Opinion
No. 05-04-00947-CV
Opinion Filed June 29, 2005.
On Appeal from the 382nd Judicial District Court, Rockwall County, Texas, Trial Court Cause No. 1-00-451.
Affirm.
Before Justices O'NEILL, RICHTER, and FRANCIS.
MEMORANDUM OPINION
Appellants Hasan Rabah and Milena Rabah brought suit against several parties, including appellee Frank L. Avent, following their purchase of Avent's house. Appellants are appealing only the trial court's take-nothing judgment with respect to their breach of contract claim against Avent. We affirm the judgment of the trial court.
BACKGROUND
Appellants offered to purchase the house owned by Avent on the express condition that Avent repair a number of defects listed in an inspection report. Avent rejected appellants' first proposal, which included (1) reapplication of portions of the roof and provision of a ten-year warranty or, alternatively, (2) replacement of the entire roof. After further negotiations, the parties agreed that Avent would replace or repair several specific items. After the statement "seller shall at seller's expense repair or replace the following," the document listed heating units, cooling units, plumbing, and hot water heaters, among other things, along with the action to be taken and the provision "subject to American Home Shield." However, the agreement did not merely list the roof as an item to be repaired or replaced in the same manner as it listed the other items. Instead, the printed agreement stated: "Roof replaced approximately 1½ years ago and has a 5 year warranty which is transferable to new owner." The following was written in by hand: "Copy of warranty to be provided to Buyers." The Seller Disclosure Notice, which was incorporated into the contract, stated that the warranty on the roof applied only to the flat areas of the roof.
After closing, Avent provided appellants with a five-year warranty, which was actually non-transferrable. When the roofing company refused to repair the leaks in the roof, appellants made demand upon Avent to make the repairs. He refused. Appellants subsequently filed suit against Avent, alleging, among other things, breach of contract, common law fraud, fraud in a real estate action, and violations of the Texas Deceptive Trade Practices Act.
Appellants' claims were tried before a jury. Prior to the submission of the jury charge, appellants objected to Questions 1 and 2. Question 1 asked if the agreement between appellants and Avent required Avent to repair or replace the heating units, the cooling units, the plumbing, the hot water heaters, and the swimming pools regardless of the coverage provided by the American Home Shield. Question 2, which was predicated on answering any part of Question 1 in the affirmative, asked if Avent failed to comply with the agreement.
Appellants requested that the trial court include another section under Question 1 regarding the roof: "Did the agreement require Avent to provide a warranty for the entire roof?" And they requested that Question 2 not be predicated on affirmative answers to Question 1 and that the jury be instructed that the agreement could have also been breached by Avent's failure to comply with any of the terms of the agreement, not just those enumerated in Question 1. The trial court overruled the objections, refused each of appellants' requests, and submitted the charge to the jury.
Because the jury did not answer any portion of Question 1 affirmatively, it did not answer Question 2. Question 3, which was predicated upon an affirmative answer to Question 2, asked for the amount of damages to be awarded to compensate appellants for costs of repairs and out-of-pocket expenses. Accordingly, the jury did not answer Question 3 either. The majority of the remaining jury questions addressed the issue of fraud. The jury also found that Avent did not commit fraud against the appellants.
Appellants filed a motion for judgment notwithstanding the verdict and/or motion to disregard some of the jury's findings. Appellants asserted that uncontroverted evidence at trial established that Avent failed to comply with the real estate contract by not providing the warranty for the roof. They further argued that "disregarding the jury's answer to Question No. 2 is proper" and that a new trial is necessary to determine what damages were caused by Avent's failure to comply. The trial court denied the motion and signed a final judgment, which denied appellants all relief sought against Avent.
This appeal ensued. In three issues, appellants claim that the trial court erred in denying their JNOV motion and in submitting Questions 1 and 2 to the jury. Avent raises a cross point of error regarding attorney's fees.
ISSUE 3: JURY QUESTIONS 1 and 2
Appellants contend that the trial court's instructions to Questions 1 and 2 prevented the jury from determining that Avent failed to comply with the agreement to provide a transferrable warranty on the roof. According to appellants, this constituted harmful error. We disagree.
Litigants are entitled to have controlling and disputed fact issues submitted to the jury. Bel-Ton Elec. Serv. v. Pickle, 915 S.W.2d 480, 481 (Tex. 1996). A controlling issue is one that requires a factual determination to render judgment in the case. Lehmann v. Wieghat, 917 S.W.2d 379, 382 (Tex.App.-Houston [14th Dist.] 1996, pet. denied). A fact issue that is established with uncontroverted evidence and is not in dispute should not be submitted to the jury. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 223 (Tex. 1992).
Here, under the terms of the agreement, Avent's only contractual obligation regarding the roof was to provide a copy of the warranty to appellants. It was undisputed that Avent did so. Thus, the record shows that Avent did comply with the agreement with respect to the roof. Accordingly, the trial court properly excluded the issue concerning the roof from the jury charge.
We overrule appellants' third issue.
ISSUES 1 AND 2: JNOV
Appellants claim that the trial court erred in denying their JNOV motion. We disagree.
A motion for JNOV is one of the vehicles by which a party challenges the legal sufficiency of the evidence to support a jury finding. Brush v. Reata Oil Gas Corp., 984 S.W.2d 720, 725 (Tex.App.-Waco 1998, pet. denied). A trial judge may properly grant a JNOV when there is no evidence to support one or more of the jury's findings of fact necessary to the judgment. Mancorp, Inc. v. Culpepper, 802 S.W.2d 226, 227 (Tex. 1990). A jury's answer to a question should be disregarded when there is no evidence to support it. Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003). More than a scintilla of evidence exists if the record reveals some probative evidence to support the verdict, no matter how small. Richardson v. Wal-Mart Stores, Inc., 963 S.W.2d 162, 164 (Tex.App.-Texarkana 1998, no pet.).
Although appellants framed their complaint in terms of a JNOV motion, their actual complaint is not that the evidence did not support the jury's findings; in fact, the jury made no findings with respect to Questions 2 and 3. Instead, appellants base their complaint on their view that the trial court's jury charge incorrectly omitted the issue of the roof, which they assume would have required the jury to respond to Questions 2 and 3. We have already concluded that the trial court properly excluded the issue of the roof from the jury charge.
Because appellants did not properly challenge the legal sufficiency of the evidence to support a jury finding, we conclude that the trial court did not err in its denial of the JNOV motion. We overrule appellants' first and second issues.
AVENT'S CROSS POINT: ATTORNEY'S FEES
Avent contends that the trial court erred by not allowing him to offer proof of reasonable attorney's fees. We will not consider Avent's cross point because he failed to file a notice of appeal and fails to show good cause why he did not file a notice of appeal. See Tex.R.App.P. 25.1; Richardson Indep. Sch. Dist. v. GE Capital Corp., 58 S.W.3d 290, 292 (Tex.App.-Dallas 2001, no pet.) (appellate court may not grant party greater relief than given by trial court when party fails to file a notice of appeal, absent a showing of good cause). Accordingly, we overrule Avent's sole cross point of error.
CONCLUSION
Having overruled appellants' three issues as well as Avent's cross point, we affirm the judgment of the trial court.