also see Sanctions-cases   
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Clark v. Bres (Tex.App.- Houston [14th Dist.] Sep. 5, 2006)(Anderson)
[
homeowner law, residential construction, breach of contract, counterclaims, fraud, allegedly improper jury
argument, sanctions for discovery abuse, harassing questions in deposition]
AFFIRMED: Opinion by Justice Anderson
Before Justices Anderson, Edelman and Frost)
14-05-00482-CV John Clark III, Individually and d/b/a Celtic Constructors and Betty Stovall (KIT) Clark v. Tom
Bres and Jan Bres a/k/a Jon Holzinger
Appeal from 80th District Court of Harris County (Judge Kent Sullivan)

Pryor v. State of Texas  (Tex.App–Houston [14th Dist.] June 6, 2006)(Fowler)
[forfeiture proceeding, death penalty discovery sanctions, pleadings stricken, lesser sanctions in the form of
warning]
AFFIRMED: Opinion by Justice Fowler
Before Justices Hudson, Fowler and Seymore
14-05-00411-CV Russell Ray Pryor v. State of Texas
Appeal from 215th District Court of Harris County







Opinion issued June 28, 2007

In The

Court of Appeals

For The

First District of Texas



NO. 01-05-00796-CV



WILLIAM BLOODWORTH II, Appellant



V.



KRISTI ADEN, Appellee







On Appeal from the 278th District Court

Walker County, Texas

Trial Court Cause No. 14153C









MEMORANDUM OPINION



William Bloodworth II appeals the trial court’s order granting appellee Kristi Aden’s motion for sanctions.  In
four issues, Bloodworth contends the trial court erred in submitting the sanctions issue to the jury, and in
imposing a sanction against Bloodworth personally instead of against William D. Bloodworth II, PLLC.  We
conclude that (1) any error in the submission of the sanctions issue to the jury was harmless, and (2) the trial
court did not abuse its discretion in sanctioning Bloodworth personally.  We therefore affirm.  

Background

   Kristi petitioned the trial court to modify a child support order against her ex-husband, Steven Wayne
Aden.  Steven hired Bloodworth to represent him in the lawsuit.  Bloodworth answered the lawsuit and filed a
counterclaim on Steven’s behalf.  The counterclaim sought to modify the trial court’s conservatorship order.  
Kristi moved for sanctions against Bloodworth, asserting that the counterclaim was frivolous and filed in
violation of section 10.001 of the Texas Civil Practice and Remedies Code and Rule 13 of the Texas Rules of
Civil Procedure.  See Tex. Civ. Prac. & Rem. Code Ann. § 10.001 (Vernon 2002); Tex. R. Civ. P. 13.

   Steven thereafter fired Bloodworth because he felt that Bloodworth had misled him with regard to filing a
counterclaim.  The trial court granted Bloodworth’s motion to withdraw from his representation of Steven.  
Bloodworth then intervened in the lawsuit between Steven and Kristi, asserting claims against Steven for
breach of contract and sworn account, and challenging Kristi’s motion for sanctions.  Steven counterclaimed
against Bloodworth, asserting claims for legal malpractice, fee forfeiture, and violations of the Deceptive
Trade Practices Act.  Steven and Bloodworth, however, eventually nonsuited their claims against one another.

   At the hearing on the motion for sanctions, Steven testified that he never authorized Bloodworth to file the
counterclaim to modify the conservatorship order.  Rather, Steven told Bloodworth simply that he would like
more visitation with his daughter.  When Steven asked Bloodworth why he had filed the counterclaim to modify
conservatorship, Bloodworth responded, “that’s the way us lawyers do that.  You know, give the Judge some
playing room to go in there and settle for something in between.”  

   Kristi testified that she paid $25,000 to retain an attorney to defend the conservatorship counterclaim.  
Kristi had to borrow money from her grandmother to pay the retainer.  Kristi’s attorney testified that he billed
$32,131.83 in this case.

   Bloodworth testified that Steven came to his office and informed him of the various problems he was having
with Kristi concerning custody of the couple’s daughter.  Bloodworth explained to Steven the various actions
he could take to remedy the problems, and asked Steven to discuss the options with his most “trusted
advisors.”  Bloodworth testified that Steven gave him permission to file the counterclaim to modify
conservatorship.

   At the end of the hearing, the trial court submitted the sanctions issue to the jury.  The jury found that
Steven’s counterclaim against Kristi seeking to modify the trial court’s conservatorship order was frivolous.  
The jury also found that Bloodworth should pay Kristi $8,250 in attorney’s fees as a sanction for filing the
frivolous counterclaim on Steven’s behalf.  The trial court entered an order against Bloodworth, stating:

IT IS ORDERED that the pleadings filed in this matter by William Bloodworth, III [sic] were found to be frivolous,
groundless and baseless by a jury and this Court.  The fact that William Bloodworth, III [sic] filed fictitious
pleadings causing this matter to become a custody issue in order to harass and intimidate Kristi Aden and
against the wishes of his client, Steven Aden created a frivolous, groundless and baseless cause of action,
with the intent to harass Kristi Aden.  Therefore, IT IS ORDERED by this Court that a money judgment is
rendered against William Bloodworth, III [sic] as sanctions and in favor of Kristi Aden in the amount of
$8,250.00.  Further, it is an ORDER of this Court that William Bloodworth, III [sic] make payment to Kristi Aden
on or before 5:00 p.m. on _______________, 2005.



Jury Trial

   In his first three issues, Bloodworth contends the trial court erred in submitting the sanctions issue to the
jury.

Filing a frivolous pleading is litigation misconduct subject to sanction under Chapter 10 of the Texas Civil
Practice and Remedies Code and Texas Rule of Civil Procedure 13.  Tex. Civ. Prac. & Rem. Code Ann. §§
10.001–10.006 (Vernon 2002); Tex. R. Civ. P. 13; Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Am.
Transitional Care Ctrs. of Tex., Inc. v. Palacios, 46 S.W.3d 873, 878 (Tex. 2001).  If a sanction order refers to
a specific rule, either by citing the rule, tracking its language, or both, we determine whether the sanction is
appropriate under that particular rule.  Finlay v. Olive, 77 S.W.3d 520, 524 (Tex. App.—Houston [1st Dist.]
2002, no pet.).  In this case, the trial court’s sanction order tracks the language of Rule 13.  See Tex. R. Civ.
P. 13.  

Texas Rule of Civil Procedure 13 provides for sanctions if a party files a pleading that is “groundless and
brought in bad faith or groundless and brought for the purpose of harassment.”  Id.  “Groundless” means no
basis in law or fact and not warranted by a good faith argument for the extension, modification, or reversal of
existing law.  Id.  Rule 13 requires the trial court to hold an evidentiary hearing to make the necessary factual
determinations about the motives and credibility of the person signing the allegedly groundless petition.  Id.;
Bisby v. Dow Chem. Co., 931 S.W.2d 18, 21 (Tex. App.—Houston [1st Dist.] 1996, no writ).  A court may not
impose sanctions under Rule 13 “except for good cause, the particulars of which must be stated in the
sanction order.”  Tex. R. Civ. P. 13.

