James K. Hancock v. Calvin Genzer and Sandi Genzer, individually and d/b/a Trinity Home Improvement--Appeal from 125th District Court of Harris County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-04-00711-CV

Case Date: 06/15/2006

Plaintiff: James K. Hancock

Defendant: Calvin Genzer and Sandi Genzer, individually and d/b/a Trinity Home Improvement--Appeal from 125th

Preview:James K. Hancock v. Calvin Genzer and Sandi Genzer, individually and d/b/a Trinity Home Improvement-Appeal from 125th District Court of Harris County
Opinion issued on June 15, 2006

In The Court of Appeals For The First District of Texas

NO. 01-04-00711-CV

JAMES K. HANCOCK, Appellant

V.

CALVIN GENZER AND SANDI GENZER, INDIVIDUALLY AND D/B/A TRINITY HOME IMPROVEMENT, Appellees

On Appeal from the 125th District Court Harris County, Texas Trial Court Cause No. 2003-18930

MEMORANDUM OPINION Appellant, James K. Hancock, appeals the trial court s take-nothing judgment in favor of appellees, Calvin Genzer and Sandi Genzer, individually and d/b/a Trinity Home Improvement (collectively Genzer ), on Hancock s Texas Deceptive Trade Practices Act ( DTPA ), fraud, and breach of contract claims. In eight points of error, Hancock asserts that the trial court erred in granting judgment for Genzer because the trial court s findings of fact are against the overwhelming weight of the evidence. We affirm.

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Background Hancock s house sustained roof damage in 2001 during Tropical Storm Allison. After noticing that the roof was leaking and water was seeping into the house, Hancock called his insurance company, Farmer s Insurance, to assess the damage. Due to the amount of damage that Tropical Storm Allison caused, the insurance adjuster was not able to come to Hancock s house immediately. The rain continued to come into the house until an adjuster arrived. Once there, the adjuster noticed that there was too much water in the house and that the insurance company needed to send in a mold adjuster within 24 hours. Farmer s Insurance sent mold adjuster, Nina Henry, to the Hancock house and assess the mold damage. Nina brought her husband, Bill Henry, to serve as her estimator. Later, Hancock met with Mr. Henry and Calvin Genzer, owner of Trinity Home Improvement ( Trinity ), to discuss hiring the company to perform the mold remediation at the house. Hancock testified that Genzer used Mr. Henry as his estimator and paid him 10% of the cost of the mold remediation job. He further testified that, after a walk through the house with Genzer and Mr. Henry, Hancock hired them to do the work on his house. Hancock said that Genzer and Mr. Henry told him that they had insurance coverage for anything that went wrong on the job and that their company was bonded. Hancock stated that he hired Genzer to perform the remediation because Genzer was supposed to have been certified as a mold remediator and; therefore, he knew the proper procedures for abating mold without spreading it or destroying the property. Later, Hancock discovered that this was Genzer s first job. Hancock testified that he paid Genzer $20,000 on June 21, 2002 for work performed at the residence. A second check for $20,000 was written on July 31, 2002 as an advance payment for additional work that needed to be done on the house, but that Hancock claimed was never performed. He testified that, when Genzer did not return to complete the work on the house, Hancock found the house in what he called shambles, totally destroyed. He testified that the walls, ceilings, and floors were destroyed and that there was wiring hanging down, debris all over, and door casings missing. A few months later, Hancock sent a letter advising Genzer that he no longer wished to retain Genzer and Trinity for the remediation or build-back of his house. The letter also informed Genzer that he was no longer authorized to enter the property. On cross-examination, Hancock testified that he originally hired Cotton Remediation Company to do tear-out work on his house. He fired Cotton from further work on the house after it removed kitchen cabinets at the ceiling level when the mold was at the base boards. Hancock also testified that, after firing Genzer, he hired other people to do repairs on his house. He also hired laborers to clean the house and remove debris, as well as, a company to repair structural damage he alleged Genzer caused when removing insulation from the ceilings. Louis Battaglia, a microbiologist who consulted for companies investigating mold infestation, testified for Hancock. Although he was not qualified as an expert witness in mold remediation, Battaglia testified that he taught the microbiology section of mold remediation qualification course attended by Genzer and Mr. Henry. He said that Mr. Henry contacted him to request a referral for a company that does mold investigations. Battaglia recommended Reliant Environmental, who later did an investigation on Hancock s house. Battaglia also testified that he performed an investigation of the house at the request of Mr. Henry in 2002 and then again later at the request of Hancock. In the later report requested by Hancock, Battaglia concluded that it was obvious that the removal of the ceilings and HVAC ducts were probably not necessary. Further, he testified that, in his opinion, the Hancock house was unlivable. Melissa Bohannon testified that she was employed as an insurance agent and licensed insurance adjuster who had experience working on mold claims. Bohannon testified that, when she visited Hancock s house, she found it basically stripped to the studs and uninhabitable. Calvin Genzer testified in defense of the claims against him. When asked why he and his company failed to repair and remediate Hancock s house as Hancock alleged, Genzer stated that there was never a contract to repair and remediate. He testified that, although Hancock s house was his first mold remediation job, he had been certified by Enviro Test and sought the assistance of someone with two years of professional remediation experience, Sam Trujillo. Trujillo was recommended by the Enviro Test instructors as someone who was experienced and could put together a professional team to perform the remediation. Genzer testified that Trujillo served as the foreman for the remediation job on

