Date: 04-23-2017

Case Style:

Case Number: 01-16-00670-CV

Judge: Jane Bland

Court: Texas Court of Appeals, First District on appeal from the County Court at Law No. 2 Galveston County

Plaintiff's Attorney: Dan Krieger for Yale and Leslie Scott

Defendant's Attorney: Albert Giddens for Buccaneer Construction, LLC

Description: When plans to remodel an attic space could not meet city requirements, Leslie and Yale Scott sued Buccaneer Construction LLC for the return of their construction deposit. Buccaneer counterclaimed for breach of contract. The Scotts prevailed at a bench trial, and the trial court awarded them their deposit and
2
attorney’s fees. Buccaneer appeals, contending that the trial court lacked jurisdiction to grant the Scotts’ motion to reinstate the case after it was dismissed for want of prosecution and that factually insufficient evidence supports the judgment. We conclude that the trial court had jurisdiction and sufficient evidence supports the judgment. We therefore affirm.
Background
The Scotts hired Buccaneer Construction to convert their home’s attic space to a dormer room and bathroom. They provided a $9,200 deposit toward construction costs. Buccaneer required construction plans before beginning work. The architect that Buccaneer recommended the Scotts use raised concerns that the house would not accommodate the planned remodel and the city would not approve permits for it. Later, he forwarded an email showing that the local architectural control committee had rejected the proposed plans, and in particular, the inclusion of a bathroom. The Scotts cancelled the contract and demanded the return of their deposit. Buccaneer refused, and the Scotts sued Buccaneer.
At trial, Leslie Scott testified that she and her husband contracted with Buccaneer Construction in February 2015 to add an additional bathroom and to convert the attic space for a total labor cost of $18,400. Upon signing the contract, Leslie Scott wrote a check to Buccaneer Construction for $9,200. Before beginning, Buccaneer required construction drawings. On Buccaneer’s
3
recommendation, the Scotts retained Branko Gligoric for the job—an architect that Buccaneer often used. After Gligoric measured the space and drew plans, he reported to the Scotts that the bathroom could not be completed in the dormer space because it would not comply with the building code. Several days later Gligoric sent plans for the construction attached to an email that stated, “I think it will looks very good without building a new bathroom.”
In contrast, at trial, Branko Gligoric testified that the bathroom could be built in compliance with city code and that he never told the Scotts otherwise. Victor Hegman, Buccaneer’s owner and president, testified that his company lost $5,200 in planning and opportunity costs associated with the Scotts’ cancellation of the contract. Hegman conceded that Buccaneer had not performed any work or taken delivery of any construction materials before the Scotts cancelled the contract.
In April 2015, the Scotts sued for rescission and for violations of the Texas Deceptive Trade Practices Act, claiming that Buccaneer had misrepresented the feasibility of the project and that the contract was impossible to perform. Buccaneer counterclaimed for breach of contract.
The trial court dismissed the case for want of prosecution twice, but it granted the Scotts’ timely motions to reinstate following each dismissal. Both dismissals were premised on the parties’ failure to appear for a status conference.
4
The trial court first dismissed the case for want of prosecution in September 2015. The Scotts moved to reinstate the case four days later, submitting an affidavit that verified that everything stated in the motion was true and correct. The trial court reinstated the case.
The Scotts missed a second status conference, and the trial court again dismissed the case for want of prosecution in October 2015. In early November, the Scotts again moved to reinstate. The Scotts made slight alterations to their first motion to reinstate, but used the same verification for their second motion to reinstate that they had attached to their first motion to verify that everything stated in the motion was true and correct.
Discussion
Buccaneer challenges the trial court’s jurisdiction and the sufficiency of the evidence to support its judgment.
I. Verification Requirement
Buccaneer complains that the trial court lacked jurisdiction to grant the Scotts’ second motion to reinstate on December 3, 2015. Buccaneer contends that the trial court’s plenary power expired on November 19, 2015 because the inadequately-verified motion did not extend the court’s plenary power.
Once a case is dismissed for want of prosecution, a party may file a verified motion to reinstate within “30 days after the order of dismissal is signed.” TEX. R.
5
CIV. P. 165a(3). A timely-filed motion to reinstate extends the trial court’s plenary power until 30 days after the motion has been overruled by the trial court or by operation of law. Id. An unverified motion to reinstate, however, does not extend the trial court’s plenary jurisdiction. McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding). When a party does not timely file a verified motion to reinstate, the trial court’s plenary jurisdiction expires 30 days after the date on which the court signed a final order of dismissal. Id.
