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Baxter v. Collins

Court of Appeals of Texas, Seventh District, Amarillo

April 11, 2019

BARBARA BAXTER, APPELLANT
v.
RON COLLINS D/B/A BRAZOS VALLEY POOLS & HOT TUBS AND MARC MORONO D/B/A/ AAM COMPANY, APPELLEES

          On Appeal from the County Court at Law Number 1 Brazos County, Texas Trial Court No. 12-001400-CV-CCLI; Honorable Amanda Matzke, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          PATRICK A. PIRTLE JUSTICE

         Appellant, 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.[1] 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, [2] 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, [3] (10) legally and (11) factually insufficient to support the trial court's Finding of Fact Number 18, [4] (12) legally and (13) factually insufficient to support the trial court's Finding of Fact Number 20, [5] 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.

         Distilled 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 judgment.

         Background

         In 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.

         On or 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.

         Brazos Valley Pools & Hot Tubs hired Marc Morono, possibly doing business under the names of The Morono Brothers Corp., AAM Company, or AAMCo Pool Company, [6] 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.

         In June 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.[7]

         On or 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.

         Baxter 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. [8]

         In 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.

         Baxter's 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 ...

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