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Raia v. Crockett

Court of Appeals of Texas, Third District, Austin

May 10, 2017

Jared P. Raia, Individually and as Trustee for the Dennis Raia 2012 Family Trust, Appellant
Keith Crockett, Appellee


          Before Justices Puryear, Pemberton, and Goodwin.


          David Puryear, Justice.

         Appellant Jared P. Raia, Individually and as Trustee for the Dennis Raia 2012 Family Trust, [1] filed suit against appellee Keith Crockett, alleging that the house Crockett sold him was infested with ticks, that Crockett should have disclosed the infestation, that Raia had made multiple attempts to rid the house of ticks, and that Raia had been forced out of the house during the infestation and treatments. Raia asserted claims under the Deceptive Trade Practices Act ("DTPA"), see Tex. Bus. & Comm. Code §§ 17.41-.63, and for common-law fraud, fraud in a real estate transaction, see id. § 27.01(a), negligence, negligent misrepresentation, and breach of contract, seeking economic, actual, mental-anguish, and exemplary damages and attorney's fees. Crockett answered, seeking attorney's fees under the real estate contract. Following a bench trial, the trial court signed a final judgment finding that Raia should take nothing on his claims and that Crockett was entitled to attorney's fees under the parties' contract. Crockett was awarded $45, 685 in attorney's fees, along with post-judgment interest and conditional appellate attorney's fees. On appeal, Raia argues that the court's findings were not supported by legally or factually sufficient evidence and that the court thus should not have awarded attorney's fees to Crockett, should have granted judgment for Raia on his claims for breach of contract and negligent misrepresentation, and erred in its award of appellate attorney's fees. We modify the portion of the judgment that awarded post-judgment interest on the conditional appellate attorney's fees and affirm it as modified.

         Standard of Review

         Raia sued Crockett for violations of the DTPA, common-law fraud, fraud in a real estate transaction, negligence, negligent misrepresentation, and breach of contract. To prevail under the DTPA, a plaintiff must show that the defendant represented that the goods were of a particular quality and failed to disclose information known to him at the time of the transaction with the intention of inducing the plaintiff into the transaction, and that the plaintiff would not have entered into the transaction had the information been disclosed. Id. §§ 17.46(b), .50; see also id. § 17.50(a)(2) (plaintiff may also assert DTPA claim for breach of warranty). To prove common-law fraud, a plaintiff must prove that a material representation was made, that it was false, that the defendant knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion at the time the statement was made, that the defendant intended that the plaintiff would rely on the statement, that the plaintiff did rely on it, and that the plaintiff suffered injury as a result. Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 390 (Tex. 1997). The elements of statutory fraud in a real estate transaction are essentially the same except that the plaintiff need not prove knowledge or recklessness. Lindley v. McKnight, 349 S.W.3d 113, 128 (Tex. App.-Forth Worth 2011, no pet.); see Tex. Bus. & Comm. Code § 27.01(a) (fraud in real estate transaction is false representation of past or existing material fact made with intent of inducing person to enter into contract and relied upon in entering into contract). To prove negligent misrepresentation, the plaintiff must prove that the defendant made the representation "in the course of his business, or in a transaction in which he has a pecuniary interest, " the defendant provided false information to guide the plaintiff, the defendant did not exercise reasonable care or competence in obtaining or communicating the information, and the plaintiff suffered pecuniary loss as a result of his justifiable reliance on the representation. Federal Land Bank Ass'n v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991).

         We review a trial court's factual determinations following a bench trial for legal and factual sufficiency under the same standards we apply to jury verdicts. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Barry v. Jackson, 309 S.W.3d 135, 139 (Tex. App.-Austin 2010, no pet.). The trial court is the sole judge of witness credibility and the weight to be given the testimony, and we will not disturb the court's resolution of evidentiary conflicts that turn on credibility determinations or the weight of the evidence. Barry, 309 S.W.3d at 139.

         If a party attacks the legal sufficiency of the evidence supporting an adverse finding on an issue for which he had the burden of proof at trial, he must demonstrate that the evidence establishes all vital facts in support of the issue as a matter of law. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); City of Austin v. Chandler, 428 S.W.3d 398, 407 (Tex. App.-Austin 2014, no pet.); see Barry, 309 S.W.3d at 139 (evidence is legally insufficient "if there is a complete absence of evidence of an essential fact, the trial court was barred by rules of law or evidence from giving weight to the only evidence proving an essential fact, no more than a scintilla of evidence was offered to prove an essential fact, or the evidence conclusively establishes the opposite of the essential fact"). We view the evidence in the light most favorable to the trial court's determinations and credit favorable evidence if a reasonable fact finder could have done so, disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005); Barry, 309 S.W.3d at 139. When attacking the factual sufficiency supporting an adverse finding on an issue for which he had the burden of proof, the party must demonstrate that the finding is against the great weight and preponderance of the evidence, and we consider all of the evidence and will set aside a trial court's determination only if the supporting evidence is so weak that the finding is clearly wrong and unjust. Francis, 46 S.W.3d at 242; Chandler, 428 S.W.3d at 407-08.