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Hancock s house. Genzer further testified that he had a chance to view the Hancock house and the photographs of the house previously admitted as evidence. Viewing the pictures, he stated that the walls that were torn out in the back of the house and the loose wires on the floor were not his practice and not his work. Genzer testified that, when he left the job site, Hancock s house was spotless. He said that he vacuumed the entire job with HEPA vacs // and that there was not a tiny piece of little wood, or a screw, a nail, nothing. Everything is vacuumed and cleaned. When asked to look at photographs of containment procedures at the Hancock house, Genzer testified that a lot of what was visible in the photographs was not his work and appeared to have been done after he left the job. Genzer admitted that his tear-out job included removal of ceiling drywall in the garage, hallways, utility room, game room, bedrooms, bathrooms, and kitchen. He testified that Hancock told him that there were 13 leaks in his house and that the ceilings were full of mold. Once Genzer cleared out all of the ceiling drywall, he did not find any mold or evidence that water had ever leaked onto the joists or rafters in the attic. Genzer testified that Hancock attempted to supervise the work done on his house and often insisted that the house was full of mold. After Genzer told Hancock that there was no mold found in the ceilings, Hancock insisted that the walls were full of mold. Genzer testified that Hancock once insisted: It just had to be there. It has to be there. I can smell it. It affects me. Every time I go in the house I just get sick. Genzer testified that, after he and his company performed the initial tear-out, he told Hancock that he was unable to go any further without a contract for more work. He had been paid a total of $40,000 and was unable to perform additional services without the proper paperwork and a contract. Genzer stated that he and Hancock never reached an agreement to build back the Hancock house and never received approval from any insurance carrier to perform such work. Despite his testimony that Hancock continued to beg him to tear out all of the sheetrock walls in the house, Genzer insisted that there was never an agreement to perform additional work. Additionally, Genzer testified that he never represented to Hancock that his company was bonded. At trial, Hancock alleged DTPA, fraud, and breach of contract claims against Genzer. Hancock argued that Genzer failed to disclose that the repair and remediation services being sold to him were insufficient to effectively remedy the condition of his house. He further alleged that Genzer defrauded him and breached their contract for mold remediation services. The trial court granted judgment for Genzer following a trial to the court. The trial court made the following findings of fact and conclusions of law: Findings of Fact 1.Plaintiff purchased services from Defendants and reached an agreement with Defendants that Defendants would provide such services to Plaintiff in connection with the Plaintiff s residence. 2.Defendants did not fail to provide the agreed services to Plaintiff. 3.Defendants did not make false or misleading statements of fact to Plaintiff concerning the characteristics or condition of the services Defendants agreed to provide to Plaintiff. 4.Defendants did not make false or misleading statements of fact to Plaintiff concerning the nature of the services Defendants agreed to provide to Plaintiff, the physical type of services to be provided, the extent of the services to be provided, or the type or kind of services to be provided. 5.Defendants did not represent that services purchased by Plaintiff were of a particular standard, quality or grade, when they were of another. 6.Defendants did not represent to Plaintiff that the services to be provided by Defendants were backed by or supported by a bond, when in fact, they were not. 7.Defendants did not fail to disclose to Plaintiff that additional services known to Defendants at the time the services were sold to Plaintiff were needed to effectively remediate the residence.