The decision to impose Rule 13 sanctions and the existence of groundlessness, bad faith, and harassment
are questions of law for the court.  See id. (“If a pleading, motion or other paper is signed in violation of this
rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate
sanction available under Rule 215-2b, upon the person who signed it, a represented party, or both.”  
(emphasis added)); Trevino v. Ortega, 969 S.W.2d 950, 954 (Tex. 1998); Donwerth v. Preston II Chrysler-
Dodge, Inc., 775 S.W.2d 634, 636 (Tex. 1989); Riddick v. Quail Harbor Condo. Ass’n, Inc., 7 S.W.3d 663,
677–78 (Tex. App.—Houston [14th Dist.] 1999, no pet.); Falk & Mayfield L.L.P. v. Molzan, 974 S.W.2d 821,
823 (Tex. App.—Houston [14th Dist.] 1998, pet. denied) (“We hold, therefore, that a trial court may, under
appropriate circumstances, impose sanctions under Rule 13 in excess of the costs or expenses incurred by
the defendant.”).  “There is no right to a trial by jury on the issue of whether rule 13 has been violated.”  Neely
v. Comm’n for Lawyer Discipline, 976 S.W.2d 824, 827–28 (Tex. App.—Houston [1st Dist.] 1998, no pet.); see
also Brantley v. Etter, 677 S.W.2d 503, 504 (Tex. 1984) (rejecting proposition that “one complaining of the
award of attorney’s fees as sanctions has the right to a jury trial to determine the amount of such attorney’s
fees” and holding that “the amount of attorney’s fees awarded as sanctions for discovery abuse is solely
within the sound discretion of the trial judge, only to be set aside upon a showing of clear abuse of that
discretion”); Bradt v. Sebek, 14 S.W.3d 756, 763 n.2 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

A trial court errs if it submits a question of law to the jury.  See Knutson v. Ripson, 163 Tex. 312, 314, 354 S.
W.2d 575, 576 (1962); Hudson Buick, Pontiac, GMC Truck Co. v. Gooch, 7 S.W.3d 191, 195 (Tex. App.—
Tyler 1999, pet. denied); Markert v. Williams, 874 S.W.2d 353, 356 (Tex. App.—Houston [1st Dist.] 1994, writ
denied).  Absent a showing of extraneous prejudice, however, such error is harmless since no harm results if
it is answered as the trial court should have answered it, or it can be deemed immaterial and disregarded by
the trial court if answered incorrectly.  See Tex. R. App. P. 44.1(a)(1); Spencer v. Eagle Star Ins. Co. of Am.,
876 S.W.2d 154, 157 (Tex. 1994) (“A question which calls for a finding beyond the province of the jury, such
as a question of law, may be deemed immaterial.”); Med. Towers, Ltd. v. St. Luke’s Episcopal Hosp., 750 S.W.
2d 820, 826 (Tex. App.—Houston [14th Dist.] 1988, writ denied).  

In this case, the trial court’s sanction order states, “the pleadings filed in this matter by William Bloodworth, III
[sic] were found to be frivolous, groundless and baseless by a jury and this Court.”  (emphasis added).  This
language indicates that the trial court made the necessary findings to support the sanction order separate
from the jury’s findings.  The order further provides:

The fact that William Bloodworth, III [sic] filed fictitious pleadings causing this matter to become a custody
issue in order to harass and intimidate Kristi Aden and against the wishes of his client, Steven Aden created a
frivolous, groundless and baseless cause of action, with the intent to harass Kristi Aden.  Therefore, IT IS
ORDERED by this Court that a money judgment is rendered against William Bloodworth, III [sic] as sanctions
and in favor of Kristi Aden in the amount of $8,250.00.  



The trial court complied with the requirements of Rule 13 in that it held an evidentiary hearing on the
sanctions issue, and its order particularly states the good cause for issuing the sanction.  See Tex. R. Civ. P.
13; Gaspard v. Beadle, 36 S.W.3d 229, 239 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (“A trial court’s
failure to specify the good cause for sanctions in a sanction order may be an abuse of discretion.”); Bisby,
931 S.W.2d at 21.  Because the trial court made the necessary findings to support the sanction order on its
own, the jury’s answers to the charge questions on sanctions could have been deemed immaterial and
disregarded by the trial court if answered incorrectly.  See Tex. R. App. P. 44.1(a)(1); Spencer, 876 S.W.2d at
157; Med. Towers, 750 S.W.2d at 826.  We therefore hold that any error in the submission of the sanctions
issue to the jury was harmless.  See Tex. R. App. P. 44.1(a)(1).



Professional Limited Liability Company

In his fourth issue, Bloodworth contends the trial court erred in imposing a sanction against him personally
instead of against William D. Bloodworth II, PLLC.  Bloodworth admitted a certificate of incorporation at the
sanctions hearing demonstrating that he operates his law practice as a professional limited liability company
(PLLC).[1]  Bloodworth asserts that he acted on behalf of William D. Bloodworth II, PLLC when he signed the
groundless pleading, and is therefore protected from personal liability for the sanction under the Texas
Limited Liability Company Act.  See Tex. Rev. Civ. Stat. Ann. art. 1528n, § 4.03(A) (Vernon Supp. 2006)
(“Except as and to the extent the regulations specifically provide otherwise, a member or manager is not liable
for the debts, obligations or liabilities of a limited liability company including under a judgment decree, or order
of a court.”).

Under the Texas Government Code, the “practice of law” means

the preparation of a pleading or other document incident to an action or special proceeding or the
management of the action or proceeding on behalf of a client before a judge in court as well as a service
rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal
skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the
facts and conclusions involved must be carefully determined.



Tex. Gov’t Code Ann. § 81.101(a) (Vernon 2005).  The practice of law in Texas is restricted to members of
the State Bar, with limited exceptions permitted by the Texas Supreme Court.  Id. § 81.102 (Vernon 2005); In
re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 770 (Tex. 1999).  The State Bar is composed of those persons
licensed to practice law in Texas.  Tex. Gov’t Code Ann. § 81.051(a) (Vernon 2005).

   Texas Rule of Civil Procedure 13 provides: “If a pleading, motion or other paper is signed in violation of this
rule, the court, upon motion or upon its own initiative, after notice and hearing, shall impose an appropriate
sanction available under Rule 215-2b, upon the person who signed it, a represented party, or both.”  Tex. R.
Civ. P. 13.  

Bloodworth has a license to practice law and he acted in his professional capacity when he signed the
pleading at issue in this case.[2]  As the “person who signed” the pleading, Bloodworth subjected himself to
personal liability for the sanction resulting from the pleading.  Id.  We hold that the trial court did not abuse its
discretion in sanctioning Bloodworth personally.  

Conclusion

   We hold that (1) any error in the submission of the sanctions issue to the jury was harmless, and (2) the
trial court did not abuse its discretion in sanctioning Bloodworth personally.  We therefore affirm the order of
the trial court.





                                                            Jane Bland

                                                            Justice



Panel consists of Justices Nuchia, Hanks, and Bland.





--------------------------------------------------------------------------------

[1] Bloodworth formed his PLLC before January 1, 2006.  The Texas Business Organizations Code therefore
will not apply to the PLLC until January 1, 2010.  See Tex. Bus. Orgs. Code Ann. § 402.005(b) (Vernon Supp.
2006).  Until then, the Texas Limited Liability Company Act remains applicable.  See Tex. Rev. Civ. Stat. Ann.
art. 1528n (Vernon Supp. 2006).

[2] An attorney may also subject his law firm to liability for a sanction in certain circumstances.  See Finlay v.
Olive, 77 S.W.3d 520, 527 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (upholding sanction against attorney
and his law firm); Kiefer v. Cont’l Airlines, Inc., 10 S.W.3d 34, 41 (Tex. App.—Houston [14th Dist.] 1999, pet.
denied) (affirming sanction against law firm for introducing certain witnesses at hearing on motion for new
trial).
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--------------------------------------------------------------------------------











Issued June 21, 2007



















In The

Court of Appeals

For The

First District of Texas










NO. 01-06-00871-CV











LARRY BERGER, CARL J. KOLB

and CARL J. KOLB, P.C., Appellants



V.



