Perry Roofing Co. v. Olcott

• Decision Date: 31 December 1986
• Docket Number: No. 2-86-007-CV,2-86-007-CV
• Citation: 722 S.W.2d 538
• Parties: PERRY ROOFING COMPANY, Appellant, v. Eugene D. OLCOTT, Appellee.
• Court: Texas Court of Appeals

Page 538

722 S.W.2d 538

PERRY ROOFING COMPANY, Appellant, v. Eugene D. OLCOTT, Appellee.

No. 2-86-007-CV.

Court of Appeals of Texas Fort Worth.

Dec. 31, 1986.

Steve C. Cocanower, Fort Worth, for appellant.

Leeper, Priddy & Chovanec, and Laurance Priddy, Fort Worth, for appellee.

Before HOPKINS, FARRIS and KELTNER, JJ.

OPINION

HOPKINS, Justice.

This is an appeal from a judgment entered in accordance with a jury verdict finding that appellee Olcott had suffered damages as a result of appellant Perry Roofing Company's failure to install a new roof in a good and workmanlike manner in accordance with its written contract with appellee. Appellee brought suit against appellant and Aetna Casualty and Surety seeking damages for a leaky roof. The suit against appellant alleges improper installation of a new wood shake shingle roof. The suit against Aetna was based on a contract of insurance and alleged damage to the roof caused by hail. The jury found there was no hail damage. Aetna is not a party to this appeal. The jury found that appellee had been damaged in the sum of $15,000.00 as a result of appellant's improper installation of the roof. The trial court entered judgment in accordance with the jury verdict, but ordered that $1,134.02 of the award be paid to Aetna, representing the amount Aetna had paid appellee for roof damage.

Appellant (Perry) alleges various errors asserting there is no evidence or insufficient evidence to support the verdict, comparative causation, estoppel and waiver, and negligence in appellee (Olcott) not finding and reporting the defects sooner. Appellee asserts two counterpoints complaining of the $1,134.02 award to Aetna and the calculation of prejudgment interest at the rate of six percent per annum.

We grant appellee's second counterpoint, overrule appellee's first counterpoint, and overrule all of appellant's points of error. Accordingly, we affirm the trial court's judgment except in its award of prejudgment interest. In granting appellee's second counterpoint, we reverse and render awarding prejudgment interest in the amount of ten percent to appellee.

Late in 1979 Perry contracted with Olcott to install a new shake shingle wood roof on Olcott's home. Shortly after installation of the roof, Olcott noticed what he assumed were paint stains on the ceiling but did not notice actual water leaks from the roof until a wind, hail and rain storm May 8, 1981, when water poured through the ceiling. Olcott thought that hail had damaged the roof and accordingly made a claim on his homeowner's insurance policy. His insurance carrier, Aetna, made some payment for the alleged damage but eventually refused to pay further, claiming that any leaks were due to faulty installation of the roof and not hail damage. Olcott then made several attempts to contact Perry about the leaking roof. Perry claimed that the roof was properly installed and refused to correct the problem.

In his first two points of error Perry alleges that there is no evidence or insufficient evidence to support the jury's finding that $15,000.00 was a necessary or reasonable cost of repairing damages caused by Perry.

In examining a no evidence point of error this court considers only the evidence and inferences which tend to support the findings of the jury and disregards all the evidence and inferences to the contrary. See Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex.1985). Any evidence tending to support the verdict requires this court to overrule a no evidence point of error. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951). When considering an insufficient evidence point this court considers all the evidence in the case both that in support of and that contrary to the finding, to determine if the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex.1985). If the court so determines, the findings should be set aside and a new trial ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).

There was testimony from a professional roofer, Watts, that the roof could be repaired by inserting small tin shingles under the "cracks" between the shakes, but, to insure no further leaks, the roof should be replaced. Watts and an Aetna claims adjuster with years of experience in examining roofs both testified that the roof leaked because it was improperly installed. Like Watts, the adjuster testified that the only way to truly fix the roof was by replacement. Watts testified that the replacement cost of the roof would be from $15,000.00 to $18,000.00. The adjuster estimated replacement cost at $175.00 to $200.00 per square. There was testimony estimating that the roof consisted of approximately 80 squares.

