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American Air Systems, Inc. v. Book

Court of Appeals of Texas, Ninth District, Beaumont

March 9, 2017


          Submitted on October 28, 2016

         On Appeal from the 58th District Court Jefferson County, Texas Trial Cause No. A-191, 364

          Before McKeithen, C.J., Kreger and Horton, JJ.


          STEVE McKEITHEN Chief Justice

         American Air Systems, Inc. ("American Air") appeals the trial court's final judgment in favor of appellees for American Air's violations of the Texas Deceptive Trade Practices Act ("DTPA"). In four appellate issues, American Air challenges (1) the trial court's denial of its motion for directed verdict and judgment notwithstanding the verdict as to its affirmative defense of statute of limitations; (2) the legal sufficiency of the evidence supporting the jury's finding that false, misleading, or deceptive acts or practices were a producing cause of appellees' damages; (3) the legal sufficiency of the evidence to sustain the jury's finding that American Air failed to perform repair services in a good and workmanlike manner, or that such failure was a producing cause of appellees' damages; and (4) the trial court's refusal of jury questions regarding the date appellees should have discovered that their injury was likely caused by American Air's wrongful acts. We reverse the trial court's judgment and render judgment that appellees take nothing.


         Jeffery Book and Veronica Book ("the Books") filed suit against American Air regarding allegedly poor construction and air conditioning services American Air provided at the Books' home. According to the Books, the parties' course of dealing extended from 2004 until the Books sued American Air on November 17, 2011. The Books pleaded the discovery rule and the doctrine of fraudulent concealment "to toll any statute of limitations." According to the Books, "it took Plaintiffs a long time to find out the true nature of their problems caused by Defendant's culpable conduct . . . due to its prolonged misrepresentations to hide its own culpable conduct." The Books also pleaded that their lawsuit was "based upon not only the work performed, but also upon the lengthy course of dealing between the parties through which Defendant continued to engage in culpable misconduct." The Books asserted causes of action for negligence, negligent misrepresentation, breach of contract, and DTPA violations. The Books sought treble damages because they asserted that American Air committed the alleged DTPA violations knowingly.

         In its answer, American Air generally denied the Books' allegations. American Air also contended that the Books "maintained the air conditioning system at too low of a setting, thereby causing the condensation of which they complain[;]" asserted that the occurrence was caused by other parties for whose acts American Air is not responsible; argued that as a non-manufacturing seller, it is not liable for the Books' damages; and pleaded the affirmative defense that the Books' claims "are in all things barred by the applicable statutes of limitations."

         Jeffery Book testified that he purchased his home, which was new construction, in 2004. According to Jeffery, [1] Carrier designed the home's air-conditioning unit, which was installed by American Air. Jeffery explained that he had asked American Air to install a unit with a higher efficiency rating a few days before he and his wife moved into the house. According to Jeffery, he and his wife usually kept the thermostat set at sixty-nine or seventy degrees at night and approximately seventy degrees during the day. Jeffery testified that when the weather began getting warm, in approximately April 2005, the air vents started dripping and "[e]very air vent had condensation on it." Jeffery explained that the problem occurred every day, and it continued into approximately October, when the weather became cooler. Jeffery testified that he and his wife had to use containers to catch the water, and he explained that they used stainless steel bowls that would hold at least one gallon of water. According to Jeffery, the bowls would fill with water every five to six hours. Jeffery testified that the dripping and condensation damaged the sheetrock around the vents and also ruined a mattress.

         Jeffery explained that Don Potter owns American Air, and Don Potter planned for his son, Lee Potter, to take over the company.[2] According to Jeffery, his wife Veronica called American Air about the problem and was present during all of American Air's repair attempts. Jeffery testified that he spoke to Don about the condensation and dripping, and Don assured him that American Air would fix the problem. Jeffery did not recall Don telling him what he believed the problem was. Jeffery explained that he had "very good" conversations with Lee, but although American Air "was real good about coming out[, ]" and American Air seemed to be doing an excellent job, the problem was never resolved. Jeffery testified that Lee would say, "I sympathize with you. It's not right. We're [going to] get this problem resolved. And I heard that for seven years, and that's what got us to where we are today."

         According to Jeffery, Lee once brought a Carrier representative to the house, and the Carrier representative advised the Books to keep the thermostat on seventy-eight degrees. Jeffery testified that American Air installed an ultraviolet light system because mold developed, causing a "horrible smell[.]" Jeffery explained that American Air also installed an AprilAire unit to help "remove the moisture out of the system in the house." According to Jeffery, American Air never told him that the problem lay with the ductwork. Jeffery testified that he or Veronica called Thermacon Service Company ("Thermacon") in 2013, and after performing tests, Thermacon replaced the ductwork in the attic, which solved the problem. According to Jeffery, the testing Thermacon performed revealed that cold air was going into the attic instead of the house. Jeffery also testified that the old ductwork was extensively rusted.

         Jeffery explained that he "absolutely" believes American Air deceived him and Veronica because "they misrepresented." When asked to explain the basis of his belief, Jeffery testified:

Well, we befriended Don . . . . And for them to just let me down like that, . . . thinking that they're our friends and they're not go[ing to] deceive us and put all the trust in [th]em; and then it's just like they closed the door on us. It's like: We can't wait until this warranty's over with so we don't have to come out and mess with y'all anymore. That's the feeling I got, and it was hurtful.

         During cross-examination, Jeffery admitted that when he was deposed in 2013, he said that he did not believe Don had made any false representations. He now believes that Don misrepresented that American Air could solve the problem and bragged about "what a superior unit . . . the Carrier Infinity unit was[.]" Jeffery testified that he believes Don tried to resolve the problem and that ...

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