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8.Defendants did not misrepresent to Plaintiff that certain services would be provided by Defendants, which were not provided. 9.Plaintiff has not suffered damage as a result of the acts or omissions of the Defendants.

Conclusions of Law 1.Defendants did not breach their contract with Plaintiff. 2.Defendants have not violated the [DTPA]. 3.Defendants actions do not constitute unconscionable conduct under the [DTPA]. 4.Defendants have not committed fraud against the Plaintiff. 5.Plaintiff is not entitled to recover damages from Defendants. 6.Plaintiff is not entitled to recover attorney s fees from Defendants. 7.Defendant is not entitled to recover attorney s fees from Defendants.

Factual Sufficiency In eight points of error, Hancock complains that findings of fact two through nine are against the overwhelming weight of the evidence. He argues that the great weight of the evidence before the trial court shows that his allegations of DTPA violations, breach of contract, and fraud were established. We disagree. Standard of Review In an appeal from a bench trial, a trial court s findings of fact have the same weight as a jury s verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex. App. Houston [1st Dist.] 1996, writ denied). When challenged, findings of fact are not conclusive if, as here, there is a complete reporter s record. Id. When there is a reporter s record, the trial court s findings of fact are binding only if supported by the evidence. Id. If the findings are challenged, we review the sufficiency of the evidence supporting the findings by applying the same standards that we use in reviewing the legal or factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994). When a party attacks the factual sufficiency of an adverse finding on an issue where he had the burden of proof, he must demonstrate that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). In reviewing a great weight and preponderance issue, we must (1) examine the record to determine if there is some evidence to support the finding and, if so, (2) determine, in light of the entire record, whether the finding is so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. See id. In doing so, we must detail the evidence relevant to the issue and state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict. Id. We must also employ appropriate deference so that we do not substitute our judgment for that of the fact finder. See Merckling v. Curtis, 911 S.W.2d 759, 763 (Tex. App. Houston [1st Dist.] 1995, writ denied). In a bench trial, the trial court, as factfinder, is the sole judge of the credibility of the witnesses. S. W. Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App. Houston [1st Dist.] 1992, writ denied). It may take into consideration all the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. Hancock testified that several companies performed work on his house. He first hired Cotton to tear down parts of the kitchen. After he fired Cotton for tearing out too much of the kitchen, Hancock hired Genzer. The evidence shows that,

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after Hancock sent Genzer a letter terminating his employment and restricting him from accessing the property, he hired several more companies to do additional work on the house. While the photographs show that the house experienced significant damage, it is unclear from the record who caused the destruction. In this case, photographs of the damage to Hancock s house were admitted into evidence. Hancock was the only witness called to testify regarding which company caused the damage. He testified that Genzer caused all of the damage to his home. In response, Genzer testified that the destruction depicted in the photographs was not caused by him or his company. Furthermore, Hancock testified that Genzer represented that his company was backed or supported by a bond. Genzer testified that he never represented to Hancock that he had a bond to do this project. Here, the parties to the suit were the primary witnesses at trial. Under these circumstances, the determination of the disputed issues was for the trial court. After hearing all the evidence, the trial court concluded that Genzer did not (1) breach the contract with Hancock; (2) violate the DTPA; (3) act unconscionably; or (4) commit fraud against Hancock. Hancock does not complain of the trial court s conclusions of law. Having viewed all of the evidence in a neutral light, we hold that the findings made at trial were not so contrary to the overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust. See Francis, 46 S.W.3d at 242. Accordingly, we overrule Hancock s eight points of error. Conclusion We affirm the judgment of the trial court.

George C. Hanks, Jr. Justice Panel consists of Justices Jennings, Hanks, and Higley.

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