James D. Moore D/B/A Color Tile and Carpet v. Colleen Neuharth
James D. Moore D/B/A Color Tile and Carpet v. Colleen Neuharth
Opinion
FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY,
NO. 3916, HONORABLE ROBERT MORSE, JUDGE PRESIDING
Neuharth contacted the Round Rock, Texas location of Color Tile inquiring about replacing water-damaged flooring in her home. Fred Fogarty, then the manager of that location, inspected Neuharth's home and gave her an estimate of $4,221.60 to replace all the carpet and carpet padding in the home, re-stain damaged baseboards, and install pergo flooring on top of the existing ceramic title. Neuharth accepted this bid.
After much of the work had been completed, Neuharth expressed her dissatisfaction with the flooring installation. For a few months following Neuharth's initial complaint, some efforts were made to repair the problems; however, the parties could not agree on the extent of the restoration work needed. Eventually, Neuharth was offered a full refund, provided she would return the carpeting installed in her home. Because Color Tile had already taken away all of her old carpeting, Neuharth rejected this offer. She was then contacted by Joel Prate, who identified himself as the new Color Tile manager replacing Fogarty. Prate examined the flooring in the home, offered in writing to waive the remaining $1,500 balance owed by Neuharth, and committed to certain repairs. Nevertheless, an agreement still could not be reached between the parties.
Neuharth subsequently filed suit alleging breach of contract, breach of warranty, and violations of the DTPA, complaining of the following: the carpet padding in the master bed and bathroom was not replaced, even though she was charged for new padding; the carpet was improperly installed, showing seams in the middle of the living room and master bedroom; the carpet padding in the living room was pieced together and had holes in it; some carpet was "floating" because it had not been tacked into place; rotted tack boards were not replaced; transition strips were not used, causing significant height differences between the pergo flooring and the other flooring; and the pergo flooring warped due to incorrect installation.
The case was tried without a jury, and the trial court rendered judgment for Neuharth on her DTPA claims, awarding actual damages in the amount of $4,221.60, trebled for a knowing violation of the DTPA, plus attorney's fees, interest, and costs of court.
In four points of error, Moore complains that: (1) the evidence is legally and factually insufficient to support the finding that his actions were committed knowingly; (2) the evidence is legally and factually insufficient to support a finding of any amount of actual damages; (3) the trial court erred in allowing Neuharth's neighbor to testify regarding the statements of a Color Tile employee; and (4) the trial court erred in allowing Neuharth to testify as to her opinion of the estimated cost of her repairs.
Actual Damages
In his second point of error, Moore argues that the evidence is legally and factually insufficient to support the award of actual damages. In deciding a no-evidence point, we must consider all the evidence and inferences in the light most favorable to the finding of the trier of fact. See Associated Indemnity Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 285-86 (Tex. 1998). See generally William Powers, Jr. & Jack Ratliff, Another Look at "No Evidence" and "Insufficient Evidence," 69 Tex. L. Rev. 515 (1991). In contrast, when determining the factual sufficiency of the evidence, we must consider and weigh all the evidence equally and should set aside the judgment only if the evidence is so weak, or the judgment so contrary to the overwhelming weight of the evidence, as to make the judgment clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re Estate of King, 244 S.W.2d 660, 661 (Tex. 1951); see also Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986). See generally Powers & Ratliff, supra, 69 Tex. L. Rev. 515 (1991).
Neuharth testified that after she and Fogarty were unable to reach an agreement regarding her complaints, she was contacted by Joel Prate, who indicated he was the new manager of Color Tile. Prate agreed to inspect the flooring and installation in her home. Neuharth testified that Prate was "shocked" by the poor quality of the work, that he readily agreed to fix all the problems she had alerted him to, and that he further offered to waive the remaining $1,500 balance she owed to Color Tile. Prate later recanted, stating that Color Tile was willing to do some minor repairs, but to address all the problems would take a complete replacement of all the flooring in the entire house, and the owner (Moore) was not willing to incur that expense.
