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U.S. Ply, Inc. v. ARCI, Ltd.

Court of Appeals of Texas, Ninth District, Beaumont

April 25, 2019

U.S. PLY, INC., Appellant
ARCI, LTD., Appellee

          Submitted on December 19, 2018

          On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 14-03-03055-CV

          Before McKeithen, C.J., Horton and Johnson, JJ.



         This appeal involves a dispute between a roofing subcontractor that installed roofs on two apartment buildings in Montgomery County and the entity that manufactured the roofing materials the subcontractor used to build the roofs. Following a bench trial, the trial court found in the subcontractor's favor and awarded damages. The manufacturer appealed and filed a brief, which raises ten issues for our review. We conclude the manufacturer's issues are either without merit or were not properly preserved for appellate review. Thus, we affirm the judgment the trial court signed following the trial.


         The appellant, U.S. Ply, Inc., manufactures and sells an array of roofing materials used on commercial buildings. The performance of one of its products- RapidGRIP-is the product that lies at the heart of the parties' dispute. The evidence in the trial shows that RapidGRIP comes in rolls and that commercial roofing contractors use it in several applications to build commercial roofs. One of these involves using RapidGRIP as the middle layer of a three-ply roofing system. RapidGRIP is useful for this purpose because when correctly installed, it firmly bonds with the other two layers of roofing material. When finished, this category of roof is known as a three-ply, modified-bitumen roof.

         ARCI, Ltd. is the subcontractor that purchased RapidGRIP and used it on the roofs that were the subject of the trial. The parties tried the case to the bench. By its verdict, the trial court found that the manufacturer misrepresented the qualities of the RapidGRIP to the subcontractor in connection with its purchase of RapidGRIP, that the manufacturer violated express and implied warranties associated with the sales, and that the repairs the subcontractor performed to correct the problems on the roofs, allegedly associated with the RapidGRIP's failure to create a sufficient bond to the ply that it covered, were reasonable and necessary. The trial court also found that the subcontractor did not fail to store the RapidGRIP properly before using it or fail to follow any of the manufacturer's instructions and industry standards that were material to properly installing the modified-bitumen roofs.

         U.S. Ply's product information sheet for RapidGRIP describes the product as a "SBS (Styrene-Butadiene-Styrene) self-adhering membrane[, ] [m]anufactured with a strong fiberglass mat that is saturated and coated with a premium quality, 'high tack' asphaltic bitumen that is combined with durable SBS elastomers and protected by a poly release film for easy installation." The label indicates that RapidGRIP, in some roofing systems, may be "cold applied, SBS torch applied and SBS mop applied assemblies where applicable." In January and February 2013, ARCI used RapidGRIP as the middle layer of a three-ply, modified-bitumen asphalt roofing system on two apartment buildings that were built in Montgomery County. ARCI performed the work as a subcontractor working for the general contractor on the project, Construction Supervisors, Inc. The parties refer to the construction project as "Sunningdale," as do we.

         The testimony in the trial shows that before building the roofs at Sunningdale, ARCI had over thirty years of experience installing roofs on commercial buildings, which included successfully building between 2, 500 and 3, 000 modified-bitumen roofs using a self-adhering roofing membrane manufactured by one of U.S. Ply's competitors. Before using RapidGRIP at Sunningdale, however, ARCI had never used that brand of roofing membrane. The testimony from the trial shows that before ARCI decided to use RapidGRIP on its project at Sunningdale, ARCI's president, Jody Born, contacted Shawn Walker, a representative for U.S. Ply. Jody and Walker met to discuss using U.S. Ply's roofing products on the modified-bitumen roofs ARCI planned to build at Sunningdale. Jody testified that he told Walker about the products ARCI traditionally used to build modified-bitumen roofs, and that the roofing membrane they were using could be applied cold-that is, without using a torch. Jody explained that Walker told him that RapidGRIP was "as good or better" than the brand of roofing membrane ARCI had been using for this type roof.[1]

         By late January or early February 2013, ARCI finished installing the RapidGRIP on roofs it built on the apartments at Sunningdale. As ARCI's work neared completion, the project's architect hired Building Exterior Solutions, L.L.C. (BES) to inspect the roofs to determine whether they were substantially complete. BES inspected the roofs in mid-February 2013 and then issued a report. In its report, BES noted five types of deficiencies in the roofs, including "[u]n-adhered laps in the adhered base sheet." The testimony and documents in evidence show the RapidGRIP membrane did not bond with the ply it was used to cover over large areas on both apartment's roofs.