HOWARD R. KING, HILL, ANGEL &

KING, L.L.P. and SAM LEE, III, Appellees







On Appeal from the 23rd District Court

Brazoria County, Texas

Trial Court Cause No. 25191











MEMORANDUM OPINION





Both the plaintiff, Larry Berger, and his attorney, Carl J. Kolb, bring a restricted appeal in this legal
malpractice case.  Berger contends that the trial court erred in granting summary judgment in favor of his
former attorney, Howard King, and King’s law firm.  Kolb complains of the trial court’s order sanctioning him for
bringing unsupported claims against Samuel Lee for the purpose of harassment.   Concluding that neither
Berger nor Kolb has demonstrated that their claims are entitled to direct review by restricted appeal, or that
the trial court had any jurisdictional impediment to sanction Kolb, we affirm.

Background



This suit follows after Larry Berger’s earlier personal injury suit in the 23rd District Court of Brazoria County,
which he settled following a December 2000 fairness hearing.  Two years later, Berger sued his personal
injury lawyer, Howard King, the law firm of Hill, Angel & King, LLP (collectively, “King”); his former wife Lola
Berger; two members of her family, T.L. and Nona Whitley; and Sam Lee, a court-appointed guardian ad litem
for Berger in the personal injury suit, in Uvalde County District Court.

Lee, a Brazoria County resident, and King, a Harris County resident, objected to venue in Uvalde County and
sought transfer of their claims. The Uvalde trial court severed the claims against Lee and King into a separate
action—the trial court cause in this case—and ordered it transferred to the 23rd District Court of Brazoria
County.  Before the transfer occurred, Berger nonsuited his claims against Lee and moved the Uvalde court
to reconsider its venue and severance order.   The Uvalde court denied the motion to reconsider in July 2003
and sent the severed action to the Brazoria court, but signed the order granting Berger’s nonsuit of Lee.  

In July 2004, a year after the transfer, Lee moved for sanctions against Berger and Carl Kolb, Berger’s
attorney, alleging violations of section 10.001 of the Texas Civil Practice and Remedies Code.  Both Berger
and Kolb attended the August 2006 hearing on the motion.  After the hearing, all parties had the opportunity
to supplement their briefing on contested issues, including jurisdiction.  The trial court denied Berger and Kolb’
s plea to the jurisdiction on August 26, 2004.

In August 2005, during a quiescent period in the litigation, Kolb moved his office and duly sent a notice of
change of address to the court and the parties.  On December 15, 2005, King filed and served a motion for
summary judgment against Berger’s claims.  The certificate of service, however, showed that King mistakenly
sent the motion to Kolb at his former address.  On December 30, 2005, King prepared an amended notice of
submission stating that the court would consider the motion on February 27, 2006.[1]  Although the body of
the notice incorrectly addresses Kolb at his former office location, the certificate of service accompanying the
notice specifies that Kolb was served by fax at the correct telefax number and also contains his correct
address.

By the end of January 2006, neither the court nor King had received a response to the motion.  Concerned
that Kolb had not received the motion because of King’s mistake in sending the service copy to Kolb’s former
address, the trial court sent King’s counsel a copy of Kolb’s August 2005 notice of change of address along
with a request that he provide proof that Kolb received the motion.[2] The bottom of the letter reflects that the
court copied Kolb on this communication.[3]

A few days later, King’s attorney provided the court with copies of the signed green return receipt showing
delivery of the motion to the correct address.  The court did not specifically request, and King did not provide,
any evidence that Kolb had received the amended notice of submission.  

The trial court waited to rule on the summary judgment motion, but by March 15, 2006, Kolb still had not filed
a response on behalf of Berger.  On that date, the trial court signed two orders, one granting King’s motion
for summary judgment against Berger and the other granting Lee’s motion for sanctions against Kolb.  On
April 3, the trial court issued a notice of intent to dismiss the cause for want of prosecution.  Kolb promptly
responded by letter, informing the court that he had yet to receive notice of a submission date for King’s
motion for summary judgment and asked for information concerning its status.  On April 26, 2006, the court
clerk sent notice to Kolb of the summary judgment order signed on March 15.

Kolb did not move to extend the postjudgment deadlines or seek any other postjudgment relief in the trial
court either for himself or his client.  On September 15, 2006, Kolb and Berger noticed this restricted appeal.
[4]  

Discussion

Finality of the judgment



As a threshold issue, Kolb and Berger question the finality of the March 15, 2006 orders.  The fact that the
court signed a separate order on the sanctions issue does not affect finality.  A motion for sanctions “is not a
pleading that frames issues which must be resolved in a final judgment.”  Jobe v. Lapidus, 874 S.W.2d 764,
766 (Tex. App.—Dallas 1994, writ denied).  Even without addressing the sanctions issue, the summary
judgment disposed of all parties and all issues in the pleadings, making it a final judgment.[5]  See Lane Bank
Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 312 (Tex. 2000) (noting that “a judgment does not have to
resolve pending sanctions issues to be final”); Martin v. Texas Dept. of Family and Protective Servs., 176 S.W.
3d 390, 393 (Tex. App.—Houston [1st Dist.] 2004, no pet.) (same); see also Hinde v. Hinde, 701 S.W.2d 637,
639 (Tex. 1985) (observing that judgment is generally considered to be final when it disposes of all parties
and issues in case, even when some incidental or dependent matter may still remain to be settled).  Kolb’s
right to appeal the sanction order also accrued when the trial court rendered the summary judgment
disposing of all parties and all issues before it.  See Felderhoff v. Knauf, 819 S.W.2d 110, 111 (Tex. 1991).  
Accordingly, the issue of finality does not present any obstacle to this appeal.  

Requirements for a restricted appeal



Kolb and Berger have opted to seek appellate review of the rulings below in the form of a restricted appeal.  A
restricted appeal is a procedural device available that enables a party to bring a direct appeal under certain,
narrowly drawn circumstances when the party is unable to meet normal appellate timetables.  See Tex. R.
App. P. 30.  A direct attack on a judgment by restricted appeal must (1) be brought within six months after the
trial court signs the judgment (2) by a party to the suit (3) who did not participate in the actual trial, and (4) the
error complained of must be apparent from the face of the record.  Alexander v. Lynda’s Boutique, 134 S.W.
3d 845, 848 (Tex. 2004); Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  

The face of the record includes all papers on file in the appeal, including the clerk’s record and any reporter’s
record.  Roventini v. Ocular Scis., Inc., 111 S.W.3d 719, 721-22 (Tex. App.—Houston [1st Dist.] 2003, no
pet.).  We may not consider evidence or documents that were not before the trial court when it rendered
judgment.  Alexander, 134 S.W.3d at 848-49; Roventini, 111 S.W.3d at 722.  

Restricted appeal of summary judgment disposing of Berger’s claims

The parties apparently agree that Berger meets the first three criteria required for a restricted appeal.  See
Stiver v. Tex. Instruments, Inc., 615 S.W.2d 839, 842 (Tex. Civ. App.—Houston [1st Dist.] 1981, writ ref'd n.r.
e.) (holding that party met nonparticipation requirement for restricted appeal of summary judgment where he
filed no response to motion for summary judgment).  They focus their dispute on whether error appears on
the face of the record.  

Our decision in Stiver is instructive on this issue.  As in this case, the record in Stiver contained a certificate of
service attached to the summary judgment motion, and the parties did not dispute that Stiver received the
motion.  See id. at 842.  This Court concluded, however, that Stiver was entitled to bring a restricted appeal
because the motion was not accompanied by an order setting a date for the hearing, nor did the record
contain any separate notice of the hearing date with a certificate of service.[6]  Id.; see also Chow v. Dole,
677 S.W.2d 220, 221 (Tex. App.—Houston [1st Dist.] 1984, no writ) (record did not show that appellants
received actual notice of trial setting or that notice was attempted as provided by Texas Rule of Civil
Procedure 21a, requiring reversal of default judgment and remand for new trial).

