Opinion
No. 01-02-00340-CV
Opinion issued December 23, 2003.
On Appeal from the 157th District Court, Harris County, Texas, Trial Court Cause No. 2000-08813.
Panel consists of Chief Justice RADACK and Justices KEYES and ALCALA.
MEMORANDUM OPINION
Appellant, Trobaugh Construction, Inc. [hereinafter TCI], sued Home Depot, USA, Inc. [hereinafter Home Depot], for breach of implied warranty of merchantability. Following a bench trial, the trial court entered a take-nothing judgment in favor of Home Depot. TCI now challenges the trial court's findings of fact and conclusions of law. We affirm the judgment of the trial court.
BACKGROUND
In the underlying suit, TCI sued Home Depot for breach of warranty of merchantability. TCI alleged that a water supply line — purchased at Home Depot and installed in connection with a toilet installation by TCI's plumber — ruptured shortly after installation and caused extensive water damage to a commercial property that TCI was remodeling and "building out." TCI complained that, as a result of repairing the water damage, restoring the personal property of the building's commercial tenants, and paying for the tenant's lost business during repairs, it sustained $62,930.73 in damages.
TCI's counsel, Michael T. McGann, offered the following description to the trial court: "[t]his is a line that goes from the pipes in the wall to the tank on a toilet. And [sic] one end fits on the wall and one end fits on the tank. And [sic] this is the supply line that fills the tank in order for the toilet to flush."
TCI first sought to recover damages from its insurance company, Acceptance Insurance Company [Acceptance], and from adjustors, GAB Robins North America, Inc.,[GAB], in a suit for breach of contract, breach of the duty of good faith and fair dealing, Insurance Code violations, and deceptive trade practices. Prior to the bench trial, Acceptance and GAB settled with TCI for a combined total sum of $50,000.
After hearing the evidence and arguments in a bench trial, the court below entered a take-nothing judgment against TCI. TCI subsequently filed a request for findings of fact and conclusions of law. The trial court's findings of fact and conclusions of law are as follows:
The trial court referred to "Plaintiff, Trobaugh Construction, Inc." and "Defendant, Home Depot USA, Inc." For the sake of consistency, we will continue to refer to the parties as TCI and Home Depot, respectively.
1.The [trial] Court has jurisdiction over the subject matter and the parties to this proceeding.
2.TCI is in the business of construction, remodeling and build-out of commercial property.
3.In the course of its business, TCI remodeled and built-out a portion of a strip center, located at 12726 Woodforest Drive, Houston, Harris County, Texas, for the offices of Dr. Palermo and Dr. Webb.
4.As part of the remodeling and build-out, a new toilet was installed by TCI.
5.A water supply line was purchased at Home Depot.
6.The new toilet was in use for four or five days prior to December 3, 1998.
7.Dr. Palermo and Dr. Webb had accepted and taken possession of the office space.
8.During the night of December 3rd and 4th [sic], 1998, water damage occurred as a result of the hose separating from the nut that corned [sic] the hose to the tank of the toilet causing water to spray from the hose.
9.TCI repaired the water damage and replaced the tenants' damaged property.
10.The cost of repairing the water damage and replacement of the tenants' damaged property was $62,930.73.
11.Home Depot was a merchant with respect to the water supply hose and goods of that kind.
12.Home Depot is in the business of selling plumbing supplies.
13.TCI's damages were not proximately caused by Home Depot.
14.TCI gave Home Depot timely notice of the breach of warranty, the malfunction of the water supply hose and the water damage, same having been stipulated to by Home Depot.
The [trial] Court makes the following conclusions of law:
1.The sole cause of action against Home Depot is a breach of implied warranty of merchantability.
2.TCI failed to prove by a preponderance of the evidence that a defect existed in the water line at the time it was purchased at Home Depot.
3.TCI failed in its burden of proof to show that the water line in question was purchased at Home Depot in a defective condition.
4.There was no evidence regarding a defect existed [sic] in the water line at the time it was purchased at Home Depot.
5.Because TCI failed in its burden of proof that a defect in the water line existed at the time it was purchased at Home Depot, TCI failed to prove proximate cause.
6.Home Depot is entitled to settlement credit in the amount of $50,000.
