Court of Appeals of Texas, Eighth District, El Paso
THE HOUSING AUTHORITY OF THE CITY OF EL PASO, TEXAS, Appellant,
BELTRAN ELECTRICAL CONTRACTORS, INC., Appellee.
from 41st District Court of El Paso County, Texas (TC #
McClure, C.J., Rodriguez, and Palafox, JJ.
CRAWFORD MCCLURE, CHIEF JUSTICE.
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.
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.
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."
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.
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
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).
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."
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.
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.
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.
NECESSITY FOR FINDINGS OF FACT AND CONCLUSIONS OF
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
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 ...