Perry asserts in his brief that the testimony suggests replacement of the roof was not necessary. This assertion is not supported by the record. While at one point Watts states that the known existing leaks could be repaired with the small tin shingles, he continues his testimony saying that the only way to fully repair the roof would be to re-do it. Repair and replacement are not necessarily alternative remedies for the same problem. The testimony demonstrated that repair could cure leaks at known specific locations in the roof but that replacement would be necessary to remedy both discovered and undiscovered defects.

The testimony as set out above is sufficient evidence from which the jury could determine that the roof should be replaced and that the damages suffered by Olcott as a result of Perry failing to install the roof in a good and workmanlike manner was $15,000.00. We do not find that the jury's finding is so against the great weight and preponderance of the evidence that it is manifestly unjust, therefore, Perry's first and second points of error are overruled.

Perry alleges in the third point of error that the trial court erred in failing to submit a special issue regarding comparative causation. We overrule this point of error because appellant did not properly preserve the point for review. The record before this court demonstrates that Perry objected to question 20. However, the record further reflects that Perry did not submit the substitute special issue which he urged. Instead he merely stated "we need another subdivision before the 100%." Perry, in complaining of an omitted special issue which establishes an element of his affirmative defense of comparative causation must request the trial court in writing to submit that issue. See Woods v. Crane Carrier Co., Inc., 693 S.W.2d 377, 379 (Tex.1985); TEX.R.CIV.P. 279. See also 3 R. MCDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS sec. 12.32.2 (rev.1983).

Perry's fourth point of error alleges that the trial court erred in entering judgment for Olcott in that the jury's affirmative finding that Olcott gave defendant reasonable notice to cure the defect is against the great weight and preponderance of the evidence. Again, we disagree. This case was submitted on a breach of warranty theory under both the common law and statutory Deceptive Trade Practices Act. However, recovery was had only on the contract claim. There was no recovery under the Deceptive Trade Practices Act. Therefore, notice is immaterial because it is not an element of a contract cause of action. The elements of a contract action are as follows: the existence of a contract, execution, performance, and breach. Albritton v. Henry S. Miller Co., 608 S.W.2d 693 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.). Notice need only be proved, under these facts, if something additional is demanded, such as treble damages under the Deceptive Trade Practices Act. This being a contract case, and not a Deceptive Trade Practices case, notice is not at issue. Therefore, even if the jury's answer to the special issue is not supported by the evidence, the answer can be disregarded because it is immaterial. See C. & R. Transport, Inc. v. Campbell, 406 S.W.2d 191, 194 (Tex.1966).

Point of error five, also dealing with notice, is overruled. Notice, as discussed above, is not an element of a contract cause of action.

In point of error six Perry asserts that Olcott, as a matter of law, waived his claim against him by filing a claim with the insurance company. Point of error seven states that a jury finding that Olcott did not waive his claim against Perry is against the great weight and preponderance of the evidence. Point of error eight asserts that the trial court erred in failing to submit an issue based on estoppel when it was properly presented by the evidence.

Regarding point of error six, we must examine the record for evidence supporting the jury finding while disregarding all contrary evidence. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). Regarding the point of error seven, we must consider both the evidence supporting the waiver theory as well as evidence disproving waiver. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam); Ford Motor Co. v. Nowak, 638 S.W.2d 582, 585 (Tex.App.--Corpus Christi 1982, writ ref'd n.r.e.). Considering supporting and contradicting evidence, if a jury finding is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, we must sustain the point, regardless of whether there is some evidence to support it. Watson v. Prewitt, 159 Tex. 305, 320 S.W.2d 815, 816 (1959); In re King's Estate, 244 S.W.2d at 661.

There is no support for a waiver argument. Perry's brief cites us to Rosestone Properties, Inc. v. Schliemann, 662 S.W.2d 49 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.). In Rosestone, the San Antonio court properly stated that "waiver consists of a voluntary act by which a known right is intentionally relinquished." Id. at 53.

There is no evidence in the record to show that Olcott relinquished any rights against Perry. Instead the record reflects that Olcott originally...