Opinion
No. 05-04-00124-CV
Opinion Filed June 22, 2005.
On Appeal from the 382nd District Court, Rockwall County, Texas, Trial Court Cause No. 1-02-300.
Affirm.
Before MORRIS, O'NEILL, and LANG.
MEMORANDUM OPINION
Michael and Caprice Swiercinsky appeal the take-nothing judgment against them in their suit against Nationwide Insurance Enterprise concerning their claim for mold damage to their house. They challenge the factual sufficiency of evidence to support the jury's findings (1) that the house did not diminish in value as a result of mold damage occurring during the policy period, and (2) that the mold damage did not make the house untenantable. We conclude the challenged jury findings were not against the great weight and preponderance of the evidence and thus affirm.
Facts
The Swiercinskys sought $150,000 in damages to their house, their alleged loss as a result of mold damage during the period covered by the Nationwide homeowner's insurance policy, from July 1999 through July 2001. The jury found the house was "physically damaged by mold" occurring during the policy period. When asked the difference in the actual cash value of the damage to the house, comparing the value immediately before and immediately after the mold damage, the jury answered "$0." The jury also found that mold damage did not make the house untenantable.
The Swiercinskys filed a motion for new trial challenging the factual sufficiency of the these two findings, which the trial court denied. The Swiercinskys raise these two issues on appeal.
Standard of Review
When a party with the burden of proof challenges the factual sufficiency of the evidence to support a finding, that party must show on appeal that the adverse finding is "so against the great weight and preponderance of the evidence that is it clearly wrong and unjust." Dow Chemical Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In reviewing for factual sufficiency, we weigh all of the evidence. Id.
As factfinder, the jury is the sole judge of credibility of the witnesses and the weight to be given to testimony. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The uncontradicted testimony of an interested witness cannot be considered as doing more than raising an issue of fact unless that testimony is clear, direct, and positive, and there are no circumstances in evidence tending to discredit or impeach such testimony. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). The factfinder may resolve inconsistencies in the testimony of any witness. Id. Diminishment in Value
The jury answered "yes" to the question that the house was physically damaged by mold that occurred during the policy period. They also answered "yes" to the question that water damage proximately caused the mold, but found the diminishment in value of the house was "$0." For the jury to find the house had diminished in value as a result of the mold occurring during the policy period requires evidence of the value of the house both before the mold damage and after that damage. Michael Swiercinsky provided the only evidence of the value of the house. Although not an expert, as the owner of the house he was entitled to testify as to market value of his own property. Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984).
Swiercinsky testified that shortly before the end of the policy, he sold the house for $150,000, after full disclosure of the mold damage. Thus there is evidence that the fair market value of the house-after the mold damage-was $150,000. Swiercinsky testified that, based on his own investigation of comparable values in the area and from his realtor's suggestion, the house was worth $300,000 without mold damage. He subtracted an estimated $150,000 in remediation costs to remove the mold, to derive the alleged amount of loss in actual cash value of $150,000.
Even assuming Swiercinsky's non-expert testimony constituted evidence of the hypothetical baseline value of the house without mold growth, the jury was free to discount Swiercinsky's testimony that a mold-free house at the beginning of the policy was worth $300,000. Golden Eagle Archery, 116 S.W.3d at 761 (factfinder is sole judge of credibility and weight of testimony).
The question whether a non-expert can testify to a hypothetical fair market value was not briefed. Because we affirm the jury's nonfinding of damages, we need not reach the issue whether in this case expert testimony was required to establish a hypothetical value of the real estate.
There was ample testimony to dispute the value of the house at the beginning of the policy period. In Swiercinsky's cross-examination, it was revealed that he had sought similar damages in a suit against the previous owner of the house, among others, for undisclosed water damage. Although Swiercinsky asserted that such damage was remediated before the policy period, the jury had before it contradictory evidence. Indeed, that evidence supports the finding that mold occurring during the policy period did not diminish the value of the house as it stood at the beginning of the policy period. As noted, the jury question asked what the difference in actual cash value was, as measured immediately before and immediately after the mold damage that occurred during the policy period. The instruction to the question stated, "Do not award any amount of money for loss of actual cash value caused by mold damage" that existed before the beginning of the Nationwide policy.
The evidence includes a contractor's bid, solicited by Swiercinsky himself, dated May 1999, just two months before the policy period began. That bid detailed how water-damaged wood comprised nearly two-thirds of the structure. On the day of observation, at least two inches of water stood under the house, despite fair weather. As a result the existing air-conditioning system had been contaminated, as the crawl space under the house served as the return air system, "which poses a health problem due to the amount of mold and mildew present." There were signs that some air ducts had stood in water up to four inches deep. The estimate to correct the identified problems and repair all property was "between $100,000 and $150,000."
As noted, according to Swiercinsky's own formulation, the supposed loss in actual cash value of the house was the equivalent of an estimated $150,000 cost to remediate mold damage occurring during the policy. Given evidence that the remediation cost was already $150,000 before the policy period, the jury could infer that the Swiercinskys suffered no further loss in value of the house during the policy period. Accordingly, the Swiercinskys have failed to show that the jury's finding of no diminished value was against the great weight and preponderance of the evidence.
Untenantability
The jury answered "no" to the question whether the mold damage made the dwelling "untenantable." The jury was not given a definition of that term. Rather it was instructed that when words were used in the charge in a sense that varied from the commonly understood meaning, the jury was given a "proper legal definition."
Michael Swiercinsky testified that his family experienced worsening health problems from the mold. He testified that the children had asthma and visited a doctor, but the Swiercinskys do not point to medical testimony or medical documentation linking any illness to the mold, nor do we find any. Their air-quality expert testified that the house was contaminated by mold spores, but he denied any expertise to opine on the health effects of mold.
The Swiercinskys argue that the only evidence on untenantability was uncontroverted. They rely on several cases for the proposition that where uncontroverted evidence establishes injury and costs associated with injury, the jury must award some amount of damages. See, e.g., Lowery v. Berry, 153 Tex. 411, 269 S.W.2d 795 (1954); Hammet v. Zimmerman, 804 S.W.2d 663 (Tex.App.-Fort Worth 1991, no writ). In the cases relied on, personal injuries were established based on objective evidence. In the instant case, there are no findings that the mold caused any objective personal injuries and thus those authorities do not apply.
The jury was free to judge the credibility of the witnesses and the weight of the testimony going to tenantability. Examining the evidence as a whole, we conclude that the jury's refusal to find that the house was untenantable was not against the great weight and preponderance of the evidence. Resolving this issue as we do, we need not reach the Swiercinsky's third issue challenging the jury's nonfinding of increased expenses due to untenantability.
Accordingly, we affirm the trial court's take-nothing judgment.