         Factual Summary[2]

         In 2014, Raia bought Crockett's house, which is on eight acres in the Bee Cave area. The parties agree that deer are commonplace on this property and in this area. In his seller's disclosure, Crockett marked "no" to the question of whether he was "aware of" any condition on the property that "materially affects the health or safety of an individual." Crockett had a real estate agent, but Raia did not. Crockett and his four dogs were living in the house at the time. Raia viewed the house twice before deciding to buy the house and testified that he did not see insects in his tours of the house; Raia's fiancée, who toured the house with him, similarly testified that she did not see any ticks inside the house. Raia's property inspector, who inspected the physical structure and its mechanical systems in early May, did not note anything about insects on the property, although he testified that he was only certified to find signs of wood-destroying insects.

         The sale closed about six weeks later, in mid-June, and Crockett moved out one or two days before closing. Raia hired a painting crew to repaint the house, starting two days after closing. Raia testified that the paint crew soon started noticing "a lot of bugs, a lot of ticks" in the house, and the painting company eventually told Raia that several of the painters found ticks in their cars and homes. Raia testified that the ticks were mostly concentrated in the "mudroom" next to the kitchen but that they were also in the kitchen and "all throughout the house." Raia testified that despite the warnings by the painters, he did not attempt to treat the tick problem before he, his fiancée, and their dog moved into the house in mid-July because he did not realize how serious the problem was. Shortly after moving in, he "was finding them all over my dog and on myself." Raia said that his dog, who is primarily an inside dog, "had literally 30, 50 ticks on him, " and that Raia "was plucking them off of him constantly." Raia had not done yard work at the house and did not believe that the ticks got on him while out in the yard. Raia's dog did not come to the house at all until after closing and might have come to the house "once or twice" while the house was being painted. Less than a week after moving in, Raia moved into a hotel while the house was treated for ticks. Raia hired three different pest control companies to treat the ticks, none of which were effective. Raia then hired a fourth company, which treated the yard and tented and fumigated the house over a period of "a couple of days." Since that treatment, Raia has not seen ticks in the house.

         Raia testified that after the tick problem became evident, he called Crockett to ask about the ticks, recording the call unbeknownst to Crockett.[3] The trial court listened to the recording, and a transcription of the call was introduced into evidence. In the call, Raia asked Crockett what he did about ticks, explaining that he was finding many on his dog. Crockett answered, "[M]y best friend is a vet. And I said man, I've never had ticks before in my life and he said gee, those ticks are being brought there by the water deer [sic] and the ticks go up in the trees . . . ." The vet advised that spraying the grass would not be sufficient and that Crockett would have to "spray this stuff up into the trees" but that "with the deer migration going through your property, . . . it's a never ending, because they're the carriers . . . . [T]hat's what I kept being told. You know, basically I'm screwed." Crockett said that for a time he used a topical tick treatment on his dogs but that it was ineffective because his dogs frequently swam in the pool. Crockett said, "Of course, in the winter, then it all goes away." When Raia told Crockett that he had found ticks in the mudroom, Crockett said, "Well, they used to sleep there in that wash room in the cold." Raia then asked, "[B]ut in the winter, you said you have less of a problem, " and Crockett said, "Yeah, it disappears." Crockett went on to say, "I thought maybe with the harsh winter-and of course, most of-all the spring, I didn't notice anything and so I thought wow, maybe I just had a bad, you know, stretch there. But later in the summer, I guess when it started heating up, they started coming back out." Raia explained that he had pulled at least fifteen ticks off of his dog, and Crockett said, "Good God, " and, "I'd never find that many. I mean, I'd find a couple." Crockett told Raia that his dogs were short-haired and that he had warned a friend who brought his long-haired dogs to the property that he had "some issues with ticks here" and that he "can't do anything about your dogs"; his friend addressed the ticks by having his dogs groomed once a month. Crockett told Raia that if Raia's dog was not a swimmer, the topical treatment should work. Crockett asked "what area is [Raia's dog] hanging out in mostly" and when told that the dog "roams about the house" and that Raia was finding ticks everywhere, he said, "I guess the-call in the exterminator and-but . . . out in the yard is obviously the source." Crockett said he was sorry to hear that Raia was having problems with ticks and said "it certainly was there when I got there, so I don't-but I didn't-I didn't know it was inside. If it's inside, it's because of that damn wash room. I was kind enough to let them in there in the cold." He also said, "I never had one on me in the house."[4]

         Jeffrey London, who owns the painting company that painted Raia's house, testified that he and his crew worked on the house from mid-June until mid-July and that they noticed ticks "within the first week, " at first only "finding a couple." When they reached the back area of the house, "[t]hat's where the concentration was." The painters saw occasional "spiders and scorpions in other parts of the house, " which was not unusual, but "[t]he entire job, [London] only saw [ticks] in that-the entrance in the back door. And the last day, I think I noticed a couple walking on the floor in the great room." London said they found "more than a couple" and "killed probably ten, 12. And then we started noticing they weren't going away. Like we thought we would just kill the last couple. But towards the back entrance of the door, we realized that there's an infestation." London testified that it was "very hot" and that they "had the air conditioning on as cool as we could get it." "There might have been a couple of days when some windows were open, just for ventilation, " he said, but mostly the doors and windows were kept shut and the air conditioning was left on.