In contrast to the record in Stiver, the record in this case contains a notice timely informing Berger of the
summary judgment submission date and certifying service on Berger’s attorney by fax to the correct number.  
When a party certifies that its notice of submission was properly served on a party by telephonic transfer to
the correct number, a rebuttable presumption arises that the notice was properly received by the addressee.  
See Tex. R. Civ. P. 21a; Thomas v. Ray, 889 S.W.2d 237, 238 (Tex. 1994).  

Berger contends that the amended notice of hearing does not warrant this presumption because of the
discrepancy between the notice, which contains his former address, and the certificate of service, which
contains his current address as well as his fax number.  The certificate of service, however, unequivocally
shows King served the notice by fax to the correct number, making the difference in physical address
immaterial.  Accordingly, the certificate of service constitutes prima facie evidence of proper receipt.  

Berger could have availed himself of the opportunity to rebut the presumption of receipt by making an offer of
proof of nonreceipt with a request for relief in the trial court following notice of the judgment.  See Thomas,
889 S.W.2d at 238.  He might have used it to seek an extension of the appellate deadlines so that he could
move for new trial, and, if unsuccessful, file a timely direct appeal without the limitations of a restricted
appeal.  Compare Tex. R. App. P. 30 with Tex. R. Civ. P. 306a(4) and Tex. R. App. P. 4.2.  He may also
present proof of nonreceipt to the trial court in a bill of review.  See Wembley Inv. Co. v. Herrera, 11 S.W.3d
924, 927 (Tex. 1999).  He has not done any of these things.

When the trial court signed the judgment, it did not have any evidence before it to the counter the
presumption of receipt.  The unrebutted presumption thus supports notice to Berger of the hearing.  See
Thomas, 889 S.W.2d at 238.  We therefore hold that the lack of notice alleged by Berger is not apparent from
the face of the record.  Consequently, we are precluded from reviewing the merit of his restricted appeal.  

Restricted appeal of sanctions order against attorney Kolb

The record reveals that Kolb fully participated in the sanctions proceedings, including providing a written
response to the motion for sanctions, presenting argument and evidence at a hearing, and briefing additional
issues for the trial court following the hearing.  His participation in those proceedings prevents him from
meeting the requirements for a restricted appeal, and thus bars us from reviewing the merits of Kolb’s direct
attack on the sanctions award.  See Stiver, 615 S.W.2d at 842.  

We may nevertheless consider Kolb’s contention that the trial court lacked jurisdiction to rule on Lee’s motion
for sanctions.  A complaint that the trial court did not have the authority to issue the sanctions order
constitutes a collateral attack.  See Glunz v. Hernandez, 908 S.W.2d 253, 255 (Tex. App.—San Antonio 1995,
writ denied) (explaining that collateral attacks are not bound by any procedure or statute of limitations and are
available only to set aside void judgment or one which involved fundamental error).  

The trial court’s post-nonsuit power to sanction depends on whether it had plenary power when it signed the
sanctions order.  See Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596 (Tex. 1996); In re T.G.,
68 S.W.3d 171, 179 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); see also State ex rel. Latty v. Owens,
907 S.W.2d 484, 486 (Tex. 1995) (holding that orders issued after plenary power expires are void for lack of
subject matter jurisdiction).  Kolb contends that the court lost its plenary power over Lee thirty days after it
signed the order of nonsuit in the severed cause, that is, no later than August 21, 2003.  Accordingly, Kolb
urges, the trial court lacked jurisdiction to rule on Lee’s April 29, 2004 motion for sanctions.  

We disagree.  Neither Kolb nor any other party moved to sever the claims against Lee from the rest of the
case, making the order of nonsuit interlocutory until the court had disposed of all claims and all parties to the
proceeding.  “While it is true that a party’s right to a nonsuit may exist from the moment a written motion is
filed, it is not true that the appellate timetables begin to run—until a final judgment is signed disposing of all
parties and all issues in the lawsuit.”  Avmanco, Inc. v. City of Grand Prairie, 835 S.W.2d 160, 163 (Tex. App.
—Fort Worth 1992, pet. dism’d) (emphasis in original); see also Tex. R. Civ. P. 301 (“Only one final judgment
shall be rendered in any cause except where it is otherwise specially provided by law.”); H.B. Zachry Co. v.
Thibodeaux, 364 S.W.2d 192, 193 (Tex. 1963) (holding that prior interlocutory orders merge into subsequent
order disposing of remaining parties and issues, creating final and appealable judgment); Kansas Univ.
Endowment Ass’n v. King, 162 Tex. 599, 611 350 S.W.2d 11, 19 (1961) (“[T]here is only one final judgment
which is entered after all claims and issues involved in the suit have been tried.”).

The Supreme Court’s decision in Schexnider also requires us to reject Kolb’s contention.  In that case, the
plaintiffs filed a medical malpractice suit against thirty-one doctor defendants, among others.  940 S.W.2d at
595.  When the doctors moved for summary judgment, the plaintiffs nonsuited all but two before the court
ruled on their motions.  Id.  After the court granted a final summary judgment in favor of the remaining
defendants, all of the defendants—including those who had been nonsuited—moved for sanctions against the
plaintiffs under Rule 13 of the Texas Rules of Civil Procedure.  Id.  While the trial court retained plenary
jurisdiction, it held an evidentiary hearing and ruled on the motion, ordering the plaintiffs’ attorney to pay
$25,000 in sanctions to the nonsuited defendants.  Id.  The Court upheld the sanctions order on jurisdictional
grounds, holding that a trial court acting within its plenary jurisdiction has the authority to impose sanctions
even when a motion for sanctions is filed after the nonsuit.  Id. at 596–97; see In re Bennett, 960 S.W.2d 35,
39–40 (Tex. 1997).[7]  

The trial court did not enter a final judgment until March 15, 2006, when it signed the summary judgment
order dismissing Berger’s claims against King.  The court undeniably had plenary jurisdiction when it signed
the sanctions order on that same date.  The trial court therefore had jurisdiction to adjudicate the motion and
impose sanctions.

Conclusion

   Neither Berger nor Kolb meets the criteria for a restricted appeal.  Kolb’s collateral attack on the trial court’s
jurisdiction also fails.  We therefore affirm the judgment of the trial court.  



                                                   Jane Bland

                                                   Justice



Panel consists of Justices Nuchia, Hanks, and Bland.



--------------------------------------------------------------------------------

[1] King apparently set the motion for submission several times.  Only the third amended notice of submission
is material to this appeal.



[2] The court noted: “Obviously, I am reluctant to grant a summary judgment where there is doubt in the
record about whether it was properly served on the opposing party.”



[3] Kolb claims he did not receive a copy of this letter.  



[4] The notice of appeal names Carl J. Kolb, P.C. as a party.  The trial court’s sanctions order, however,
imposes sanctions only on Carl Kolb individually.  Carl J. Kolb, P.C. is not aggrieved by the trial court’s order
or judgment and thus has no standing in this appeal.  



[5] Kolb and Berger indicate some concern about whether the correct trial court cause number appears on
their notice of appeal, noting that the trial court signed severance orders and assigned new cause numbers to
the summary judgment and the sanctions order.   The cause number contained in their notice of appeal is
correct.  The severance motions were filed, and the corresponding orders signed, more than thirty days after
the summary judgment and sanctions order.  By that time, the trial court had lost its plenary power over the
case.  See Tex. R. Civ. P. 329b(d). Consequently, the severance orders and the cause numbers assigned by
them are void and not appealable.  Accord In re Funding Group, Inc., No. 03-06-00041-CV (Tex. App.—Austin
Mar. 10, 2006, orig. proceeding) (mem. op.) (directing trial court to set aside severance order because court
had no jurisdiction to issue it after plenary power expired); see also State ex rel. Latty v. Owens, 907 S.W.2d
484, 486 (Tex. 1995) (“Judicial action taken after the court’s jurisdiction over a cause has expired is a
nullity.”); In re T.G., 68 S.W.3d 171, 177 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (appellate court
may declare void any orders signed after trial court lost plenary power).



