LeafGuard of Tex. v. Guidry

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LEAFGUARD OF TEXAS, INC., Appellant v. STEPHEN RAY GUIDRY, Appellee

No. 09-21-00034-CV

Court of Appeals of Texas, Ninth District, Beaumont

May 11, 2023

Submitted on June 2, 2022

On Appeal from the 60th District Court Jefferson County, Texas Trial Cause No. B-203,669

Before Horton, Johnson and Wright, JJ.

MEMORANDUM OPINION

JAY WRIGHT Justice

Leafguard appeals from a take-nothing judgment as to its claim against Guidry and a monetary judgment in favor of Guidry on Guidry's counterclaim. Appellant raises six issues in this appeal: 1) the court improperly allowed Guidry's witness to testify as an expert when Guidry failed to properly designate the witness as an expert; 2) the evidence is insufficient to prove Leafguard breached the contract; 3) the evidence is insufficient to prove any damages were caused by Leafguard; 4) the evidence is insufficient to support the award of past and future damages to Guidry; 5) there is insufficient evidence to support the attorney fee award; and 6) because Guidry failed to pay the amount due under the contract, Leafguard is entitled to judgment for the contract amount. We reverse and remand.

I. Background

In 2017, Hurricane Harvey damaged Guidry's home, including portions of the roof and some interior drywall. Guidry retained Leafguard^[1] to make repairs to his home including updating and replacing his siding and windows at a total contract price of $34,613.^[2] After installation, Guidry notified Leafguard of some problems with the work and Leafguard made further repairs, replaced the siding, and it replaced several of the windows at its own expense. Guidry argued that despite Leafguard's remedial measures, problems remained. For that reason, Guidry did not pay Leafguard anything for the work and eventually Leafguard filed a lawsuit against Guidry for the contract price, plus interest and attorney's fees. In the Original and Amended Petitions, Leafguard alleged claims for breach of contract, quantum meruit, unjust enrichment, prompt payment, and sought attorney's fees, costs, and interest. Guidry filed a general denial and then counterclaimed, alleging that Leafguard's work was not only substandard, but that it caused damage to his home, requiring him to incur substantial repair costs.

After a bench trial, the trial court found in favor of Guidry as to his claims for breach of contract and awarded Guidry damages in the amount of $26,236 in past damages and $27,703.20 in future damages, together with attorney's fees in the amount of $10,000. The trial court denied any relief to Leafguard on its claims. The trial court entered findings of fact and conclusions of law in support of its judgment. Leafguard timely filed a notice of appeal.

Summary of Evidence Presented at Trial

A. Christopher Jackson's Testimony

Leafguard's general manager, Christopher Jackson, testified about his responsibilities in the case, noting that he became involved in the matter only after Guidry failed to pay for the work that Leafguard had performed. He authenticated the contracts between Leafguard and Guidry and stated that they reflected normal rates and materials for the windows and siding that were the subject of the contracts. Jackson sent technicians to the project location to verify correct sizes and measurements and indicated that Guidry reported no problems with the work until Leafguard requested payment of the contract price, in approximately June or July of 2018.

According to Jackson, after payment became an issue, Guidry complained that the siding was the wrong color and incorrectly installed, and that the windows leaked. Jackson acknowledged that the siding, as initially installed, was not the color that Guidry had ordered, the windows were not properly caulked, and that the first siding subcontractor Leafguard hired had painted the siding, voiding the warranty. Leafguard consequently removed the siding that was the wrong color and installed all new siding in the correct color. When removing that siding, Leafguard's new siding contractor discovered that Guidry's house needed additional bracing and fasteners so that the finished project would meet Texas Department of Insurance standards for windstorm compliance. This discovery increased the scope of the work and Leafguard issued a change order, which Guidry signed, for an additional $2500. That change order and the agreements for the work were entered into evidence without objection. According to the original agreement, the scope of the work included removal of the existing vinyl siding and application of "Hardie" "autumn tan" siding for $14,900; the installation of 14 "AMI 2000 series beige" windows for $17,203; and a subsequent change order to replace fascia and soffits for $2500. The work orders reflect the dimensions and location of each window, as well as the lengths of the fascia, soffits, and frieze boards to be installed.

