Court of Appeals of Texas, Third District, Austin
FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT NO. C2007-0104A, HONORABLE DIB WALDRIP, JUDGE PRESIDING
Before Chief Justice Jones, Justices Pemberton and Rose
Jeff Rose, Justice
Canyon Vista Property Owners Association appeals a judgment in favor of one of its condominium owners, Gerald H. Laubach, for the Association's breach of its duty under the Condominium Declaration for Canyon Vista Condominiums (Declaration) to repair the subfloor of Laubach's second-story unit. After a jury trial, the trial court entered a judgment enjoining the Association to repair Laubach's floor by paying a licensed contractor up to $19, 413.63 to perform the necessary work and, to the extent the Association expends less than that amount, to pay Laubach the difference between $19, 413.63 and the amount it actually expends. The judgment also awarded Laubach $8, 100 in actual damages for loss of use plus attorney's fees. The Association asserts that the trial court had no subject-matter jurisdiction over Laubach's claims for individual damages, Laubach was not entitled to recover a monetary award for damages to the common areas, there was no evidence to support an actual damages award in excess of $600, and the trial court erred in admitting evidence of insurance. For the following reasons, we modify the portion of the trial court's judgment awarding Laubach actual damages in the amount of $8, 100 by reducing that award to $2, 100 and affirm the judgment as modified.
The Association filed a lawsuit against Laubach, owner and resident of one of the condominiums within the Canyon Vista Condominium community, for failure to pay assessments and fees due to the Association. After first filing a general denial, Laubach later filed a counter-petition alleging that the Association had breached the Declaration of the condominium community by failing to repair the floor of his unit. By the time the cause came to trial, the Association's claims against Laubach had been settled, as he had paid the outstanding assessments and fees.
Laubach testified at trial that shortly after his purchase of his second-story condominium (unit E7) in July 2004, he noticed problems with the floor. Specifically, the floor produces unusually loud noises and flexes abnormally when walked upon. Laubach testified that his kitchen cabinets shake when his nineteen-pound dog scratches. Laubach lodged a complaint with the Association a few months after purchasing his condominium, and while the Association did inspect his unit and acknowledge the problems identified by Laubach, it failed to take any corrective measures.
At trial, Laubach's expert witness, Jeff Young, confirmed Laubach's concerns about his floor. Young stated that the floor has "an unnatural bounce or deflection to it, " moves in an "unnatural way" when one walks across it, and makes significant noise, all of which are well beyond the norms for wood floors on the second story of a condominium complex. Young prepared an estimate of the necessary measures and expenses to repair the floor by limiting or correcting the noise and bounce. To perform the necessary repairs, Young testified, Laubach would have to vacate the unit and remove his belongings, and the living room and kitchen would have to be gutted from the floor up. The carpeting and vinyl flooring would have to be removed, as would the kitchen cabinetry and a pony wall separating the kitchen and living room. The repairs would entail removing the floor decking, installing new, manufactured "micro-lam" joists to sandwich the existing ones, reinstalling insulation, attaching new decking, installing new carpeting and vinyl flooring, rebuilding the pony wall, and replacing the cabinetry and counter tops.
Young testified that the inexpensive solution proposed by the Association's witness—installing some screws to fasten the existing plywood to the existing joists—might reduce some of the noise but would not reduce the deflection because the real problem existed with the joists and subfloor itself, not the plywood decking. In Young's experience, the preferred method to stiffen a floor in these circumstances, especially one with a long span such as that in Laubach's unit, is to strengthen the joists by sandwiching them with micro-lam structural members. Young believed his proposal to be the most economical way to properly fix the problems with the floor in Laubach's unit. His proposal estimated the cost of these repairs at a minimum of $28, 699.96.
Young's written estimate contained line-items for the various repairs and materials he recommended, including amounts for items such as the labor to install a garbage disposal (even though Laubach's unit did not already have one installed), supplying of new plumbing fixtures (even though Young conceded it might be possible to salvage Laubach's current ones), and wiring for certain appliances such as a microwave (even though Laubach's unit did not already have one).
Young testified that the kitchen counter tops would necessarily have to be replaced with new ones after being removed to repair the floor, as they consisted of laminate on top of particle board and were likely to deteriorate in the removal process. He indicated that the cabinetry would also likely have to be replaced with new cabinets, as they were also made of particle board and not structurally strong enough to be removed and reinstalled. The carpet and vinyl flooring would also have to be replaced with new materials. The estimate also included additional line items for optional upgrades such as higher-quality counter tops and flooring surfaces, which amounts were not included in the $28, 699.96 figure.
Attached to Young's estimate was a report from an engineer, Gaylord E. Reaves. Based on the portion of the subfloor he investigated, Reaves confirmed that the problem with Laubach's floor was structural, that the subfloor lacked lateral "compression blocking" between the joists, and that the joists had no toenails fixing the joists to the top plates of the first floor wall studs, causing the deflection. He opined that the lack of blocking reduces the stiffness of the individual joists and allows them to twist and warp, as well as increasing the risk of fire spread between units.
Article 14 of the Declaration outlines the duties and powers of the Association. Among the listed duties, the Association is required to
maintain or cause the Common Elements and the landscaping, improvements, facilities and structures thereof to be maintained and kept in good state of repair, and acquire for the Association and pay from assessments for such services, furnishings, equipment, maintenance, painting, including exterior painting and repair as it may determine are necessary in order to keep and at all times maintain the Common Elements and the landscaping, improvements and facilities thereon in a good and sanitary state of condition and repair.
The Declaration defines "General Common Elements" (sometimes referred to in the Declaration as "Common Elements") to include the "foundations, columns, girders, beams, supports, main walls, and roofs" as well as "[a]ll other parts of the property necessary or convenient to its existence, maintenance and safety, or normally in common use." The Declaration also indicates ownership of the common elements: they "shall be owned in common by the owners and shall remain undivided. Each owner shall own an undivided interest in the General Common Elements." The parties did not dispute the fact that Laubach's subfloor falls within the Declaration's definition of "Common Elements." Their dispute centered around the extent and cost of necessary repairs and the extent to which Laubach might be responsible for causing the damage to his floor.
Laubach testified that he filed his counterclaim to seek repair of his floor, reimbursement of his legal expenses, and compensation for the loss of enjoyment of his home for the nearly six years since he moved in. After the close of evidence and argument of counsel, two questions were submitted to the jury. The first asked whether the Association breached Article 14 of the Declaration. The jury answered in the affirmative and therefore was instructed to answer the second question: "What sum of money, if paid now in cash, would fairly and reasonably compensate Gerald Laubach for his damages, if any, for the repairs to and loss of use of his condominium unit resulting from the occurrence in question?" The damages question contained two sub-parts with defined elements of damages: "cost of repairs" and "loss of use of condominium unit." Regarding loss of use, the jury was instructed to: "Consider the reasonable value of the use of the condominium unit in the same class as the ...