[6] Rule 166a of the Texas Rules of Civil Procedure requires that a party serve notice of a summary judgment
hearing on opposing counsel at least twenty-one days before the hearing date.  Tex. R. Civ. P. 166a(c).   



[7] Kolb suggests that the rule of Schexnider would have permitted the trial court to adjudicate Lee’s sanctions
motion only if it had been pending when the court signed the order of non-suit dismissing Lee’s claims.   To
the contrary, the Supreme Court expressly disavowed that position, observing that nothing in Texas Rule of
Civil Procedure 162 or any of its previous decisions deprives a trial court of the power to act on motions filed
after a nonsuit while it retains plenary power.  Scott & White Mem’l Hosp. v. Schexnider, 940 S.W.2d 594, 596
(Tex. 1996).
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Opinion issued May 24, 2007



























In The

Court of Appeals

For The

First District of Texas







NO. 01-06-00458-CV







DAVID C. HICKMAN, Appellant



V.



ROYCE DUDENSING, Appellee







On Appeal from the 155th District Court

Austin County, Texas

Trial Court Cause No. 2002V-0088









MEMORANDUM OPINION



   In this construction-defect case, David Hickman appeals an adverse take-nothing judgment on a jury
verdict in favor of appellee, Royce Dudensing.  Hickman sued Dudensing for violations of the Deceptive
Trade Practices-Consumer Protection Act (“DTPA”)[1] and breach of contract, alleging that he failed to
remodel Hickman’s residence in a good and workmanlike manner.  On appeal, Hickman contends (1) the fact
that Dudensing did not perform in a good and workmanlike manner is established as a matter of law by the
judicial admissions or quasi-admissions of Dudensing and his employees, (2) the evidence is legally and
factually insufficient to support the jury’s verdict, and (3) the trial court erred in directing a verdict on his DTPA
claims on the basis of limitations.  We affirm.

Background

   Hickman purchased a cluster of adjoining buildings located in New Ulm, Texas, intending to renovate them
into a residence, an art studio, and a bed and breakfast.  The buildings were originally constructed in 1890.  
Hickman drew up blueprints and specification sheets for the remodeling work and asked Dudensing to bid on
the project.  The specification sheets provided in part as follows:

Work to Be Done:

-Caulk holes where needed

-Check windows/caulk – replace where needed

-Roof: repair leaks, remove rust (?) seal with colored paint/sealer

-Paint exterior walls and trim

*Fix exterior wall of back building (west end)

Put deck above tin roof off on second story.  Steps down to
yard                                                                                                                                                                      
                                                                                                                                                                             
                                                                                                                                                                             
                from deck

-Repair, seal, paint metal roofs



Dudensing inspected the property and informed Hickman that he could not guarantee that the roof would stop
leaking because “you can’t take an old roof and try to make it where it’s preventable from leaking.”  He
suggested installing a new roof, but Hickman refused because he “liked the old style of the metal design
roof.”  Dudensing testified that he insisted on installing a new roof, but Hickman “said no because . . . money
wasn’t available and he wanted to keep the old style.  He insisted we fix it the best we could, and try to get all
the leaks fixed we could.”

The parties subsequently signed a contract for the remodeling work.  Hickman agreed to pay Dudensing
$75,419, and Dudensing agreed to perform the renovations in a good and workmanlike manner.  Dudensing
completed the project in March 1998.  

A month later, Hickman sent Dudensing a thank-you letter complimenting his work.  Hickman testified that,
even though he had noticed some cracks in the exterior walls by the time he wrote the letter, overall he
thought Dudensing had done a good job, and “the building looked good” when he moved in.  Over the course
of the next several months, however, Hickman testified that the building began to deteriorate.  The roof
started leaking, and Hickman eventually had to use fifty-nine buckets to catch water from the leaks.  The
exterior paint began to peel in places, and the building developed more cracks.  The exterior steps swayed so
badly that Hickman had to repair them himself.  Hickman testified that he and his wife could feel “a breeze
coming . . . through the walls and around the trim” of the stained glass windows that Dudensing had installed.

While shopping in a neighboring town in April 1998, Hickman saw Dudensing’s wife and told her that there was
a problem with the roof that he needed to discuss with Dudensing.  Dudensing failed to respond.  He did,
however, fix the plumbing on a bathtub that had ruptured in April 1998.  After that point, Hickman testified that,
with the exception of two occasions when Dudensing sent workers to fix some electrical wiring, plumbing, and
the roof, Dudensing failed to respond to the numerous messages he and Mrs. Hickman left regarding repairs
from 1999 until 2001.  Mrs. Hickman testified that she called Mrs. Dudensing for the final time regarding
repairs in February 2001.  Mrs. Dudensing told Mrs. Hickman to “quit harassing them and leave them alone.”  
At that point, the Hickmans realized that Dudensing was not going to perform any additional repairs.  Hickman
sued Dudensing for DTPA violations and breach of contract in November 2002, four years after he first
noticed the various problems.

At the conclusion of Hickman’s case-in-chief, Dudensing moved for a directed verdict on the basis of
limitations.  The trial court denied the motion with respect to Hickman’s breach of contract claim, which has a
four-year statute of limitations,[2] but instructed a verdict on the DTPA claims, which have a two-year statute
of limitations.[3]

Dudensing then presented his case-in-chief.  He testified that he performed the renovations in a good and
workmanlike manner, and that the roof began to leak because “the metal [wa]s over 50, 60 years, maybe
older.  And ain’t much you can do with metal like that.  You can try to do your best and, you know, four, five
years, they can go to rusting further and leaking.”  He testified that he used the best primer and paint
available, but the paint nonetheless began to peel in places because “[s]ome . . . old wood will not hold paint, I
don’t care what you do to it. . . .   If the wood is that old and . . . in that kind of condition, you can expect it to
peel after a period of time.”  He further testified that some boards began to crack after he painted them
because of weather conditions: “If you got any cracks, it comes from the weather . . . .  It does not come from
workmanship, it does not come from paint.  It comes from the weather.”  Several of Dudensing’s workers
similarly testified that they performed the renovations in a good and workmanlike manner and that problems
arose because of the building’s age—not because of poor workmanship.

The jury found that Dudensing did not fail to comply with his obligation under the contract to remodel the
property in a good and workmanlike manner.  The trial court subsequently entered a take-nothing judgment
against Hickman and this appeal followed.

Quasi-Admissions

   In his first and second issues, Hickman contends the fact that Dudensing failed to remodel the property in a
good and workmanlike manner is established as a matter of law by the judicial admissions or quasi-
admissions of Dudensing and his employees.  Specifically, Hickman points to Dudensing’s testimony that
some of the paint peeled off before a reasonable period of time and that he did not employ a licensed
electrician or plumber, even though he represented that he would.  Hickman also notes that Dudensing’s
employees testified that the paint was peeling badly, that the roof rusted sooner than it should have, and that
stairs should not shake from side to side.

   A “true judicial admission” is “a formal waiver of proof usually found in pleadings or the stipulations of the
parties.  A judicial admission is conclusive upon the party making it, and it relieves the opposing party’s
burden of proving the admitted fact, and bars the admitting party from disputing it.”  Mendoza v. Fid. & Guar.
Ins. Underwriters, Inc., 606 S.W.2d 692, 694 (Tex. 1980).  “Quasi-admissions,” on the other hand, are “a party’
s testimonial declarations which are contrary to his position . . . .  They are merely some evidence, and they
are not conclusive upon the admitter.  The weight to be given such admissions is decided by the trier of fact.”  
Id. (internal citations omitted).