         In early April 2013, U.S. Ply signed an agreement with ARCI defining the scope of repairs and materials required to correct the problems associated with the RapidGRIP on one of the apartment buildings at Sunningdale. The parties refer to that building as building two. They refer to the building that U.S. Ply never agreed to repair as building one.

         Under the repair agreement, U.S. Ply agreed to pay ARCI $57, 524 for the labor required to repair the roof on building two with roofing materials that were supplied by U.S. Ply. BES recommended repairs due to problems with the RapidGRIP on both roofs. ARCI proceeded to repair the roofs on both buildings even though U.S. Ply only agreed to pay for the repairs to building two. On building two, ARCI replaced the roof under the terms of its repair agreement with U.S. Ply. To repair the roof on building one, ARCI added two additional layers of roofing material over the existing roof pursuant to the recommendation by BES to repair the roof that way.

         Although ARCI provided the labor to repair the roof on building two, U.S. Ply never paid for the repairs based on the requirements of the written agreement covering that building. In March 2014, U.S. Ply placed a check for $57, 524 into the registry of the district court and sued ARCI seeking a declaratory judgment stating that it owed ARCI nothing for repairing the two roofs. U.S. Ply asked the trial court to declare the parties' rights. In response to the suit, ARCI counterclaimed, alleging that U.S. Ply was guilty of deceptive trade practices, had misrepresented the qualities of the RapidGRIP, and breached implied and express warranties accompanying ARCI's purchases of the RapidGRIP it used at Sunningdale. ARCI's live pleading alleges that in connection with ARCI's purchases of U.S. Ply's brand of roofing products, U.S. Ply represented that RapidGRIP is "self-adhering[, ]" "would fully adhere[, ]" and "that there was no additional attachment method needed" to install the product. U.S. Ply's live pleadings deny that the RapidGRIP used at Sunningdale failed to bond to the lower ply of the roofs on which it was used, that the RapidGRIP was defective, or that U.S. Ply misrepresented anything about RapidGRIP in connection with ARCI's purchase of its products.

         In late 2016, the case went to trial. Before the trial began, the trial court realigned the parties, making ARCI the plaintiff and U.S. Ply the defendant. Thirteen witnesses testified over the course of a four-day trial. ARCI and U.S. Ply called expert witnesses, and each discussed why the RapidGRIP used at Sunningdale failed to bond to the bottom ply of the modified-bitumen roofs.

         In mid-January 2017, the trial court signed a judgment awarding ARCI $171, 105 in damages and $224, 200 in attorney's fees, plus conditional awards of attorney's fees dependent on whether ARCI prevailed through each stage of any appeals. In mid-February 2017, U.S. Ply moved for new trial. It also filed a request asking that the trial court provide the parties with written findings of fact and conclusions of law. The trial court never filed written findings, and U.S. Ply filed a timely notice of appeal.


         U.S. Ply raises ten issues for our review in its brief. For convenience, we group and then analyze them under four headings: (1) is the evidence legally and factually sufficient to support the judgment; (2) did ARCI's alleged failure to follow U.S. Ply's instructions and industry standards when installing the RapidGRIP waive its right to recover on ARCI's implied and express warranty claims; (3) was the testimony of Bradley Hughes, ARCI's roofing expert, properly admitted and does it provide reliable support for the verdict; and (4) did ARCI preserve its right to obtain the trial court's written findings regarding the verdict.

