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Arrington v. Aranda Pools, Inc.

Court of Appeals of Texas, Eleventh District

August 31, 2017


         On Appeal from the 441st District Court Midland County, Texas Trial Court Cause No. CV 49667

          Panel consists of: Wright, C.J., Willson, J., and Bailey, J.



         David 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.

         Arrington 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 problems.

         Paul 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.

         In 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.

         At 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.

         However, 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).

         Outside 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."

         David 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.

         Aranda, 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."

         Aranda 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.

         "[A] 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 ...

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