Rudolph v. ABC Pest Control, Inc.

• Decision Date: 11 January 1989
• Docket Number: No. 04-88-00301-CV,04-88-00301-CV
• Citation: 763 S.W.2d 930
• Parties: Paul RUDOLPH, Appellant, v. ABC PEST CONTROL, INC., Appellee.
• Court: Texas Court of Appeals

Page 930

763 S.W.2d 930

Paul RUDOLPH, Appellant, v. ABC PEST CONTROL, INC., Appellee.

No. 04-88-00301-CV.

Court of Appeals of Texas San Antonio.

Jan. 11, 1989.

Rehearing Denied Feb. 7, 1989.

Geoffrey E. Goring, San Antonio, for appellant.

Richard H. Ihfe, Janet P. Littlejohn, Ihfe & Miller, San Antonio, for appellee.

Before CADENA, C.J., and CANTU ^*, and CHAPA, JJ.

OPINION

CHAPA, Justice.

This is an appeal from a judgment wherein the trial court granted an instructed verdict in favor of appellee, ABC Pest Control, Inc., against appellant Paul Rudolph. The only issue before us is whether this action by the court was proper. We reverse and remand.

Appellant purchased a home from Robert Ahlstrom in May 1984. As a condition of the purchase, Ahlstrom agreed to provide appellant with a written termite inspection report of the house. Appellee ABC Pest Control was contacted and after inspection, furnished appellant with a copy of its report which stated that there was no active infestation, but that there was evidence of a previous infestation of termites. The report also provided that there was evidence of conditions conducive to infestation, and evidence of damage to structural items and other constructions. In an explanatory space on the reverse side of the document, appellee's representative stated that there was no visible damage to the house. In May 1985, appellant discovered severe termite damage and active infestation to part of the house structure which had apparently been present at the time of appellee's inspection. He brought suit against appellee under the Deceptive Trade Practices Act, and under breach of contract and negligence theories. Trial was before a jury in February 1988. After appellant had rested his case, appellee moved for a directed verdict which was denied by the court. Subsequently, at the close of its case, appellee again moved for a directed verdict which was granted.

Appellant brings seven points of error contesting the propriety of the trial court's action in granting the directed verdict. Appellee, in its oral motion before the court, argued that appellant had failed to establish any violation of the Deceptive Trade Practices Act, breach of contract, or negligence, and that appellant had failed to prove that damages were caused by appellee's conduct. Appellant contends that any and all theories were legally maintainable and should have been presented to the jury. We agree.

An instructed verdict is proper only in limited instances. These are 1) when a defect (specifically indicated) in the opponent's pleadings makes it insufficient to support a judgment, 2) when the evidence proves conclusively the truth of fact propositions which under the substantive law establish the right of the movant, or negative right of his opponent, to judgment, or 3) when the evidence is insufficient to raise an issue of fact as to one or more fact propositions which must be established for the opponent to be entitled to judgment. Watts v. St. Mary's Hall, 662 S.W.2d 55, 59 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.). Upon review, the evidence presented before the court must be considered in the light most favorable to the party against whom the verdict is instructed and this action is proper only when the prevailing party is entitled to judgment as a matter of law. Dryden v. City National Bank of Laredo, 666 S.W.2d 213, 215 (Tex.App.--San Antonio 1984, writ ref'd n.r.e.). When reasonable minds may differ as to the truth of any controlling facts, a jury issue is present and an instructed verdict is improper. Watts, supra at 59.

At trial, appellee advanced several reasons why a directed verdict was proper but the court did not indicate a specific ground for granting the motion. We are aware that a judgment of the trial court can be affirmed if it is good upon any ground stated even though the trial court granted it for the wrong reason. Lance v. City of Mission, 308 S.W.2d 546, 548 (Tex.Civ.App.--San Antonio 1957, writ ref'd n.r.e.). However, upon review of the record we find that a directed verdict was improper based on any reason advanced by appellee.

The evidence in the record indicates, in a light most favorable to appellant, that active termite infestation existed at the time of the inspection. Testimony of ABC's vice-president established that the infestation had been present in excess of five years. Appellant testified that he would not have purchased the home had he known of the extensive damage caused by the infestation, and that he relied on the inspection report in making his ultimate determination to buy the house. Appellant also testified that he paid $60,000 for the house and the reasonable market value of it, as damaged, was $54,000. It is well settled that an owner of property can testify to its market value. State v. Berger, 430 S.W.2d 557, 559 (Tex.Civ.App.--Waco 1968, writ ref'd n.r.e.). This requirement is usually met, as in this case, by asking the witness if he is familiar with the market value of his property. Porras v. Craig, 675 S.W.2d 503, 505 (Tex.1984). The strength or weakness of the qualifications of the witness is merely a factor to be considered in weighing his testimony. Dillon v. Troublefield, 601 S.W.2d 141, 143 (Tex.Civ.App.--Austin 1980, no writ).

Appellee places much reliance on McKnight v. Hill & Hill Exterminators, 689 S.W.2d 206 (Tex.1985), which involved a homeowner's suit against an exterminator resulting from termite infestation. The Texas Supreme Court held that the plaintiff in such a case must produce evidence from which a jury may reasonably infer that damage sued for has resulted from the conduct of the defendant. Id. at 207. The narrow issue presented in McKnight was whether legally sufficient evidence had been produced for the jury to conclude that all the termite damages in question occurred after a certain date. Id. at 207. The testimony in that case which raised only a suspicion that the infestation existed on the date in question was held to be insufficient to support a recovery. The instant case is distinguishable. The evidence produced raised an issue as to whether ABC misrepresented its inspection to appellant and whether this caused appellant to sustain damages. We hold that controlling facts existed concerning appellant's cause of action upon which reasonable minds could differ. Appellant was entitled to present these issues to the jury. Therefore, we find the trial court improperly granted an instructed verdict in favor of defendant as to the DTPA cause of action.

We further conclude that fact issues were present concerning appellant's negligence cause of action which should have precluded the granting of a directed verdict in favor of appellee. In Texas, the elements of actionable negligence are: 1) the existence of a duty on the part of one party to another, 2) breach of that duty, and 3) damages proximately resulting from that breach. Rosas v. Buddies Food Store, 518 S.W.2d 534 (Tex.1975); ...