Seasha Pools, Inc.// Robert Hardister v. Robert Hardister// Cross-Appellee, Seasha Pools, Inc.
2012 Tex. App. LEXIS 10765
| Tex. App. | 2012Background
- Hardister hired Seasha Pools to construct a pool; dispute over shallow-end depth after construction.
- Depth was set at 4 feet during informal discussions about flip turns, later accepted by Hardister.
- Shallow end ended up at 4 feet; Stevens offered to re-plaster to 3'6" at no extra cost, color discrepancy occurred.
- Hardister obtained bids ($3,888–$6,407) and believed replastering was the proper fix; two bids were admitted as reasonable.
- Trial court found breach but no damages due to lack of expert testimony, awarded $8,000 in attorney’s fees; court later remanded on damages and fees.
- On appeal, court reverses the damages finding for replastering, remands for damages and attorney’s fees reconsideration; overall judgment partially affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages for cost of repair sufficient evidence? | Hardister: bids and lay testimony support damages. | Seasha: no damages proven without expert testimony. | Damages for replastering affirmable; remanded for amount. |
| Was replastering necessary as damages? | Hardister: replastering is proper remedy for color issue. | Seasha: extent of necessity disputed; partial replaster acceptable. | Replastering is reasonable and necessary; remand limited to damages amount. |
| Is expert testimony required to prove repair costs? | Hardister: bids and lay opinion suffice. | Seasha: no expert needed as costs shown by bids. | Expert testimony not required; evidence supports damages. |
| Attorney’s fees entitlement on remand? | Hardister: fees justified if damages awarded on remand. | Seasha: fees depend on proving damages. | Fees may be reconsidered on remand; remand to determine appropriate amount. |
| Remand scope—damages and fees only? | Hardister: limited remand for damages and fees. | Seasha: preserve issues on appeal. | Remand for limited issues of damages and attorney’s fees. |
Key Cases Cited
- Bennett v. McDaniel, 295 S.W.3d 644 (Tex. 2009) (objective valuation of services may evidence reasonable repair costs)
- Bernstein v. Thomas, 298 S.W.3d 817 (Tex. App.--Dallas 2009) (property owner may testify about third-party repair estimates)
- Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572 (Tex. 2004) (whether expert testimony is necessary is a question of law)
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (burden and standard of proof in damages; sufficiency review)
- Smith v. Patrick W. Y. Tam Trust, 296 S.W.3d 545 (Tex. 2008) (evidentiary support for damages when evidence partial or range)
- Texas Nat'l Bank v. Karnes, 717 S.W.2d 901 (Tex. 1986) (court cannot make original findings of fact; remand guidance)
- Neeley v. West Orange-Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746 (Tex. 2006) (remand for attorney’s fees reconsideration when damages adjusted)
- Greater New Braunfels Home Builders Ass'n v. City of New Braunfels, 240 S.W.3d 302 (Tex. App.--Austin 2007) (remand when partial judgment error is separable)