         Standard of Review

         Four of U.S. Ply's appellate issues argue the evidence is legally and factually insufficient to support the trial court's verdict. We address the standard for those issues here. In an appeal from a bench trial, the trial court's findings of fact are reviewable under the same legal and factual sufficiency standards that are used to determine whether the evidence admitted during a trial is sufficient to support the jury's answer to the jury charge.[2] Stated another way, the trial court's factual findings "have the same force and dignity as a jury's verdict[.]"[3] When parties try the case to the bench, the trial court acts as the factfinder and judges the credibility of the witnesses, the weight to give to the testimony, and resolves any inconsistencies that may exist in the evidence before it in the trial.[4] In reviewing findings of fact, we credit evidence that supports the verdict if the trial court could have done so, and we disregard evidence that is inconsistent or contradicts the trial court's findings unless the court, given the evidence before it, could not have resolved the conflict in a way that favors its verdict.[5]

         Here, the trial court failed to provide the parties with written findings of fact and conclusions of law in response to U.S. Ply's first request asking for them. U.S. Ply, however, then failed to notify the trial court that its findings were past due.[6] In the absence of written findings, we imply all findings of fact needed to support the judgment if there is evidence to support them.[7]

         Under the legal-sufficiency standard of review, we consider the evidence admitted in the trial in the light that most favors the findings the appellant is challenging in the appeal.[8] We indulge every reasonable inference that can be made from the evidence in favor of the trial court's verdict, and then we determine whether the legally sufficient evidence was admitted during the trial to support the trial court's verdict.[9] If the trial court could have credited the evidence that it considered in favor of its verdict, we will too, and we must disregard evidence contrary to the verdict unless it is evidence the trial court could not have reasonably decided to ignore.[10]Ultimately, after viewing the evidence in a favorable light, we must decide if the finding the appellant is challenging was reasonable given the evidence admitted in the trial.[11]

         When the appellant raises factual-sufficiency complaints in its appeal, we examine all the evidence admitted in the trial to evaluate whether the evidence is factually sufficient to support the trial court's verdict.[12] When conducting a factual-sufficiency review, we view the evidence in a neutral light, and we are not authorized to set aside the findings being challenged unless the overwhelming weight of the evidence is contrary to the implied findings such that the verdict is wrong and unjust.[13]

         When reviewing a trial court's conclusions of law, we apply a de novo standard.[14] On appeal, we cannot review a trial court's legal conclusions for factual insufficiency.[15] Instead, the trial court's legal conclusions are reviewable to determine whether the trial court properly applied the law to the facts of the case.[16]

         1. Is the evidence legally and factually sufficient to support the judgment?


         In its first, sixth, and seventh issues, U.S. Ply argues the trial court's judgment should be reversed because the trial court's findings are unsupported by evidence that is sufficient to support the trial court's conclusion that U.S. Ply misrepresented RapidGRIP's qualities or its conclusion that U.S. Ply breached any express or implied warranties that accompanied the relevant sales.[17] In support of these arguments, U.S. Ply relies heavily on the roofing report of its employee, Clint Freeman. Freeeman inspected the roofs in late-February 2013. U.S. Ply also relies heavily on a report of BES, authored by its employee Mike Hoecherl. Hoecherl inspected the roofs before they were completed. His report states the "modified bitumen roof system[s] [ARCI installed at Sunningdale] were not completed per industry standard roofing practices and the roof system manufacturer's guidelines." According to U.S. Ply, except for Hoecherl's testimony explaining why the RapidGRIP used at Sunningdale failed, the record contains no other admissible or reliable evidence explaining why the RapidGRIP ARCI installed malfunctioned.

         In presenting its arguments, and to isolate the testimony the trial court considered from ARCI's roofing expert, Bradley Hughes, U.S. Ply suggests that his testimony was both inadmissible and unreliable. According to U.S. Ply, the trial court should not have allowed Hughes to testify because ARCI failed to provide it with a copy of Hughes' report by the discovery deadlines in the docket-control order that controlled the discovery deadlines in the case. Also, U.S. Ply argues that Hughes did not have the qualifications that he needed to determine why the RapidGRIP used at Sunningdale malfunctioned. U.S. Ply concludes that without the benefit of Hughes' testimony, the record does not contain legally or factually-sufficient evidence to support the implied findings that must be made to support the trial court's verdict.[18]

         In general, the record shows that the parties presented the trial court with two conflicting theories to explain why the RapidGRIP malfunctioned when it failed to bond to the ply of roofing material that it covered. U.S. Ply claimed and produced evidence during the trial that ARCI failed to follow U.S. Ply's instructions for the product and to apply the product in accord with industry practices. Yet the record also contains evidence that ARCI properly installed the RapidGRIP and followed all of the material instructions and prevailing industry standards when installing the product. Additionally, the record before the trial court contains substantial evidence showing that the RapidGRIP used at Sunningdale would not bond to the ply of roofing material it covered without using a torch.

