DAVID H. ARRINGTON, Appellant
ARANDA POOLS, INC., Appellee
Appeal from the 441st District Court Midland County, Texas
Trial Court Cause No. CV 49667
consists of: Wright, C.J., Willson, J., and Bailey, J.
WRIGHT CHIEF JUSTICE.
H. Arrington sued Aranda Pools, Inc. for breach of contract
and breach of expressed and implied warranties that arose out
of the construction of a residential pool in Midland. Aranda
Pools countersued with claims of breach of contract and
quantum meruit. The jury found that Arrington breached the
contract and awarded Aranda Pools $77, 032.82 in actual
damages and $300, 000 in attorney's fees. Arrington
presents three issues on appeal. We affirm in part and
reverse and remand in part.
hired Aranda Pools for the construction of a residential pool
at Arrington's home. Arrington and Aranda agreed on a
price of $579, 465.12 to construct the pool. Arrington
promised to pay the agreed upon price according to a preset
schedule. However, when the pool was filled, Arrington
discovered problems with the completed pool, and as a result,
he did not pay the last payment due. Problems that Arrington
claims he discovered with the pool included a decorative
waterfall that was not working correctly, a cracked skimmer,
an improperly installed diving board, and electrical
Benedetti, a pool expert hired by Arrington to inspect the
pool, concluded in his report that the pool might pose a
safety risk to swimmers, including the risk of electrocution
and entrapment under water. Aranda offered to make some of
the repairs, but Arrington and Aranda could not come to an
agreement on all the repairs that needed to be completed, so
no repairs were made. Despite their disagreement as to
repairs, Aranda had personnel from the City of Midland
conduct a final inspection of the pool. The pool passed that
final inspection, and when Aranda received the "green
tag, " it demanded final payment before it would do
anything further to the pool. Arrington did not make the
final payment, and this suit followed.
Arrington's first issue, he argues that the evidence
conclusively established that the pool was not built to code.
Specifically, Arrington argues that the trial court ruled
that the International Building Code (IBC) applied to the
construction and that he conclusively proved that the pool
did not comply with the IBC. Arrington contends that, because
he proved that Aranda Pools violated the IBC, the trial court
should have directed a verdict or granted his motion for
judgment notwithstanding the verdict in favor of Arrington on
both the contract and warranty claims. In the alternative,
Arrington asserts that the evidence was factually
insufficient to support the verdict.
trial, it was heavily disputed as to what code applied to the
construction of Arrington's pool. Arrington argued that
the IBC-the commercial code-and the federal statute known as
the "Virginia Graeme Baker" Act (VGB) applied. 15
U.S.C. § 8001. The IBC incorporates the pool safety
standards of the VGB. Aranda contended that the IBC was not
applicable to the Arrington pool and that the International
Residential Code (IRC) applied instead.
the question of which code applied hinged on whether
Arrington's home had a fourth story. The 2009 IBC
included an exception that stated: "Detached one- and
two-family dwellings and multiple single-family
dwellings (townhouses) not more than three
stories above grade plane in height with a
separate means of egress and their accessory
structures shall comply with the International
Residential Code." International Building Code
§ 101.2 (Int'l Code Family 2009).
the presence of the jury, Arrington testified that his house
is four stories high. Arrington explained that the attic is
on the third floor but that the area his family can inhabit
extends four stories off the ground. Arrington described the
fourth floor as the playroom where a slide begins. He also
explained that the fourth floor does not have a bathroom but
that "the kids sleep up there quite often."
Peterson, a civil engineer, testified at trial on behalf of
Arrington that the IBC governed the construction of the pool.
Peterson attested that Arrington's home was four stories.
Peterson said that he had been "up there" and had
gone down the slide. He explained that, because the house had
four stories, the IBC should apply. No photographs of the
fourth floor were admitted into evidence.
however, presented evidence that was contrary to
Arrington's contention that his home had four stories.
John McIntyre, a structural engineer, testified that, based
on the definitions in the IRC, a finished-out, occupiable
space in an attic is considered a "habitable attic"
and is not considered a separate story. Further, McIntyre
explained that the building permit for Arrington's home
showed that it was a two-story home. Aranda argued at trial
that the fourth floor was "more or less an attic space
that has been converted to a play space."
also asks this court to take judicial notice of a notarized,
recorded, and certified copy-included in his brief as an
appendix-of the deed restrictions for the subdivision where
Arrington's home is situated. This court may take
judicial notice of adjudicative facts that are not subject to
reasonable dispute because they are capable of being
accurately and readily determined by resort to sources whose
accuracy cannot reasonably be questioned. Tex. R. Evid.
201(b). We may do so, whether requested or not, and may do so
for the first time on appeal. Tex. R. Evid. 201(c), (d);
Granados v. State, 843 S.W.2d 736, 738 (Tex.
App.-Corpus Christi 1992, no writ). The deed restrictions are
contained in a certified document that was recorded with the
county clerk of Midland County and, thus, meets the
requirements of Rule 201. Accordingly, we will take judicial
notice of the deed restrictions. The deed restrictions state
that homes built in such subdivision shall not be built to
"exceed two and one-half stories in height." As
such, Aranda contends that, if Arrington's home is four
stories, then there is a violation of the deed restrictions.
party [that] attacks the legal sufficiency of an adverse
finding on an issue on which [it] has the burden of proof . .
. must demonstrate on appeal that the evidence establishes,
as a matter of law, all vital facts in support of the
issue." Dow Chem. Co. v. Francis, 46 S.W.3d
237, 241 (Tex. 2001). When we consider a legal sufficiency
challenge, we review all the evidence in the light most
favorable to the verdict and indulge every reasonable
inference in its favor. City of Keller v. Wilson,
168 S.W.3d 802, 822 (Tex. 2005). We credit any favorable
evidence if a reasonable factfinder could and disregard any
contrary evidence unless a reasonable factfinder could not.
Id. at 827. We may sustain a no-evidence or legal
sufficiency challenge only when (1) the record discloses a
complete absence of a vital fact, (2) the court is barred by
rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact, (3) the only evidence
offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence conclusively establishes the
opposite of a vital fact. Id. at 810 (citing Robert
W. Calvert, "No ...