   On occasion, however, as a matter of public policy, a party’s testimonial quasi-admission will preclude
recovery if it meets certain requirements set forth by the Texas Supreme Court in Mendoza.  Id.  “The public
policy underlying this rule is that it would be unjust to permit a party to recover after he has sworn himself out
of court by clear, unequivocal testimony.”  Id.  A quasi-admission will be treated as a judicial admission if the
following factors are met: (1) the declaration was made during the course of a judicial proceeding; (2) the
statement is contrary to an essential fact embraced in the theory of defense asserted by the person giving the
testimony; (3) the statement is deliberate, clear, and unequivocal; (4) giving conclusive effect to the
declaration will be consistent with the public policy upon which the rule is based; and (5) the statement is not
also destructive of the opposing party’s theory of recovery.  Id.

Dudensing’s Testimony

   We first note that, contrary to Hickman’s contention, Dudensing did not make any sort of formal judicial
admissions.  He did not stipulate to anything, and Hickman does not point to any formal waiver of proof found
in Dudensing’s pleadings.  See id.  Rather, the testimony upon which Hickman relies constitutes, at most, a
quasi-admission.  See id.  As such, we must determine whether it satisfies the five-prong Mendoza test for
treating a quasi-admission as a judicial admission.  See id.

   Hickman relies upon three statements made by Dudensing.  The first is his testimony that some of the paint
peeled off before a reasonable period of time.  When read in context, however, this statement is not clear and
unequivocal and thus does not satisfy the Mendoza test.  See id.  Specifically, the entirety of Dudensing’s
testimony is as follows:

Q       And in your opinion, has some of that paint peeled off before a reasonable period of time?



A       Yes.  Some of it has, but then again, you look at some of the pictures, it looks good.  Paint still is good.  
Depends on which part of the building it is on, and it depends on what, which side the weather hit the most.



   Similarly, Dudensing’s testimony regarding the use of a licensed electrician and plumber is not clear and
unequivocal when read in context.  Though Dudensing admitted that he did not use a licensed electrician or
plumber, as he had represented he would, he also testified that the licensed electrician he had intended to
use turned down the job: “He wouldn’t mess with it.  He c[a]me by and looked at it [the building] and . . . he
turned it down.”  Dudensing testified that Hickman was present when the electrician declined to accept the job.

   The statements on which Hickman relies are merely isolated portions of Dudensing’s trial testimony that are
taken out of context.  When read in context, and when considered in light of the entirety of Dudensing’s
testimony that he performed the renovations in a good and workmanlike manner, we hold that these
statements are not “deliberate, clear, and unequivocal.”  See id. at 693, 695 (in worker’s compensation case,
holding that Mendoza’s testimony “that his physical condition was such that he was totally unable to work prior
to [a certain date]” was not deliberate, clear, and unequivocal because it did not “exclude the possibility that
his opinion was mistaken in that it may have comprehended factors other than his physical condition such as
his ability to obtain employment as a manual laborer or the availability of jobs in his community”); Drake v.
Spriggs, No. 13-03-429-CV, 2006 WL 3627716, at *3 (Tex. App.—Corpus Christi Dec. 14, 2006, no pet.)
(mem. op.) (holding that appellee’s statement during deposition that he had received funds to which he was
not entitled was not clear and unequivocal in light of entirety of deposition testimony, since appellee made
other statements defending his entitlement to funds).  As such, Dudensing’s testimony does not meet the
Mendoza test for treating a quasi-admission as a judicial admission.  See 606 S.W.2d at 694.  Accordingly,
the jury was free to determine the weight to give Dudensing’s statements.  See id.

Workers’ Testimony

   Hickman also asserts that certain statements made by Dudensing’s workers regarding peeling paint, rust
on the roof, and shaky stairs constitute quasi-admissions that meet the Mendoza test.  He does not cite any
authority to support his proposition that the testimonial declarations of a non-party witness may constitute
quasi-admissions binding on a party, and we have not found any.  To the contrary, quasi-admissions are “[a]
party’s testimonial declarations which are contrary to his position.”  Id. (emphasis added).  Hickman sued
Dudensing in his individual capacity, and none of the workers who testified are parties to the case.  We thus
reject Hickman’s contention that certain statements made by Dudensing’s workers constitute quasi-admissions.


Even were we to regard these statements as quasi-admissions, they do not meet the Mendoza test for the
same reason that Dudensing’s testimony does not meet the Mendoza test—none of the statements are
deliberate, clear, and unequivocal.  See id.  When read in context, and when considered in light of the entirety
of the workers’ testimony that they performed the renovations in a good and workmanlike manner, they do not
rise to the level of quasi-admissions that should be treated as judicial admissions.  See id.; Drake, 2006 WL
3627716, at *3.  As such, the jury was free to determine the weight to give these statements.  See Mendoza,
606 S.W.2d at 694.

Sufficiency of the Evidence

   In his third and fourth issues, Hickman contends that the evidence is legally and factually insufficient to
support the jury’s verdict, and that the trial court erred in denying his motion for judgment notwithstanding the
verdict or for a new trial.

Standard of Review

In a legal sufficiency challenge by a party with the burden of proof at trial, we examine the entire record to
determine if the contrary proposition is established as a matter of law.  See City of Keller v. Wilson, 168 S.W.
3d 802, 817, 825-26 (Tex. 2005) (entire record); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.
1989).  Only if the contrary proposition is established as a matter of law will we sustain the issue.  Sterner,
767 S.W.2d at 690.  The test for legal sufficiency is “whether the evidence at trial would enable reasonable
and fair-minded people to reach the verdict under review.”  City of Keller, 168 S.W.3d at 827.  In making this
determination, we credit favorable evidence if a reasonable fact-finder could, and disregard contrary evidence
unless a reasonable fact-finder could not.  Id.  So long as the evidence falls within the zone of reasonable
disagreement, we may not substitute our judgment for that of the fact-finder.  Id. at 822.  The trier of fact is
the sole judge of the credibility of the witnesses and the weight to give their testimony.  Id. at 819.  Although
we consider the evidence in the light most favorable to the challenged findings, indulging every reasonable
inference that supports them, we may not disregard evidence that allows only one inference.  Id. at 822.

   When a party attacks the factual sufficiency of an adverse finding on an issue on which he had the burden
of proof at trial, he must demonstrate on appeal that the adverse finding is against the great weight and
preponderance of the evidence.  Ulogo v. Villanueva, 177 S.W.3d 496, 499 (Tex. App.—Houston [1st Dist.]
2005, no pet.).  In reviewing a factual sufficiency point, we consider all the evidence supporting and
contradicting the finding.  Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).  We set aside
the verdict only if the finding is so against the great weight and preponderance of the evidence as to be
clearly wrong and unjust.  Ulogo, 177 S.W.3d at 499.  Jurors are the sole judges of the credibility of the
witnesses and the weight to give their testimony.  City of Keller, 168 S.W.3d at 819.  They may choose to
believe one witness and disbelieve another.  Id.

Charge Error

   As an initial matter, Hickman complains that the trial court erred in submitting a broad-form question to the
jury regarding whether Dudensing remodeled the property in a good and workmanlike manner.  He observes
that, “[a]lthough a practice of a global submission does streamline and simplify the issues submitted to the
jury, in some instances, such as this one, it leaves the parties in a position of wondering why certain obvious
evidence was apparently disregarded by the jury.”  He notes that some components of the project were
“good” and others were “bad,” but the global submission “did not allow the jury flexibility to answer partially
yes and partially no.  To allow the verdict to stand effectively allows the jury to ignore the portions of the job
that were not completed in a good and workmanlike manner because they, apparently, had been convinced
that some portions of the job were completed correctly.”

