X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Steven and Peggy Abell bought a heating unit from Sears, Roebuck, which contracted with D/FW Home Improvement Specialists Inc. to install the unit. Without permission from Sears, D/FW contracted with Randy Sprinkle and his company, Texas Air Conditioning And Plumbing, to do the installation. Two months after the installation, the heating unit caught fire, damaging the Abells’ home and personal property. The City of Arlington’s fire investigation revealed that the unit had not been installed properly and that the necessary permits had not been obtained prior to the installation. The Abells sued Sears, D/FW and Sprinkle for negligence and violations of the Deceptive Trade Practices Act. Each defendant filed cross-claims against the other for contribution, indemnity and breach of contract. After a jury trial, the trial court entered judgment for the Abells, who elected to recover damages from Sears. Sears won its cross-claim against D/FW, and D/FW won its cross-claim against Sprinkle. Sears, D/FW and Sprinkle all appeal the judgments against them. HOLDING:Affirmed. Sears’ complaint is that the trial court erred by not submitting a question on proportionate responsibility of its co-defendants under Business & Commerce Code 17.555. However, the court does not reach the merits of the argument, because it finds Sears did not properly preserve the error for review. The question Sears says should have been included, dealing with proportionate responsibility, was not itself included in the charge Sears submitted to the trial court. Nor did Sears object to the absence of a proportionate responsibility question. The court then addresses D/FW’s arguments. First, D/FW says the trial court’s judgment for Sears against D/FW was not supported by evidence of Sears’ damage from D/FW’s breach of contract. D/FW presents a what the court calls a “novel theory”: because Sears was not obligated to pay any money damages to Abell until the jury returned its verdict, there was no evidence of damage to Sears during the course of trial up until then. Therefore, the court continues, according to D/FW the trial court erred by entering judgment against D/FW because no evidence existed to support a finding of damages suffered by Sears. The court finds no case law in support of D/FW’s argument. The court declines D/FW’s invitation to disregard all the record evidence on D/FW’s culpable conduct until the moment that the jury returns the verdict. The court says the judicial system “would be sorely abused” by D/FW’s theory. In any event, looking at the record as a whole, there is sufficient evidence supporting the judgment. D/FW’s second issue is that $60,000 in attorneys’ fees should not have been awarded against it for Sears. To recover attorneys’ fees under Civil Practice & Remedies Code 38.001, a party must 1. prevail on a cause of action for which attorneys’ fees are recoverable, and 2. recover damages. Sears met that standard. D/FW’s third issue is that prejudgment interest on the award was improper. Prejudgment interest was awarded on the portion of the judgment paid to the Abells by Sears. Therefore, Sears is entitled to recover the same types of damages from D/FW. The court next turns to Sprinkle’s challenge to the judgment against him for D/FW. His first argument is that it was error to admit an incomplete copy of the contract between the parties the copy that was admitted did not included appendices and that the admission harmed him. The court holds that the admission of the contract document was within the discretion of the trial court and was not improper especially in light of the fact that the substance of the contract was not disputed. Further, the mere fact of the missing appendices should not be a bar to recovery under an agreement particularly where complete performance occurred. Sprinkle also complains that because the underlying contract was improperly admitted, there is no evidence of a contract before the jury and; therefore, there is insufficient evidence to support the jury’s verdict of a breach of that agreement. The court finds that ample evidence existed to support the jury’s finding that the manner in which the heating unit was installed was defective and that the improper installation of the unit was negligent and a breach of the contract that Sprinkle had entered into with D/FW. Sprinkle then argues that the question of the harm caused by the injection of insurance into the case in chief by the testimony of the witness from one co-defendant. Assuming without deciding that Sprinkle’s objections to the mention of insurance properly preserved the issue for review, he still must show that the injection of insurance resulted in the rendition of an improper verdict. The mere mention of insurance, though erroneous, does not result in an automatic reversal or mistrial. A review of the record establishes that the party most culpable for the incident was in fact Randy Sprinkle. But for the faulty installation of the heating unit in question, the fire would not have occurred, and the damages would not have existed. Therefore, the injection of insurance did not cause the rendition of an improper verdict. OPINION:Barajas, C.J.; Barajas, C.J., Larsen, and McClure, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.