         The final judgment the trial court signed does not specify the legal theory the trial court used to reach its verdict. To prevail on appeal, and because the trial court did not reduce its findings and conclusions to writing, U.S. Ply must establish that ARCI was not entitled to prevail on any of the theories of liability on which it relied at trial.[19] Thus, U.S. Ply must establish in its appeal that the evidence before the trial court is insufficient to show that U.S. Ply violated the Deceptive Trade Practices Act (DTPA), breached any express warranties, or breached any implied warranties that apply to ARCI's purchases of the RapidGRIP it used at Sunningdale.[20]

         Before examining the evidence relevant to ARCI's DTPA and implied warranty of merchantability claims, we examine the record to determine whether the evidence supports the trial court's judgment under ARCI's express warranty theory.[21] During the trial, ARCI claimed that it relied on various representations about RapidGRIP's qualities on the product's label and representations that Walker made during his meeting with Jody. The label on the boxes the RapidGRIP came in states the product is a "premium quality, 'high tack'" membrane and indicates that in some applications, RapidGRIP can be applied cold. The testimony in the trial reflects that a purchaser's ability to apply the product cold means the product can be applied without using supplemental heat, like a torch, to cause the product to bond with the upper and lower plies of a modified-bitumen roof. According to Jody, in his meeting with Walker, Walker told him that RapidGRIP is "as good or better" than the roofing membrane they were using regarding the quality of the membrane to stick on roofs during a conversation when Walker knew that ARCI intended to apply the product without using a torch.

         Ultimately, ARCI requested that Construction Supervisors, the general contractor on the Sunningdale project, approve its request to use U.S. Ply products on the roofs that ARCI was hired to build at Sunningdale. Construction Supervisors forwarded the information about the roofs that it got from ARCI to the architect for the project and ARCI received the required approvals it needed to use U.S. Ply's products to build the roofs. The written materials that ARCI provided Construction Supervisors about RapidGRIP, which originated at U.S. Ply, state that RapidGRIP is a self-adhering, high-tack membrane that can be used at ambient temperatures of 50℉ or higher and when RapidGRIP is at least 70℉ if installed while exposed to direct sunlight without using supplemental heat. Based on the testimony about the circumstances showing how ARCI chose to use the RapidGRIP brand of roofing membrane for its work at Sunningdale, we conclude the record contains legally and factually-sufficient evidence to support the trial court's implied finding that ARCI relied on information supplied by U.S. Ply to purchase the RapidGRIP that it used on the project.[22]

         There is also evidence in the record that supports the trial court's finding that the qualities of the RapidGRIP ARCI used on the project did not conform to the product's label and the representations Walker made about RapidGRIP during his meeting with Jody.[23] The testimony in the trial established that Mid-States Asphalt manufactures RapidGRIP under specifications provided to it by U.S. Ply. In late-March 2013, after BES identified that there was a problem with the RapidGRIP ARCI installed on the apartment's roofs, U.S. Ply sent Mid-States Asphalt a part of the leftover roll that ARCI removed from one of the roofs at Sunningdale. U.S. Ply asked that Mid-States Asphalt test the roll. In an email, U.S. Ply told Mid-States Asphalt that U.S. Ply had conducted its own tests on the leftover roll of RapidGRIP, and that its tests showed the RapidGRIP "[could] be easily removed." Several days after sending the leftover roll, U.S. Ply sent a follow-up email to Mid-States Asphalt. The email states: "[T]he RapidGRIP is not sticking to the base on the project. What [U.S. Ply] need[s] to know is whether or not the sample provided to you is mating properly . . . . or do you need supplemental heat or conditions to make that happen?" This email, along with the evidence showing that BES found problems with the RapidGRIP installed on the roofs, clearly shows that U.S. Ply wanted to know whether the leftover roll could be used for applications like those at Sunningdale without a torch because the label indicated the product could be used for that type of application if applied properly and within the temperatures that are stated on the product's label.