   If a party believes that the trial court’s charge to the jury is defective, he must make a timely and specific
objection pointing out the matter complained of and the grounds for the objection.  See Tex. R. Civ. P. 274 (“A
party objecting to a charge must point out distinctly the objectionable matter and the grounds of the
objection.  Any complaint as to a question, definition, or instruction, on account of any defect, omission, or
fault in pleading, is waived unless specifically included in the objections.”); City of Houston v. Kolb, 982 S.W.
2d 949, 956 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).  If the objection does not fully comply with
the requisites of Rule 274, the party waives the complaint.  Kolb, 982 S.W.2d at 956 (citing Castleberry v.
Branscum, 721 S.W.2d 270, 276 (Tex. 1986)).

   Here, Hickman’s only objection to the charge was that it failed to include a DTPA question.  Hickman did not
object to the charge on the ground that it was an improper broad-form submission.  Accordingly, we hold that
Hickman has waived any error concerning the broad-form submission of the breach of contract question.  See
id.

Legal and Factual Sufficiency

   Hickman contends there is insufficient evidence to support the jury’s finding that Dudensing remodeled the
property in a good and workmanlike manner.  To support his argument, Hickman relies on the same testimony
discussed previously—namely, Dudensing’s observation that the paint was peeling in places, and Dudensing’
s workers’ testimony regarding shortcomings with the work.

   The jury charge defines “good and workmanlike manner” as “that quality of work performed by one who has
knowledge, training or experience necessary for the successful practice of a trade or occupation and
performed in a manner generally considered proficient by those capable of judging such work.”  Though the
jury heard testimony from Dudensing and his workers that the paint was peeling badly in places and that
portions of the roof rusted sooner than they should have, it also heard qualifying testimony from these
witnesses that “some [old] lumber will not hold paint” and “you can’t guarantee an old roof.”  In particular,
Dudensing testified that he repeatedly advised Hickman that he should install a new roof because the old roof
would become rusty and begin leaking within a few years, but Hickman insisted on keeping the old design
because he liked it and could not afford to pay for a new roof.[4]

With respect to the peeling paint, Dudensing testified that he used “the best” primer and paint available, and
he “prepared[d] the surface according to the specs of the plan, [but] some of these old materials will not hold
paint.  Some lumber will not hold paint.  Some metal will never hold paint. . . .  I don’t care what you do to it. . .
.  If the wood is that old and . . . in that kind of condition, you can expect it to peel after a period of time.”  He
further testified that the cracks in the boards “c[a]me[] from the weather . . . .  [They] do[] not come from
workmanship, [they] do not come from paint.  [They] come[] from the weather.”  He also testified that the
exterior stairs were safe because he and his workers used them repeatedly to carry decking materials to the
top story.

Dudensing’s workers similarly testified that the roof ought to have been replaced,[5] that paint often will not
stick to old wood, and that even when a window is installed properly, there will still be “[s]ome air coming
through it” because “the wood will swell up . . . and shrink.”  Moreover, when asked whether they remodeled
the property in a good and workmanlike manner, Dudensing and his workers unequivocally testified that they
did.[6]

   Although the jury heard contradictory testimony from the Hickmans, the jury, as fact-finder, was free to
disbelieve the Hickmans’ testimony and instead believe Dudensing’s testimony that he remodeled the property
in a good and workmanlike manner, and that the ensuing problems were not due to poor workmanship, but
instead to the age and condition of the building.  See Barnett v. Coppell N. Tex. Court, Ltd., 123 S.W.3d 804,
823 (Tex. App.—Dallas 2003, pet. denied) (holding that jury is exclusive judge of witness credibility and weight
to give conflicting testimony in deciding whether contractor performed in good and workmanlike manner).[7]

   Viewing the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient
to support the jury’s finding that Dudensing did not fail to comply with his obligation to remodel the property in
a good and workmanlike manner.  See Tacon Mech. Contractors, Inc. v. Grant Sheet Metal, Inc., 889 S.W.2d
666, 673–74 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (holding that evidence was legally sufficient
to support jury’s verdict that contractor performed in good and workmanlike manner where he maintained
adequate staff on each project, provided adequately experienced personnel, adequately supervised his
crews, and his crews performed their assigned tasks as well as they could).  Moreover, considering all the
evidence supporting and contradicting the finding, we cannot say the jury’s finding is so against the great
weight and preponderance of the evidence as to be clearly wrong and unjust.  See Ulogo, 177 S.W.3d at
499.  We therefore hold that the evidence is factually sufficient to support the jury’s finding that Dudensing did
not fail to comply with his obligation to remodel the property in a good and workmanlike manner.  Given the
sufficiency of the evidence to support the jury’s verdict, we conclude that the trial court did not err in denying
Hickman’s motion for judgment notwithstanding the verdict or for a new trial.

DTPA Directed Verdict

   In his final issue, Hickman contends the trial court erred in directing a verdict on his DTPA claims on the
basis of limitations.  He asserts that “[t]he Courts have recognized that a continuing misrepresentation is
arguably a basis for negating an otherwise valid statute of limitations defense.”  He points out that Dudensing
continued to send workers to his residence to fix various defects, and it was not until February 2001 that it
became clear Dudensing was not going to correct any additional problems.  Hickman notes that he filed suit in
November 2002, less than two years after Dudensing’s misrepresentations ceased.

   The statute of limitations for Hickman’s DTPA claims is provided by section 17.565 of the Texas Business
and Commerce Code, which incorporates a discovery rule.  See Tex. Bus. & Com. Code Ann. § 17.565
(Vernon 2002); J.M. Krupar Constr. Co. v. Rosenberg, 95 S.W.3d 322, 329 (Tex. App.—Houston [1st Dist.]
2002, no pet.).  DTPA claims must be brought

within two years after the date on which the false, misleading, or deceptive act or practice occurred or within
two years after the consumer discovered or in the exercise of reasonable diligence should have discovered
the occurrence of the false, misleading, or deceptive act or practice.  The period of limitation . . . may be
extended for a period of 180 days if the plaintiff proves that failure timely to commence the action was caused
by the defendant’s knowingly engaging in conduct solely calculated to induce the plaintiff to refrain from or
postpone the commencement of the action.



Tex. Bus. & Com. Code Ann. § 17.565.

   The general rule in construction-defect cases is that “limitations begin to run when an owner becomes
aware of property damage.”  J.M. Krupar, 95 S.W.3d at 329–30 (citing Ben Fitzgerald Realty Co. v. Muller,
846 S.W.2d 110, 118–19 (Tex. App.—Tyler 1993, writ denied) (limitations began when damages began to
show on the house); Hanmore Dev. Corp. v. JBK Enters., 776 S.W.2d 738, 740 (Tex. App.—Corpus Christi
1989, writ denied) (limitations began when owner first discovered roof leak); Tenowich v. Sterling Plumbing
Co., 712 S.W.2d 188, 189–90 (Tex. App.—Houston [14th Dist.] 1986, no writ) (limitations began when owner
discovered leaks in pipe)).  “Moreover, well-settled Texas precedent . . . holds that repairs performed by a
defendant do not toll the discovery rule for plaintiffs and, thus, do not extend limitations.”  Hixon v. Tyco Int’l,
Ltd., No. 01-04-01109-CV, 2006 WL 3095326, at *8 (Tex. App.—Houston [1st Dist.] Oct. 31, 2006, no pet.)
(mem. op.) (citations omitted); see also Dean v. Frank W. Neal & Assocs., Inc., 166 S.W.3d 352, 360 (Tex.
App.—Fort Worth 2005, no pet.) (“An unsuccessful effort to make repairs does not toll the statute of
limitations for purposes of determining when a cause of action accrued.”).  Here, Hickman was aware of
property damage by April 1998, when he informed Dudensing’s wife that he needed to speak with Dudensing
regarding roof problems.  Hickman did not file suit until November 2002—well beyond the two-year statute of
limitations.

