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The Housing Authority of City of El Paso v. Beltran Electrical Contractors, Inc.

Court of Appeals of Texas, Eighth District, El Paso

February 23, 2018


         Appeal from 41st District Court of El Paso County, Texas (TC # 2011-DCV07029)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.



         The central issue presented is whether the trial court committed reversible error by excluding an expert witness. A secondary issue alleges that the trial court had a duty to issue findings of fact and conclusions of law to explain why it struck the expert. Because we cannot conclude the trial court's order probably caused the rendition of an improper judgment, we affirm.


         This lawsuit arises out of a contract between the Housing Authority of El Paso (HACEP) and Beltran Electrical Contractors, Inc. (Beltran). In 2007, HACEP hired Beltran to replace a "switch gear" at a HACEP facility. As a part of that work, Beltran needed to turn off the power to the building over President's Day weekend. HACEP, however, needed to maintain power to one room housing its emergency communications system and a computer. To power that room, Beltran brought in a portable generator. HACEP contends that because the generator provided too much voltage, the communications system, several hard drives on its computer, and an air-conditioning unit in the room were damaged.

         HACEP filed suit, asserting a breach of contract and breach of warranty theory. The petition alleged that because of "problems with the generator, a number of electrical devices were severely damaged at HACEP." The breach of warranty claim specifically asserts that Beltran failed to "properly replace the switch gear."

         Answering these two allegations, Beltran filed a motion for summary judgment. The motion included the deposition testimony of Andy Cook, an employee of the engineering firm that had overseen the project for HACEP. Cook concluded that Beltran had timely performed its obligations in a good and workmanlike manner. The motion also asserted no evidence grounds. Tex.R.Civ.P. 166a(i)(after an adequate time for discovery, a party may assert there is no evidence of one or more elements of a claim or defense). The no evidence portion of the motion claimed that HACEP had no evidence of any material breach of contract, no evidence of any breach of warranty, nor any evidence that any breach of the contract or warranty was a producing cause of damages.

         HACEP's response clarified that it was asserting two distinct breach of contract claims. In one claim, HACEP contended that Beltran had failed to list HACEP as an additional insured on Beltran's insurance policy. Second, HACEP alleged that Beltran breached the contract by using a 208 volt instead of a 110 volt generator to power the equipment room, causing damage to an air conditioner and computer hard-drives. As proof, HACEP attached several contract documents, and a drawing that in part reflects that Beltran was responsible for providing temporary power to the equipment room during the project. Under the contract, Beltran was obligated to repair or replace any structures or equipment damaged during the project. HACEP also included an affidavit from Dr. Eric MacDonald, who is a professor of Electrical Engineering at the University of Texas at El Paso. Dr. MacDonald opined that:

It is my opinion that the damage to the various electrical devices at the Housing Authority was caused by overvoltage meaning that the temporary generator which was used was set a higher voltage setting which in turn damaged all of the electrical devices which were connected to it.

Dr. MacDonald attached a report to his affidavit that further explained his opinion (and which we elaborate on below).

         To substantiate the underlying facts of what transpired that weekend, and to prove the timing of when the electronics were damaged, HACEP attached the affidavit of Juan Olivera, its Director of Development & Capital Projects. He in turn attached to his affidavit a memo from Gilbert Cruz, a HACEP maintenance supervisor. Cruz's memo states that when Beltran turned on its portable generator, the air-conditioner in the equipment room did not start. When HACEP examined the air-conditioner, it discovered that the motor was burned out. That same weekend, HACEP learned its phone system was not working. When Beltran tried to address that issue by "moving wires around" to power the phone panel, a "noise came from the phone panel" and a back-up battery on the system was "burned."

         Beltran objected to both Dr. MacDonald's and Olivera's affidavits. Without ruling on either of those objections, the trial court initially denied Beltran's motion for summary judgment. Beltran then deposed Dr. MacDonald, and subsequently filed a more comprehensive motion to strike his opinions. Following an evidentiary hearing, the trial court granted the motion to strike.

         Beltran then asked the trial court to reconsider its denial of the motion for summary judgment. Following additional argument, the trial court sustained the objections to parts of Olivara's affidavit, including the Cruz memo, and granted a partial summary judgment for Beltran on the equipment damage claim. The remaining contract issue--whether Beltran failed to list HACEP as an additional insured--was then tried to the court and decided against HACEP. In this appeal, HACEP does not challenge the ruling on the additional insured issue, nor the striking of portions of the Olivera affidavit, and instead confines its argument solely to the trial court's decision to strike Dr. MacDonald.

         HACEP brings two issues on for review. The first contends that the trial court abused its discretion in striking Dr. MacDonald's opinions. The second issue faults the trial court for not issuing findings of fact and conclusions of law to explain why it struck Dr. MacDonald.


         We address HACEP's second issue first -- the failure of the trial court to make findings of fact and conclusions of law -- because it seeks a remand for findings prior to our reaching the merits. While HACEP filed a request for findings of fact and conclusions of law below, we find no requirement for such findings when the trial court strikes an expert witness.[1]

         In any case tried in a district or county court without a jury, a party may request the court to state in writing its findings of fact and conclusions of law. Tex.R.Civ.P. 296. Once a party makes a proper request under Rule 296, the trial court is obligated to make findings of fact and conclusions of law. See Tex.R.Civ.P. 297 ("The court shall file its findings of fact and conclusions of law within twenty days after a timely request is filed."). Nonetheless, a party is not entitled to findings of fact and conclusions of law in every case. For instance, findings are not appropriate when the trial court renders judgment as a matter of law because they serve no purpose and should not be requested, made, or considered on appeal. IKB Indus. (Nigeria), Ltd. v. Pro-Line Corp.,938 S.W.2d 440, 443 (Tex. 1997)(findings have no purpose and should not be requested for summary judgments, judgment after directed verdict, judgment non obstante veredicto, default judgments awarding liquidated ...

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