         In late-March 2013, Mid-States Asphalt tested the leftover roll. After testing the roll, Mid-States Asphalt advised U.S. Ply, by email, that proper "adhesion will be achieved by simple torching down the finished roof covering over the Rapid[GRIP]." About thirty minutes after receiving that email, U.S. Ply replied: "That isn't our question nor concern - it is that it appears that it will not bond without a torch which is the complaint - that is what we want an answer to." About an hour later, Mid-States Asphalt informed U.S. Ply that "[using supplemental heat] will most definitely solve the problem. . . . So, yes supplemental heat will be required in order to facilitate the bond to the substrate. . . . I hope that this answers your question." Later that same afternoon, Mid-States Asphalt offered to replace the RapidGRIP that ARCI used on its project.

         We conclude the evidence admitted during the trial allowed the trial court to conclude as a reasonable finder of fact that the RapidGRIP failed to bond to the roof when applied without using a torch. ARCI installed the RapidGRIP under conditions significantly cooler than the conditions when U.S. Ply and Mid-States Asphalt tested the leftover roll. The tests on the leftover roll were conducted at around 75℉. U.S. Ply's report about its test of the leftover roll states: "Rapid[GRIP] did not adhere very well."

         U.S. Ply argues the tests on the leftover roll were not relevant because by the time the roll was tested, it was no longer in the same or similar condition that it was in when it was sold. Based on that argument, U.S. Ply concludes the test results on the roll do not explain why the rolls of RapidGRIP ARCI used failed to bond to the lower ply of the roofs on which it was installed. To support this argument, U.S. Ply points to the evidence in the record from which the trial court might have found that ARCI failed to store or to install the RapidGRIP properly. According to U.S. Ply, the record establishes that storage and installation errors, not a malfunction in the RapidGRIP, explain why the RapidGRIP failed.

         To prove causation on an express warranty claim, the plaintiff must prove the breach is a "substantial factor in bringing about" the plaintiff's injuries.[24] According to U.S. Ply, the overwhelming great weight and preponderance of the evidence shows the RapidGRIP malfunctioned because ARCI failed to store or to install the RapidGRIP it acquired properly. U.S. Ply argues that given the evidence about how the RapidGRIP was stored and installed, the leftover roll was no longer in a condition that it could be tested to determine what condition the rolls were in when ARCI acquired them. And it argues that ARCI's storage and installation errors caused the RapidGRIP to malfunction when the rolls did not bond to the roofs.

         The record from the trial contains testimony from which the trial court might have found that (1) ARCI failed to roll the RapidGRIP with a weighted roller after placing it over the mechanically-fastened ply that it installed on the roofs; (2) ARCI did not install the RapidGRIP when the ambient air temperatures were at least 50℉ and the RapidGRIP rolls were at least 70℉; (3) After ARCI rolled the RapidGRIP out on the roof, it then failed to protect its work in progress by covering the RapidGRIP with the top ply of roofing material before leaving its work overnight, thereby allowing the rolls that it installed each day to be exposed to the weather; (4) ARCI failed to seal the roof in various places before leaving work each day, creating another potential source of moisture that could interfere with the RapidGRIP's ability to bond to the other plies of roofing material used to build the roofs; and (5) ARCI failed to store the RapidGRIP to protect it from the effects of the weather and from sunlight before installing it. With respect to using a weighted roller, there is testimony in the record that shows that ARCI failed to use a weighted roller. RapidGRIP's label recommends that to achieve best results, it highly recommended rolling the RapidGRIP with a weighted roller. ARCI presented testimony showing that it customarily used four-pound brooms to press the roofing membrane into the roofing ply the membrane covered to make the plies contact each other, and that it followed that practice at Sunningdale. According to Jody, using brooms in the manner that ARCI uses them when building modified-bitumen roofs is an acceptable practice. He explained that U.S. Ply's application procedures recommend but do not require the use of weighted rollers. The testimony from the trial shows that ARCI viewed the statement on RapidGRIP's label about using a weighted roller as a recommendation, not as a requirement. Given the label and the testimony in the record, the trial court could have reasonably concluded that the use of weighed rollers was not required by the label, or that ARCI's failure to use a weighted roller did not play a substantial role in causing the RapidGRIP to fail.

