Robert v. Foxworth-Galbraith Lumber Company, No. 10-07-00246-CV (Tex. App. 8/6/2008)

• Decision Date: 06 August 2008
• Docket Number: No. 10-07-00246-CV.,10-07-00246-CV.
• Citation: Robert v. Foxworth-Galbraith Lumber Company, No. 10-07-00246-CV (Tex. App. 8/6/2008), No. 10-07-00246-CV. (Tex. App. Aug 06, 2008)
• Parties: ROBERT AND DENA PAVELKA, Appellants, v. FOXWORTH-GALBRAITH LUMBER COMPANY, Appellee.
• Court: Texas Court of Appeals

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ROBERT AND DENA PAVELKA, Appellants, v.FOXWORTH-GALBRAITH LUMBER COMPANY, Appellee.

No. 10-07-00246-CV.

Court of Appeals of Texas, Tenth District, Waco.

Opinion delivered and filed August 6, 2008.

Appeal from the 19th District Court, McLennan County, Texas, Trial CourtNo. 2005-1514-1.

Reversed and remanded.

Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.

MEMORANDUM OPINION

FELIPE REYNA, Justice.

Robert and Dena Pavelka filed suit against Foxworth-Galbraith Lumber Co. alleging that Foxworth-Galbraith had supplied them lumber which was infested with powderpost beetles.The Pavelka alleged claims for breach of contract, negligent misrepresentation, breach of warranty, and DTPA violations.A jury found: (1) Foxworth-Galbraith had supplied lumber which was defective because it was not fit for its ordinary purposes; (2) the Pavelkas suffered damages in the amount of $17,384; and (3)the parties were each fifty percent responsible for the damages.The jury refused to find in the Pavelkas' favor on their other claims.The court rendered judgment awarding the Pavelkas $8,662.We will reverse and remand.

The Pavelkas contend in their first issue that the court erred by denying their motion for mistrial premised on an irreconcilable conflict in the jury's answers to two questions.¹

The jury answered "yes" to QuestionNo. 3, which asked whether the lumber furnished by Foxworth-Galbraith was "unfit for the ordinary purposes for which such lumber is used because of a defect" and whether such failure was a proximate cause of damages.The jury was instructed in QuestionNo. 3 that the term "'defect' means a condition of the goods that renders them unfit for the ordinary purposes for which they are used because of a lack of something necessary for adequacy."

The Pavelkas argue that the conflict arises from the jury's negative answer to QuestionNo. 5, which asked whether Foxworth-Galbraith had failed to comply with a warranty which was a producing cause of damages.The jury was instructed in QuestionNo. 5 that "[f]ailure to comply with a warranty" means, among other things, "[f]urnishing goods that, because of a lack of something necessary for adequacy, were not fit for the ordinary purposes for which such goods are used."

The threshold issue is whether the findings in question are about the same material fact.Bender v. Southern Pac. Transp. Co.,600 S.W.2d 257, 260(Tex.1980);Indian Beach Prop. Owners' Ass'n v. Linden,222 S.W.3d 682, 695(Tex. App.-Houston[1st Dist.]2007, no pet.);Holder-McDonald v. Chicago Title Ins. Co.,188 S.W.3d 244, 250-51(Tex. App.-Dallas2006, pet. denied).If so, we must attempt to reconcile any conflict in the findings if there is any reasonable basis on which they can be reconciled.Seeid.Where the questions are amenable to more than one reasonable construction, we must adopt the construction that avoids a conflict.Id.

If "one of the answers would require a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, then the answers are fatally in conflict."Little Rock Furniture Mfg. Co. v. Dunn,148 Tex. 197, 222 S.W.2d 985, 991(1949);Indian Beach Prop. Owners' Ass'n,222 S.W.3d at 695;accordAlamo Community College Dist. v. Browning Constr. Co.,131 S.W.3d 146, 166(Tex. App.-San Antonio2004, pet. denied).If we determine that a fatal conflict exists, we must remand to the trial court for a new trial.Indian Beach Prop. Owners' Ass'n,222 S.W.3d at 695;Calabrian Chems. Corp. v. Bailey-Buchanan Masonry, Inc.,44 S.W.3d 276, 282(Tex. App.-Beaumont2001, pet. denied);Otis Spunkmeyer, Inc. v. Blakely,30 S.W.3d 678, 690(Tex. App.-Dallas 2000, no pet.).

Here, the Pavelkas' complaints involve only one allegedly defective product, the lumber.This product was the basis for their UCC breach-of-warranty claim, about which QuestionNo. 3 inquired, and their DTPA breach-of-warranty claim, about which QuestionNo. 5 inquired.SeeOtis Spunkmeyer,30 S.W.3d at 690-91;see alsoKetter v. ESC Med. Sys., Inc.,169 S.W.3d 791, 796(Tex. App.-Dallas 2005, no pet.)("there is no relevant distinction between Ketter's UCC and DTPA breach-of-warranty claims").Thus, the jury's findings in response to both questions concern the same material fact.SeeOtis Spunkmeyer,30 S.W.3d at 691(question on strict liability claim for manufacturing defect involved same material fact as question on breach of implied warranty of merchantability claim).

The noteworthy difference between these questions is that the UCC question focused on proximate cause while the DTPA question focused on producing cause.The jury found that Foxworth-Galbraith's furnishing of defective lumber was a proximate cause of the Pavelkas' damages in answering the UCC question but refused to find that this same conduct was a producing cause of damages when answering the DTPA question."An act or defect that is not a producing cause cannot, as a matter of law, constitute a proximate cause."Id.(citingHyundai Motor Co. v. Rodriguez,995 S.W.2d 661, 667(Tex.1999)).Therefore, the jury's conflicting answers cannot be reconciled on the basis of distinct causation elements.Id.

Foxworth-Galbraith contends that the jury's answers may be reconciled because the jury was not limited by either question to any particular "moment in time."Thus, Foxworth-Galbraith suggests that the jury may have been focused on the moment of delivery when addressing the UCC question but considered Foxworth-Galbraith's conduct afterward (particularly in response to the Pavelkas' request to cure) in answering the DTPA question.We disagree.

The DTPA does not independently establish any express or implied warranties, and thus the breach of any warranty actionable under the DTPA must be established independently of that statute.La Sara Grain Co. v. First Nat'l Bank of Mercedes,673 S.W.2d 558, 565(Tex.1984);Continental Dredging, Inc. v. De-Kaizered, Inc.,120 S.W.3d 380, 390-91(Tex. App.-Texarkana2003, pet. denied).Here, the jury found that Foxworth-Galbraith breached the UCC's implied warranty of merchantability.SeeTEX. BUS. & COM. CODE ANN. § 2.314(Vernon 1994).This is the only...