The trial court found that $4,221.60 would fairly and reasonably compensate Neuharth for the damages caused by Moore's unlawful acts. This amount mirrors the amount of Color Tile's estimate to replace all the flooring in the home. Neuharth testified that Prate admitted that the flooring in the entire home would need to be replaced in order to properly address the poor installation. We believe that Neuharth's testimony, coupled with the original bid by Color Tile in that amount, constituted more than a scintilla of evidence to support the award of actual damages in the amount of $4,221.60. In fact, given the evidence that the flooring throughout the home needed to be replaced, it was entirely logical for the trial court to use Color Tile's bid to assess the amount of damages. Accordingly, we hold that the evidence was legally sufficient to support the trial court's finding.
We also conclude that the evidence was factually sufficient to support the actual damages award. While Moore did offer the testimony of a four-and-a-half year employee of Color Tile as an expert witness to refute the necessity of replacing all the flooring in Neuharth's home, the trial court, as the trier of fact, was the judge of the credibility of the witnesses, was free to believe one witness and disbelieve the other, and could accept lay testimony over that of an expert. See, e.g., Kirby v. Chapman, 917 S.W.2d 902, 912 (Tex. App.--Fort Worth 1996, no writ). We do not find the evidence so weak as to make the trial court's judgment clearly wrong and unjust. Accordingly, we hold that the evidence was factually sufficient to support the trial court's actual damages award.
Objections To Testimony
In his fourth point of error, Moore asserts that the trial court improperly allowed Neuharth to give her opinion of the estimated cost of her repairs. Neuharth testified that, prior to contacting Color Tile, she had received from her insurance company an estimate of $4,500 to replace the water-damaged flooring in her home. Counsel for Moore objected to this testimony, complaining that it was hearsay and that Neuharth, as a lay witness, was incompetent to give her opinion as to repair costs. The trial court allowed the testimony over the objection.
In his third point of error, Moore asserts that the trial court erred in allowing the testimony of Alycs Macis, a neighbor and friend of Neuharth. Macis testified that she contacted "Dutch," a Color Tile employee, and told him she was interested in purchasing Neuharth's home and wanted an estimate for any needed repairs to the flooring. She did not mention the ongoing dispute between Neuharth and Color Tile. After inspecting Neuharth's house, Dutch indicated to Macis that the flooring installation was the worst job he had seen in his thirty-nine years in the business and needed to be replaced at a cost equal to that of the original installation. Moore objected to Macis's testimony on the ground that it was obtained by fraud and deception. (1)
Moore asserts that without the testimony of Neuharth concerning the insurance estimate and the testimony of Macis relating Dutch's statements, there is no evidence to show the cost of replacing the flooring; therefore, there is no evidence supporting an award of $4,221.60 in actual damages. (2) We have already determined that the evidence was both factually and legally sufficient to uphold the trial court's actual damages award based on Neuharth's testimony as to Prate's statements. Accordingly, even assuming the trial court improperly admitted the objected-to testimony, we would still uphold the actual damages award based on other evidence. We therefore need not address whether the objected-to testimony should have been excluded.
"Knowing" Violation
Section 17.50(b)(1) of the DTPA allows trebling of all actual damages if the trier of fact finds that the defendant violated the DTPA "knowingly." See DTPA § 17.50(b)(1). In his first point of error, Moore complains that the evidence is legally or factually insufficient to support the trial court's finding of a knowing violation of the DTPA. We disagree.
The Texas Supreme Court recently held that a knowing violation occurs when the offending party has "actual awareness" of the deception:
"Actual awareness" does not mean merely that a person knows what he is doing; rather, it means that a person knows that what he is doing is false, deceptive, or unfair. In other words, a person must think to himself at some point, "Yes, I know this is false, deceptive, or unfair to him, but I'm going to do it anyway."
St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53-54 (Tex. 1998).
