Elmore’s
testimony, any such error would be harmless because the substance of Elmore’s
testimony was cumulative of other evidence that was admitted without objection.
See Malone, 916 S.W.2d at 557.
We overrule HOH’s third issue.
Additional Evidence
In its second issue, HOH argues that the county court erred in allowing
Havenar, after the close of his evidence, to “reopen his case twice to cure defects in
his pleading and to add evidence to support facts and claims alleged by him for the
first time” because this “conduct violates all rules of fair play and was detrimental
to [HOH] in this case.” HOH asserts that the county court allowed Havenar to
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“reopen his case” after he had realized that he had not verified his first amended
petition. The record shows that at the close of his case-in-chief in the county court,
Havenar’s counsel stated: “Subject to our filing an amended petition with
verification, [Havenar] would rest.” Immediately after, Havenar orally verified his
first amended petition. In its brief on appeal, HOH asserts that although “this
alone would be not be . . . sufficient to conclude that the [county] court abused its
discretion,” this, “coupled with the second time” that Havenar “was permitted to
reopen his case is sufficient to show a clear abuse of discretion.”
The record shows that Havenar, after resting his case and during the
presentation of testimony by a defense witness, asked the county court to consider
allegations in a second amended petition that had not yet been filed regarding the
maintenance of water heaters at the property and the presence of rodent droppings.
HOH asserts that these allegations “were not part of any discovery” and operated
as a surprise to HOH. Having concluded that the county court’s findings regarding
a breach of the lease are supported on other grounds, however, we do not reach this
issue.
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Conclusion
We vacate the portion of the county court’s judgment awarding Havenar
possession of the premises and dismiss this portion of the case as moot. We affirm
the portion of the county court’s judgment awarding Havenar attorney’s fees.
Terry Jennings
Justice
Panel consists of Justices Jennings, Higley, and Huddle
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