In 12 points of error, TCI challenges the trial court's findings of fact and conclusions of law. Specifically, TCI argues the trial court erred because the evidence was legally and factually sufficient to show the following: there existed an implied warranty of merchantability on the part of Home Depot as to the water line, a defect existed in the water line at the time it was purchased at Home Depot, the water line was properly handled, Home Depot breached its implied warranty of merchantability as to the water line, TCI's damages were proximately caused by Home Depot, and Home Depot was not entitled to a settlement credit in the amount of $50,000.
DISCUSSION
1. Legal and Factual Sufficiency — Standards of Review
Challenges to the trial court's findings of fact and conclusions of law underlie all of appellant's issues on appeal. Accordingly, we address the standards that control our review. We review conclusions of law entered after a bench trial independently to determine their correctness from the facts found. Butler v. Arrow Mirror Glass, Inc., 51 S.W.3d 787, 792 (Tex. App.-Houston [1st Dist.] 2001, no pet.). We review questions of law de novo. Id. Findings of fact in a case tried to the court have the same force and effect as a jury's verdict on questions and are reviewable for legal and factual sufficiency. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); Min v. Avila, 991 S.W.2d 495, 500 (Tex. App.-Houston [1st Dist.] 1999, no pet.). When, as here, the appellate record contains a complete reporter's record of the trial, the trial court's findings of fact are not conclusive, but subject to the same legal and factual sufficiency challenges as govern review of jury findings. Min, 991 S.W.2d at 500. In reviewing challenges to the legal and factual sufficiency of the evidence, we review the legal challenge first. Id.
To analyze the legal sufficiency of the evidence to support the trial court's findings, we consider only the evidence and inferences that tend to support the challenged finding and disregard all inferences to the contrary. Id. If any evidence of probative force supports a finding, we must overrule the challenge and uphold the finding. Id. To analyze factual sufficiency, we weigh all the evidence, both supporting and conflicting, and may set the finding aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Id. 2. Breach of Implied Warranty of Merchantability
TCI's implied warranty claim is based on section 2.314 of the Uniform Commercial Code, which provides that a seller of goods impliedly warrants that they "are fit for the ordinary purposes for which such goods are used." TEX. BUS. COM. CODE ANN. § 2.314(b)(3) (Vernon 1994). For goods to breach this warranty, they must be defective — that is, they must be "unfit for the ordinary purposes for which they are used because of a lack of something necessary for adequacy." Gen. Motors Corp. v. Brewer, 966 S.W.2d 56, 57 (Tex. 1998) (citing Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 443-44 (Tex. 1989)). A product that performs its ordinary function adequately does not breach the implied warranty of merchantability merely because it does not function as well as the buyer would like, or even as well as it could. Gen. Motors, 966 S.W.2d at 57.
To prevail on its claim that Home Depot breached the implied warranty of merchantability, TCI had to prove that: 1) the water supply line was defective as unfit for its purpose because of a lack of what was required for adequacy; 2) the alleged defect existed when the water supply line left Home Depot's possession; and 3) the alleged defect proximately caused the injuries for which TCI sought damages. See Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 723 (Tex. App.-Houston [1st Dist.] 2003, no pet.) (citing Plas-Tex., Inc., 772 S.W.2d at 444; Harris Packaging Corp. v. Baker Concrete Constr. Co., 982 S.W.2d 62, 66 (Tex. App.-Houston [1st Dist.] 1998, pet. denied)).
We address causation first because it is dispositive. See Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 667 (Tex. 1999) (liability for breach of warranty requires a showing of proximate cause — that is, "but for" causation and foreseeability). In its tenth and eleventh points of error, TCI contends that 1) the trial court erred by finding TCI's damages were not proximately caused by Home Depot because TCI proved that its damages were proximately caused by Home Depot as a matter of law; and 2) the trial court's finding that TCI's damages were not proximately caused by Home Depot is against the great weight and preponderance of the evidence.
"Proximate cause" means that cause which, in a natural and continuous sequence, produces an event, and without which cause such event would not have occurred.
Rudes v. Gottschalk, 324 S.W.2d 201, 207 (Tex. 1959). In order to be a proximate cause, the act or omission complained of must be such that the person using the degree of care required of him would have foreseen that the event or some similar event, might reasonably result therefrom. Id.