         Caleb Cunningham owns a pest control company and attempted to address the tick problem. He saw numerous ticks, "primarily concentrated in the mudroom area, just off the garage, " and coming from underneath trim in that room; he also saw some ticks in the kitchen, which adjoins the mudroom. Cunningham testified that ticks usually hide in a crevice and "wait for a meal, and then that's when they will come out in the open" and that they "can go dormant or sit still for months at a time, and so if there's no host . . . readily available, they will wait . . . until a meal comes to them." Simply walking through a room would be unlikely to bring ticks out-"some sort of standing or continuous activity in a room is what would really get them out." Cunningham also testified:

if there was a dog or host of some sort, population in the house, that dog is holding engorged ticks. The engorged tick does not have to go into a wall in order to give birth. The engorged tick merely just needs to have had a meal. So . . . if there were hosts in the house, whether before or after . . . [Raia] bought the house, then that-one of those ticks or multiple ticks can have babies. Whether or not it was in the wall or not, the babies would drop off. . . . [A]t that point, they can all scatter and go wherever . . . .

         Jerry McNair, Raia's fiancée's uncle, testified that he helped Raia remove some cabinetry from the mudroom about a week after Raia moved in and that when they pulled it off, "we got to see all the lovely little critters running around on the wall, " "falling off of [the cabinet], and the wall and everywhere, " "probably three to four in every square foot, at least. And they were crawling back up under the baseboard and everywhere else by the time we got to there."

         Both Raia and Crockett called expert witnesses to testify about the tick infestation in the house. Raia called Dr. Raymond Thompson, an entomological and pest-control consultant who both testified and provided a report reciting his opinions, and Crockett called Dr. Roger Gold, who has a Ph.D. in entomology and plant pathology. The experts agreed that the ticks in question are brown dog ticks, which have a three-stage life-cycle, from larva to nymph to adult, and require a "blood meal" from a living animal between each stage. Thompson and Gold agreed that this tick prefers to feed from dogs but will feed from deer and even humans if necessary, that the ticks wait in areas where animals can be found and grab onto a host from which they can feed, and that the full life-cycle generally takes about three to five months to complete, depending on the circumstances.

         Thompson testified that an "adult, engorged, mated female can lay anywhere from three to five thousand eggs at one time" and that eighty to ninety percent of those eggs generally hatch and become larvae. He said ticks "are pretty long lived"-as larvae and nymphs, ticks can live from five to eight months without eating, and some research showed that adults "can live up to 18 months without a blood meal." This kind of tick is more active in warm seasons and "can go many months, actually, without feeding in each one of these stages. They are not in a tremendous hurry, but if the food source presents itself, they immediately go for it." Thompson said that a house air-conditioned to seventy or seventy-five degrees would not be an ideal environment and that the ticks prefer temperatures in the range of eighty to ninety-five degrees, with "the higher the relative humidity, the better for them." However, he also said home infestations are "fairly common with this particular tick" because it prefers indoor environments and can go through its entire life-cycle indoors. Thompson said that they "have a tendency to hide in a lot of places" and then "start climbing upward, " such as on walls, when they "get to that point where they need a blood meal."

         Thompson was asked whether he would expect to find ticks inside or outside if the homeowner had "outdoor dogs that stayed outdoors, except during freezing weather, " and he said he "would expect to find them inside" because the dogs "come in and out." When asked about reports from the tent-fumigation company that guards posted outside the house were "eaten up with ticks outside" and whether it was "at least equally as likely that the source of the tick problem . . . was the outside environment rather than the inside environment, " Thompson answered that if the dogs spent "a lot of time outside then that becomes a very convenient food source for [the ticks], as well. So, of course, they would propagate outside." Thompson did not believe this tick infestation could have occurred between closing and mid-July.

         Thompson testified that brown dog ticks can carry diseases that can harm dogs and occasionally humans. Thompson focused on Rocky Mountain Spotted Fever as being possibly carried by this kind of tick, testifying that the Centers for Disease Control and Prevention ("CDC") had reported that twenty people in Arizona were hospitalized with Rocky Mountain Spotted Fever carried by the brown dog tick and that the CDC had ...

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