Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the County Court at Law Number 1 Brazos County,
Texas Trial Court No. 12-001400-CV-CCLI; Honorable Amanda
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
PATRICK A. PIRTLE JUSTICE
Barbara Baxter, appeals from a take-nothing judgment
following a bench trial in favor of Appellees, Ron Collins
d/b/a Brazos Valley Pools & Hot Tubs (Collins/Brazos) and
Marc Morono d/b/a AAM Company (Morono/AAM) in her contract
and tort action involving the construction of a swimming
pool. On appeal, Baxter asserts the trial court
abused its discretion (1) by not finding Collins personally
liable on the swimming pool contract due to his failure to
disclose the true identity of his principal, (2) by not
finding Collins/Brazos liable on any of Baxter's claims
for common law tort, (3) breach of contract, (4) fraud, (5)
negligent misrepresentation, and (6) violation of the
Deceptive Trade Practices Act,  and (7) by applying the economic
loss rule to Baxter's fraud claims. She also contends the
evidence is (8) legally and (9) factually insufficient to
support the trial court's Finding of Fact Number 9,
(10) legally and (11) factually insufficient to support the
trial court's Finding of Fact Number 18,  (12) legally and
(13) factually insufficient to support the trial court's
Finding of Fact Number 20,  and that the trial court abused
its discretion by (14) not finding Collins liable on
Baxter's breach of an implied warranty of good and
workmanlike construction claim and (15) by not finding
Morono/AAM liable on Baxter's negligence claim.
to its essence, the two central issues in this appeal are
whether Baxter produced sufficient evidence at trial to
establish (1) Collins's personal liability for a breach
of Baxter's swimming pool construction contract with
Brazos and (2) if so, that Collins and Morono/AAM breached
that contract causing her to suffer damages. We find that
there was no evidence at trial to establish that Collins was
individually liable for Baxter's claims and Baxter failed
to produce any evidence establishing a causal link between
the pool's installation and the subsequent events from
which she alleges injury. We affirm the trial court's
September 2009, Sakara Ibis Corporation purchased Barry Pool
Company. Barry Pool Company was registered as the assumed
name under which Sakara conducted professional services.
Collins was Sakara's president. In addition, a Texas
Sales and Use Permit was issued to Sakara under the assumed
business name of Brazos Valley Pools & Hot Tubs. Sakara
also registered a Certificate of Assumed Business Name under
Barry Pool Company. From 2009 through 2015, Sakara filed its
federal income tax returns naming itself and underneath
Brazos Valley Pools & Hot Tubs. In January 2010, the name
of Barry Pool Company was changed to Brazos Valley Pools
& Hot Tubs.
about May 11, 2010, Baxter purchased a pool from Sakara doing
business under the assumed name of Brazos Valley Pools &
Hot Tubs. Collins was the salesperson who sold her the pool
and the invoice representing their agreement issued under the
name of Brazos Valley Pools & Hot Tubs. At the time, two
outdoor signs also indicated that the business establishment
was named Brazos Valley Pools & Hot Tubs.
Valley Pools & Hot Tubs hired Marc Morono, possibly doing
business under the names of The Morono Brothers Corp., AAM
Company, or AAMCo Pool Company,  to perform the excavation
and pool installation. From May 28 to June 17, the pool was
constructed pursuant to a pool permit issued to Brazos Valley
Pools as the contractor and the fee was paid in cash by
Brazos Valley Pools. Brazos Valley Pools also agreed to
perform Baxter's post-installation requests based upon an
agreement signed by Baxter wherein she agreed to pay $6,
592.31 to Brazos Valley Pools. The receipt for final payment
by Baxter was issued by Brazos Valley Pools.
2010, Baxter hired another contractor (not affiliated with
Brazos Valley Pools & Hot Tubs or Morono) to install a
concrete sidewalk and deck area around her pool. Baxter had
no engineered plans for the deck and no piers or support for
the deck. Brazos Valley Pools & Hot Tubs was not involved
in any manner with the design, construction, or installation
of the concrete deck surrounding the pool.
about July 2010, after the concrete deck had been installed
for several weeks, the soil surrounding the pool on both
sides collapsed, causing damage to the pool. Baxter did not
hire anyone to determine the cause of the collapse, but she
did engage a different contractor, Ameri-Tech Pools, to
install a new pool.
subsequently filed her original petition in May 2012, and her
first amended petition in August 2016. In her amended
petition, Baxter alleged claims for breach of contract,
common law fraud, fraud under the DTPA, negligence, negligent
misrepresentation, and breach of an implied warranty of good
and workmanlike construction. In his original answer, Collins
denied that he was doing business under the trade name or
assumed name of Brazos Valley Pools & Hot Tubs when he
sold the pool to Baxter. In his Request for Disclosure to
Plaintiff Pursuant to Texas Rule of Civil Procedure 194,
filed in October 2014, Collins also informed Baxter that he
believed Sakara was a proper party to the suit because her
pleadings indicated Baxter entered into a contract with
Brazos Valley Pools & Hot Tubs and it was that entity who
allegedly breached the contract and caused her injury. In his
first amended answer, Collins reiterated that he was not
liable under a written contract agreed to by Brazos Valley
Pools & Hot Tubs and was not liable in the capacity in
which he had been sued-i.e., individually. 
August 2016, a bench trial was held. At trial, neither Baxter
nor Collins could testify as to why the soil collapsed,
damaging the pool. Collins testified he was never allowed to
perform an investigation into the collapse.
expert at trial was Peter Gonzales of Ameri-Tech Pools. He
admitted he was not a certified installer for the brand of
pool (Doughboy Pools) sold by Brazos Valley Pools & Hot
Tubs. He did, however, testify that he had seen a video of
the Doughboy pool purchased by Baxter and that he had seen
one in person, although he had never installed a pool
manufactured by Doughboy.
Gonzales testified at trial as follows:
GONZALES: When you install an in ground vinyl pool, it has to
have a footing back behind the bottom of the wall.
QUESTION: Okay. And when you were digging out the pool, did
you see any cement?
GONZALES: No, sir.
QUESTION: Okay. Um, what happens if it's just plain dirt
or mud around the walls?
GONZALES: The first rain, it will cave.
QUESTION: Okay. And was there just dirt or mud around the