Our review of the record in the present case reveals ample evidence of a knowing violation. The most flagrant of this evidence involves the replacement of the carpeting in Neuharth's master bedroom. It is undisputed that Color Tile's estimate included the re-carpeting of the entire home, including the replacement of the padding underneath the carpet. On the day the carpeting was installed, Neuharth remembered Fogarty mentioning that the installers were running low on padding. After the installation was completed, Neuharth noticed a difference between the carpeting in the master bedroom and that in the living room. She removed the carpeting from a corner of her bedroom and discovered that new carpet had been laid over her old padding, even though she had been charged for new padding. Neuharth testified that when she complained to Fogarty, he admitted he was aware the old padding had not been replaced. He told her the installers decided it would be better to install the new carpet over the old pad rather than do nothing at all. Furthermore, Moore's responses to Neuharth's requests for admissions admit the carpet padding was not replaced in the master bedroom. This evidence is sufficient to support a finding of a knowing violation of the DTPA. There is no dispute that Neuharth was charged for new padding, that the padding was not replaced, that this deception was known, but was done anyway.
Moreover, this was not the only evidence of a knowing violation. Neuharth testified that Prate admitted to her that the flooring installation was completely unacceptable, and promised to "make it right." He later refused to make the changes he admitted were necessary, however, and told Neuharth she would have to bring suit if she wanted any repairs. This conduct also falls within the definition of a knowing DTPA violation.
We hold that the award of treble damages pursuant to the DTPA is supported both by legally and factually sufficient evidence. Point of error one is overruled.
Having found sufficient evidence to support the trial court's award of $4,221.60 in actual damages and the finding of a knowing violation of the DTPA, we affirm the judgment.
J. Woodfin Jones, Justice
Before Justices Jones, B. A. Smith and Yeakel
Affirmed
Filed: August 12, 1999
Do Not Publish
1. Macis testified that she was indeed interested in purchasing Neuharth's home.
2. We note that the actual damages award was for $4,221.60, the amount of the Color Tile bid, rather than the insurance estimate of $4,500.
>"Knowing" Violation
Section 17.50(b)(1) of the DTPA allows trebling of all actual damages if the trier of fact finds that the defendant violated the DTPA "knowingly." See DTPA § 17.50(b)(1). In his first point of error, Moore complains that the evidence is legally or factually insufficient to support the trial court's finding of a knowing violation of the DTPA. We disagree.
The Texas Supreme Court recently held that a knowing violation occurs when the offending party has "actual awareness" of the deception:
"Actual awareness" does not mean merely that a person knows what he is doing; rather, it means that a person knows that what he is doing is false, deceptive, or unfair. In other words, a person must think to himself at some point, "Yes, I know this is false, deceptive, or unfair to him, but I'm going to do it anyway."
St. Paul Surplus Lines Ins. Co. v. Dal-Worth Tank Co., 974 S.W.2d 51, 53-54 (Tex. 1998).
Our review of the record in the present case reveals ample evidence of a knowing violation. The most flagrant of this evidence involves the replacement of the carpeting in Neuharth's master bedroom. It is undisputed that Color Tile's estimate included the re-carpeting of the entire home, including the replacement of the padding underneath the carpet. On the day the carpeting was installed, Neuharth remembered Fogarty mentioning that the installers were running low on padding. After the installation was completed, Neuharth noticed a difference between the carpeting in the master bedroom and that in the living room. She removed the carpeting from a corner of her bedroom and discovered that new carpet had been laid over her old padding, even though she had been charged for new padding. Neuharth testified that when she complained to Fogarty, he admitted he was aware the old padding had not been replaced. He told her the installers decided it would be better to install the new carpet over the old pad rather than do nothing at all. Furthermore, Moore's responses to Neuharth's requests for admissions admit the carpet padding was not replaced in the master bedroom. This evidence is sufficient to support a finding of a knowing violation of the DTPA. There is no dispute that Neuharth was charged for new padding, that the padding was not replaced, that this deception was known, but was done anyway.
Moreover, this was not the only evidence of a knowing violation. Neuharth testified that Prate admitted to her that the flooring installation was completely unacceptable, and promised to "make it right." He later refused to make the changes he admitted were necessary, however, and told Neuharth she would have to bring suit if she wanted any repairs. This conduct also falls within the definition of a knowing DTPA violation.
We hold that the award of treble damages pursuant to the DTPA is supported both by legally and factually sufficient evidence. Point of error one is overruled.
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