Jackson denied that Leafguard or its contractors disturbed Guidry's roof while installing, removing, or reinstalling the siding or the windows.

According to Jackson, Guidry's complaints about window leaks prompted Leafguard to attempt to identify the problem, but it was unable to do so. Notwithstanding Leafguard's inability to identify the alleged window leaks, it replaced six of the fourteen windows it had installed, at no additional cost to Guidry. Although the windows passed inspection for hurricane compliance purposes, the reinstalled siding was not inspected because Guidry did not permit the inspector to perform the inspection. Jackson explained the procedures by which the fascia and soffits were installed by Leafguard's contractors, and how they accomplished the installation without lifting the shingles; he insisted they did not disturb the roof.

B. Stephen Guidry's Testimony

Guidry, the defendant and counter-plaintiff, testified that although he did sign the contracts with Leafguard, the Leafguard salesman misrepresented various unspecified contractual terms. Guidry further testified that Leafguard's workmanship was unacceptable, in that Leafguard damaged his roof, causing it to leak, and he testified that "some of the windows" that Leafguard installed also leaked. He further stated that the material Leafguard used was thicker than the vinyl siding that previously was installed on his house. Guidry stated that the use of this thicker material resulted in the roof failing to overhang the fascia, which caused water to leak into his house. He denied that his prior vinyl fascia boards were composed of a thin sheet of vinyl wrapped around a board, rendering the vinyl fascia material approximately the same thickness as the new siding material that Leafguard installed. He further stated that leaks developed only after Leafguard performed its work. Guidry acknowledged that after Hurricane Harvey, C & H Roofing repaired sections of his then three-year-old roof. He stated, however, that because only a small portion of the roof needed repair after the hurricane, he neither needed nor received a new windstorm certificate for his roof when C & H completed its repair work. He also testified that C & H installed a new roof after Hurricane Harvey, and that it was windstorm certified at that time. Guidry testified later that he did not receive a new windstorm certification after Hurricane Harvey for the limited amount of repair work C & H performed.

Guidry explained that he took photographs of the work but he was unable to state whether the pictures were taken before, during, or after Leafguard performed work on the property. He also confirmed that he had not paid Leafguard any money for the work and averred that all the windows needed replacement-even though only two of them leaked. Guidry's testimony contradicted his earlier testimony that six of his windows leaked after Leafguard replaced them. Although Guidry insisted that Leafguard had raised the shingles on the roof, thereby damaging his roof, he could produce no evidence that it occurred.

C. Kenneth McCurtain's Testimony

McCurtain, a carpenter, testified that although he had performed previous work for Guidry, he became familiar with the issues relevant to this case when Guidry called him to evaluate some cosmetic issues in Guidry's kitchen. At that time, Guidry apprised the witness of his complaints of roof and window leaks. McCurtain inspected the eaves and windows and concluded the windows were improperly installed. McCurtain testified that due to shoddy workmanship, the overhang eaves were rotting, and the fascia boards were incorrectly installed and were "too far out[]" for the roof decking to cover them. In his opinion, this shortcoming permitted water to leak into Guidry's house. He testified the proper remedy would require the replacement of the entire roof.

McCurtain testified that he did not remedy the leaks around the windows, but instead performed interior dry wall work, which he identified in Guidry's photos. He indicated that the only way to address the air and water leaks would be to install new windows because the current windows might bend or break during the reinstallation process. He also stated that all Guidry's windows leaked.

When asked about the price of the repair work, McCurtain testified that the repair estimates he provided in July of 2019, over a year before the trial date, were reasonable at the time and place given, but the estimates should be adjusted upward twenty percent to account for increased material and labor costs. In addition, he testified that Guidry paid him $5462 and $5874, for repair projects that he completed on Guidry's residence.

II. Standard of Review

Leafguard's arguments fall into two categories: abuse of discretion as to evidentiary rulings, and sufficiency of the evidence to support ...