TCI claims that the only source of water that flooded the offices was the defective water line, and, consequently, but for the water line having failed, there would not have been flooding in the offices. Specifically, TCI alleges that "[b]ut for the water line being defective and separating [from the nut on the bottom of the toilet] as it did, this incident would not have happened." TCI's owner, John Trobaugh, however, testified that other scenarios could have caused the separation of the water line from the toilet. For example, Trobaugh stated that in order to properly install a water line, a plumber must have the expertise to 1) correctly tighten the nut to the toilet; 2) make sure that the gasket is properly seated; and 3) make sure there are no obvious defects. Significantly, Trobaugh admitted that if his plumber tightened the water supply line too tightly, or, if he didn't tighten it enough, the hose could have become separated.
Q: Well, if he tightened it too much, if he tightened it too much, what would happen?
A: Either probably break the plastic ring that's on the hose or the plastic collar that comes out of the toilet.
Q: Okay. It would — perhaps some crimping would occur?
A: Possibly, yes.
Q: And wouldn't that over time have a tendency to cause the separation?
A: It could. I mean, there is no —
Q: It could, couldn't it?
A: Yeah.
Q: And if he didn't tighten it enough, then over time, some damage could occur, couldn't it?
A: If he didn't tighten it enough, it would leak, yes.
Q: Okay. So if he didn't tighten it enough or if he tightened it too much, the hose could have become separated.
A: Correct.
Q: And that necessarily would not have shown any marks or deterioration on the hose itself. Isn't that correct?
A: Correct.
Q: And if he had used Teflon tape, perhaps this incident may not have happened.
Is that correct?
A: That's a matter of opinion.
Q: So in other words, there are several options as to how this flooding occurred, aren't there?
A: On how it occurred, yes. It occurred with the hose — with this nut falling off — I mean, coming out of the — the hose coming out of the nut.
In our legal sufficiency review of the trial court's finding that TCI's damages were not proximately caused by Home Depot, we consider only the evidence and inferences that tend to support the finding. We conclude that Trobaugh's testimony — admitting there were other factors that could have caused the water supply line to separate from the toilet — is some evidence of probative force that supports the challenged finding. Accordingly, the trial court's finding that TCI's damages were not proximately caused by Home Depot is legally sufficient, and, thus, we overrule TCI's tenth point of error.
Neither do we find the evidence to be factually insufficient. In our factual sufficiency analysis of the trial court's finding that TCI's damages were not proximately caused by Home Depot, we weigh all the evidence, both supporting and conflicting, and set aside the finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. See Min, 991 S.W.2d at 500. Even assuming arguendo, that a defect existed in the water line when it was purchased at Home Depot, TCI failed to prove that the defective water line proximately caused its damages.
As evidence of causation, TCI first offered the testimony of David Sutton, the first to arrive at the scene of the flood. Sutton testified that he entered the flooded offices and found the source of the water to be the fill hose for the toilet, which "appeared to be pulled loose and blowing water at quite a high pressure." Sutton further testified that the hose had broken loose from the toilet, and, that the hose "looked broken." Next, Trobaugh testified that no other leak was present in any of the offices that flooded. Trobaugh also testified that there was no leaking in the plumbing, no toilet overflow, no sink overflow, and no drain back up Trobaugh further testified that the flood occurred because "[t]his hose separated from the nut on the bottom of the toilet and just stayed on constantly."
Sutton's testimony continued, in pertinent part:
Q: Would you describe [the hose] for me?"
A: There was a — I don't know the technical part names and what not. But there's a — I guess the only thing I can think of is a nipple that goes to the bottom of the commode.
Q: Okay.
A: The filler hose connects to that. That nipple appeared to be broken and looked as if it had broken off."
Q: Was there a nut attached to the bottom of the filler hose that made its connection to the commode end of the filler line?
A: I don't recall. I don't recall a whole lot of the specifics of it at the time. I could look at pictures and probably tell you whether or not that was.
As discussed above, however, Trobaugh admitted that other scenarios could have caused the separation of the water supply line from the toilet, including an improperly installed toilet. We conclude that the trial court's finding that TCI's damages were not proximately caused by Home Depot is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust, and, thus, we overrule TCI's eleventh point of error.
CONCLUSION
Because our holdings on TCI's tenth and eleventh points of error are dispositive of the appeal, we decline to address the remaining points of error. We affirm the trial court's judgment.