Hill & Hill Exterminators, Inc. v. McKnight

• Decision Date: 24 May 1984
• Docket Number: No. C14-82-300-CV,C14-82-300-CV
• Citation: 678 S.W.2d 515
• Parties: HILL & HILL EXTERMINATORS, INC., Appellant, v. Donald E. McKNIGHT, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 515

678 S.W.2d 515

HILL & HILL EXTERMINATORS, INC., Appellant, v. Donald E. McKNIGHT, Appellee.

No. C14-82-300-CV.

Court of Appeals of Texas Houston (14th Dist.).

May 24, 1984.

Edward J. Howlett, II, Kirklin, Boudreaux & Joseph, Houston, for appellant.

Patrick M. Flynn, Bray & Watson, Houston, for appellee.

Before JUNELL, MURPHY and SEARS, JJ.

OPINION

JUNELL, Justice.

This appeal is from a judgment in favor of appellee Donald E. McKnight in a suit brought under the Texas Deceptive Trade Practices Act. (DTPA). ¹

Donald E. McKnight and appellant Hill & Hill Exterminators entered into an agreement in March, 1968, wherein appellant provided termite treatment and agreed to provide termite control services on appellee's home for a period of twelve months, in return for appellee's payment of $119.00. The contract provided that appellee could extend the termite control services at the end of the twelve month period by paying an annual fee of $20.00. From March 30, 1968 to January 19, 1977, appellant made annual inspections of the premises. Appellant states that these inspections were limited to visual inspections for signs of live, active termites, and claims appellee could have obtained a more thorough inspection by paying an additional fee and requesting a different inspection. Appellee maintains appellant never advised him of any different types of inspection or treatment service.

In April, 1977, Dawson Enterprises discovered termite infestation while performing some remodeling work on appellee's home. Appellee sued appellant for damages under the DTPA and for breach of express warranties. The jury found actual damages in the amount of $3,345.00 and attorney's fees of $3,300.00. The court trebled the damages, added the attorney's fees and rendered judgment for McKnight in the total amount of $13,635.00.

In answer to special issues the jury found that appellant had engaged in deceptive trade practices by representing to appellee (1) that there were no visible, active termites in appellee's home on or about January 19, 1977, and (2) that it had treated appellee's home for the prevention of termites on or about January 19, 1977. The jury found each of these representations to be a producing cause of damage which adversely affected appellee. Additionally the jury found that Hill & Hill represented to appellee on March 30, 1968, by the termite control contract that if appellee paid an annual renewal fee, Hill & Hill warranted against future termite infestation damage. The jury also found the warranty to be a deceptive trade practice that was a producing cause of damage adversely affecting appellee.

In point of error two appellant contends there is no evidence to support the jury's finding that Hill & Hill had engaged in a deceptive trade practice by representing to appellee on January 19, 1977, that there was "no visible, active termites." Appellant urges that appellee failed to prove that Hill & Hill's representations were false, i.e., that there were in fact visible, active termites in the McKnight house on January 19, 1977.

In considering "no evidence" points, this court will consider only the evidence and inferences tending to support the verdict and will disregard all evidence and inferences to the contrary. Garza v. Alviar, 395 S.W.2d 821 (Tex.1965).

In our opinion the record contains some evidence that visible, active termites were present on January 19, 1977. Phillip Dawson, a remodeling contractor, testified that he found termites on April 13, 1977. Robert Firestone, owner of another pest control company, testified as an expert. He had never seen the McKnight residence but testified that photographs taken shortly after termites were found on April 13, 1977, showed moisture in the wood where some of the termite damage was found, indicating live termite activity within a reasonably short period of time before the pictures were taken. When asked what he meant by a reasonably short period of time, Firestone explained that the moisture in the wood meant termite activity within sixty to ninety days before the pictures were taken. January 19, 1977 was eighty-four days before the termites were found on April 13, 1977. This constituted some evidence that there were visible, active termites on January 19, 1977; therefore, appellant's second point of error, a no evidence point, is overruled.

In point of error three appellant contends there is no evidence to support the jury's finding that Hill & Hill engaged in a deceptive trade practice by representing to McKnight on January 19, 1977 that appellant had on that date treated the McKnight home for prevention of termites.

Appellant contends there is no evidence that appellant did not, in fact, treat the premises on January 19, 1977. Again we consider only the evidence and inferences tending to support the verdict and disregard all evidence and inferences to the contrary. Garza v. Alviar, supra. There was undisputed evidence that on January 19, 1977 appellant's service man did not go under the house, either to inspect or treat the premises. It is reasonable to infer from the evidence that appropriate treatment for prevention of termites required at least some of the treatment at points beneath the house. No such treatment was done on January 19, 1977. Also, Mr. Firestone testified that if appellant had made inspections and performed treatment for prevention of termites from inception of the contract in 1968 through January 19, 1977, live termite activity would not be likely in April, 1977. This constitutes some evidence that appellant did not in fact properly treat the premises on January 19, 1977; therefore, appellant's point of error three, a no evidence point, is overruled.

In point of error four appellant contends the trial court erred in rendering judgment for appellee based on the jury's answer to Special Issues Nos. 5 and 6 because those issues inquired about misrepresentations that allegedly occurred on March 30, 1968, more than five...