         ARCI also disputed U.S. Ply's claim that it installed the RapidGRIP under weather conditions inconsistent with RapidGRIP's label. During trial, ARCI relied on weather records to establish what the ambient air temperatures were when it installed the rolls of RapidGRIP at Sunningdale. The weather records in evidence cover the months of January through March 2013. The temperatures recorded are based on temperatures measured at an airport about 16 miles from Sunningdale. Based on these records, Jody testified that ARCI never installed the RapidGRIP when the ambient air temperatures were below 50℉ or when the rolls were not at least 70℉. Jody's son, Marshall Born, also addressed whether ARCI installed the RapidGRIP under conditions inconsistent with those on the product's label. Marshall was ARCI's construction supervisor for ARCI's project at Sunningdale. He testified that ARCI's job foremen were familiar with the temperatures in which RapidGRIP should be installed. Marshall testified that ARCI's crews did not "work or install anything under those temperatures." Victor Robles, the ARCI foreman who supervised the crew that built the roof on building two, also testified in the trial. According to Victor, his crew installed the RapidGRIP when the air was at least 70℉ on the roof.[25] Hughes and Jody testified that the temperatures on a building's roof is typically around 25% higher than the temperature when measured from the ground. We conclude the record contains conflicting evidence about whether ARCI installed the RapidGRIP at temperatures outside the temperatures found on the product's label. Nevertheless, the great weight and preponderance of the evidence does not show that ARCI installed the RapidGRIP when it was less than 50℉ as claimed by U.S. Ply.

         U.S. Ply also points to testimony and other evidence before the trial court that is critical of ARCI's workmanship. It relies on this evidence to support its claim that the tests on the leftover roll were unreliable or that they the trial court gave the tests entirely too much weight. U.S. Ply's brief, however, fails to address the evidence in the record that contradicts the evidence on which it relies. The record includes testimony disputing U.S. Ply's claim that ARCI failed to properly store U.S. Ply's roofing materials before installing them on the roofs. For example, Victor testified that during the construction process, ARCI stored and covered the RapidGRIP inside a garage at night. The instructions accompanying RapidGRIP state the product "must be covered and not left exposed for more than 90 days." There is no evidence in the record showing that ARCI exposed the RapidGRIP to the weather or to the effects of the sun for ninety days, and no evidence that the product was left exposed to any extreme heat or cold. Generally, the testimony before the trial court shows that when using the RapidGRIP, ARCI's crews took the rolls out of the boxes they came in shortly before laying one or more rolls out on the roof where those rolls were to be installed. After removing a roll from a box, members of ARCI's crew laid the roll out to allow it to warm for a short period of time, less than an hour, before installing it over the bottom ply on the modified-bitumen roofs.

         The record also contains evidence disputing U.S. Ply's claims that various issues with ARCI's workmanship explained why the RapidGRIP failed. ARCI's roofing expert, Hughes, explained that all but one of the deficiencies Hoecherl pointed out in his February 2013 report could be explained by the fact Hoecherl inspected the roofs before ARCI finished them. Hughes characterized most of the items Hoecherl criticized about the roofs as consisting of incomplete work, not poor workmanship. According to Hughes, ARCI's work at Sunningdale "met the standard of care and responsibilities for a roofing contractor within the industry."

         Marshall also address whether ARCI left its work in progress under conditions that allowed moisture to penetrate the roofs. According to Marshall, ARCI did not leave the roofs overnight without first sealing the roofs' seams. While Marshall acknowledged that Hoecherl's photos show some areas where the roofs' seams were not sealed, there is no testimony from any of U.S. Ply's experts showing that moisture penetrated the RapidGRIP and caused the RapidGRIP's failure in these areas or any others. Instead, the testimony of U.S. Ply's witnesses suggests that the penetration of the RapidGRIP membrane with moisture could explain why the RapidGRIP failed. The evidence before the trial court shows that ARCI presented evidence disputing U.S. Ply's theory that the presence of moisture below the RapidGRIP explained why the RapidGRIP failed. Jody testified that when Hoecherl was looking at the roofs, Hoecherl never told him that he found a place where moisture had penetrated the roof. Additionally, Jody testified that none of the people who inspected the roofs told him that the RapidGRIP failed because water penetrated the ...

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