   Hickman nonetheless contends that his suit is timely and relies on W.M. Riddick v. Quail Harbor
Condominium Association, Inc. for the proposition that “Courts have recognized that a continuing
misrepresentation is arguably a basis for negating an otherwise valid statute of limitations defense.”  7 S.W.3d
663 (Tex. App.—Houston [14th Dist.] 1999, no pet.).  In Riddick, our sister court held that Riddick’s cause of
action under the DTPA accrued when Riddick “first discovered the cracks in the walls.”  Id. at 671.  Though
Riddick argued in his brief that Quail Harbor had made “continuing misrepresentions” to him in the form of
promises to fix the foundation problem, and that limitations should therefore be tolled, our sister court rejected
Riddick’s argument, holding that he waived it by failing to present it to the trial court.  Id. at 671, 678.  In
determining whether Riddick’s contention was groundless for the purpose of awarding Quail Harbor its
attorney’s fees under the DTPA,[8] however, our sister court noted that the claim, although not proven, was
“arguable.”  Id. at 677–78.  The court therefore reversed the trial court’s award of attorney’s fees to Quail
Harbor.  Id. at 679.

   Determining whether a claim is groundless for the purpose of imposing sanctions is different from
determining whether a party should prevail on that claim.  The limitations statute, section 17.565, does not
impose any sort of statutory tolling for continuing misrepresentations or for a failure to complete repairs.  See
Tex. Bus. & Com. Code Ann. § 17.565.  Though the statute includes a 180-day tolling provision if the plaintiff
is able to prove that the defendant knowingly engaged in conduct calculated solely to induce the plaintiff to
delay filing suit, Hickman does not rely on this section of the statute.  See id.  Nor does he raise the issue of
fraudulent concealment.[9]  Rather, his brief deals solely with whether Dudensing’s continuing representations
that he would perform repairs are “a basis for negating an otherwise valid statute of limitations defense.”

   The Texas Supreme Court has not recognized, in the absence of fraud or fraudulent concealment,
equitable tolling for either the failure to complete repairs or for continuing misrepresentations regarding
repairs, and we decline to do so.  See Hixon, 2006 WL 3095326, at *8 (“The Hixons cite no authority that
authorizes delay of discovery of a liability cause of action against a defendant until refusal to continue repair
occurs, and we know of none.  [Thus, t]he Hixons are . . . mistaken in contending that they had no cause of
action against [appellees] until these entities ‘refused outright’ to continue repairs . . . .”); see also Pako Corp.
v. Thomas, 855 S.W.2d 215, 219 (Tex. App.—Tyler 1993, no writ) (“Neither the attempts to repair, nor
[appellee]’s representatives’ assurances of the success of the efforts, toll the running of the statute of
limitations.”).  We therefore hold that the trial court did not err in granting a directed verdict on Hickman’s
DTPA claims on the basis of limitations.

Conclusion



   We affirm the judgment of the trial court.



                                                   Jane Bland

                                                   Justice



Panel consists of Chief Justice Radack and Justices Jennings and Bland.



--------------------------------------------------------------------------------

[1] Tex. Bus. & Com. Code Ann. §§ 17.41, 17.46 (Vernon 2002 & Supp. 2006).

[2] Tex. Civ. Prac. & Rem. Code Ann. § 16.004 (Vernon 2002).



[3] Tex. Bus. & Com. Code Ann. § 17.565 (Vernon 2002).



[4] Specifically, Dudensing testified as follows: “[W]e talked about putting a new roof on, but he wanted the old
design kept on the roof because he liked the old design.  And like we told him from the beginning, it’s going to
leak if you . . . leave the roof the way it is.  You can put a new roof on it, it would cost 25, $30,000.  It would
have solved the problem.  But he wanted to keep the old design.  And you can’t guarantee an old roof, if you .
. . keep that kind of design [t]hat is on the roof.  And the metal is over 50, 60 years, maybe older.  And ain’t
much you can do with metal like that.  You can try to do your best and, you know, four, five years, they can go
to rusting further and leaking.”



[5] In particular, Chris Supak, one of Dudensing’s workers, testified as follows:

Q         That roof wasn’t that bad, was it?

A         The roof was bad.  We had to crawl up there and . . . prior to painting, we asked him, are you kidding
us?  You need a new roof on this thing.”



[6] For example, when asked whether “the work that you did and that you saw while you were there” was
performed in a good and workmanlike manner, Supak responded, “Yes, sir.  Like if it was your own.”



[7] Hickman notes that, at one point during the trial, jurors notified the court that “Mrs. Hickman [wa]s
distracting them with her reaction to the witness.”  He urges that, “[i]f the jury did not like the looks or actions
of a particular party, witness or attorney, it still should not be permitted to disregard evidence.”  The jury,
however, is the exclusive judge of the credibility of the witnesses and the weight to give their testimony.  
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); Barnett v. Coppell N. Tex. Court,
Ltd., 123 S.W.3d 804, 823 (Tex. App.—Dallas 2003, pet. denied).  Because the jury is in a position to observe
“the mannerisms, the facial expressions and the verbalizations of the various parties and witnesses in court
before [it],” it is “free to reject” a witness’s testimony based upon its observation of the witness’s demeanor
and attitude.  Silva v. Enz, 853 S.W.2d 815, 818 (Tex. App.—Corpus Christi 1993, writ denied) (citing
Greenway Bank & Trust v. Smith, 679 S.W.2d 592, 598 (Tex. App.—Houston [1st Dist.] 1984, writ ref’d n.r.
e.)); Davis v. McQueen, 842 S.W.2d 376, 386 (Tex. App.—Beaumont 1992, writ denied).



[8] Texas Business and Commerce Code section 17.50(c) provides that a defendant is entitled to recover its
attorney’s fees in defending a DTPA claim if it shows that the claim is “groundless in fact or law or brought in
bad faith, or brought for the purpose of harassment.”  Tex. Bus. & Com. Code Ann. § 17.50(c) (Vernon Supp.
2006).



[9] Fraudulent concealment estops a defendant from relying on limitations as an affirmative defense.  
Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983); Winn v. Martin Homebuilders, Inc., 153 S.W.3d 553, 557
(Tex. App.—Amarillo 2004, pet. denied).  The elements of fraudulent concealment are: (1) the existence of an
underlying tort, (2) the defendant’s knowledge of the tort, (3) the defendant’s use of deception to conceal the
tort, and (4) the plaintiff’s reasonable reliance on the deception.  Winn, 153 S.W.3d at 557.  Fraudulent
concealment tolls the running of limitations “because the defendant has concealed from the plaintiff facts
necessary for the plaintiff to know that he has a cause of action against the defendant.”  Id. at 556–59
(analyzing fraudulent concealment claim in context of homebuilder’s assurances to plaintiffs that “there was
nothing wrong with the construction of their home and the defects they observed were due to natural settling
of the foundation”); see also Hixon v. Tyco Int’l, Ltd., No. 01-04-01109-CV, 2006 WL 3095326, at *9 (Tex. App.
—Houston [1st Dist.] Oct. 31, 2006, no pet.) (mem. op.) (analyzing fraudulent concealment claim in context of
contractors’ assurances that “there were no remaining problems with the house”).  Here, Hickman does not
argue that Dudensing actively assured him that there were no problems with the building.  To the contrary, he
asserts that Dudensing acknowledged that the building had problems and continuously represented that he
would fix them, but failed to do so.
==================================

4. Rule 13 sets forth the sanctions available to the trial court for the filing of frivolous pleadings by parties and
their counsel. Tex. R. Civ. P. 13.

=======================================




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