We construe the verification requirement liberally so that our decisions turn on substance rather than procedural technicalities. See Guest v. Dixon, 195 S.W.3d 687, 688–89 (Tex. 2006) (construing verification requirement so that “right of appeal is not unnecessarily lost to technicalities”); Fed. Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 689–90 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (holding timely-filed joint motion to reinstate satisfied verification requirement); In re Dobbins, 247 S.W.3d 394, 396–97 (Tex. App.—Dallas 2008, orig. proceeding) (verification requirement satisfied by combination of evidentiary hearing and court master’s recommendation of approval of motion within the 30-day period after dismissal).
In reviewing a trial court’s ruling on a motion to reinstate, we apply an abuse-of-discretion standard. Smith v. Babcock & Wilcox Constr. Co., Inc., 913 S.W.2d 467, 468 (Tex. 1995) (per curiam). We find an abuse of discretion only
6
when the trial court’s decision is arbitrary, unreasonable, and without reference to guiding principles. Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996).
Buccaneer argues that the Scott’s verification, dated a month earlier, did not properly verify the second motion. The verification itself however, is generic, and states:
[The attorney] appeared in person before me today and stated under oath that he is above the age of eighteen years and is fully competent to make this affidavit; that he is the attorney for Yale Scott and Leslie Scott in this case and, as such, has authority to make this affidavit; that he has read the above Motion to Reinstate Case on Docket; and that every statement contained in it is within his personal knowledge and is true and correct.
Buccaneer did not object in the trial court to adequacy of the verification or complain that it was dated before the second motion to reinstate was filed. The trial court reasonably could have concluded that, by attaching the verification to the second motion, counsel again averred that the statements in the second motion to reinstate were true and correct. Following the Texas Supreme Court’s direction in Guest to construe the verification requirement liberally to reach the merits, we hold that the trial court acted within its discretion in granting the motion to reinstate. See Guest, 195 S.W.3d at 688–89 (construing verification requirement so that “right of appeal is not unnecessarily lost to technicalities”); Fed. Lanes, Inc., 905 S.W.2d at 689–90 (holding timely-filed joint motion to reinstate satisfied
7
verification requirement). Accordingly, the trial court had jurisdiction to hear the case.
II. Uncontested Expert Testimony
Next, Buccaneer complains that the trial court rendered a verdict against the great weight and preponderance of the evidence, arguing that Buccaneer provided uncontroverted testimony that the contract could have been completed as agreed. It contends that (1) the Scotts’ case depended on the impossibility to perform the contract; (2) the Scotts could not prove the infeasibility of the additional bathroom without adducing expert testimony; and (3) the Scotts failed to controvert Branko Gligoric’s expert testimony that the bathroom could be built in compliance with city code.
In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a jury’s verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex. App.—Houston [1st Dist.] 1996, writ denied). When challenged, findings of fact are not conclusive if, as here, the record on appeal includes a complete reporter’s record. Id. When there is a reporter’s record, the trial court’s findings of fact are binding if supported by the evidence. Id. We review the factual sufficiency of the evidence supporting the challenged findings by applying the same standards that we use in reviewing the factual sufficiency of the evidence supporting jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994). In reviewing the
8
record, “we consider and weigh all of the evidence and will set aside the verdict only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.” City of Keller v. Wilson, 168 S.W.3d 802, 826 (Tex. 2005). In a bench trial, the trial court evaluates the credibility of the witnesses, determines the weight of testimony, and resolves conflicts and inconsistencies in the testimony. Dupree v. Boniuk Ints., Ltd., 472 S.W.3d 355, 363–64 (Tex. App—Houston [1st Dist.] 2015, no pet.). We may not substitute our judgment for that of the trial court if the evidence permits reasonable disagreement. Id.
The contract required that all work be completed “in compliance with all building Codes.” The Scotts introduced an email from Gligoric indicating that it would be impossible to build the bathroom to meet city code, and they testified that Gligoric stated during an inspection that the bathroom could not be built in compliance with city code. They also introduced a letter from the neighborhood architectural control committee rejecting the part of the plans regarding the bathroom. They adduced further evidence that they relied on Hegman’s representation that the bathroom could be built before entering the contract. The Scotts also adduced evidence that Buccaneer required development of appropriate construction drawings before the work had begun.
Though Gligoric testified that the bathroom could be constructed in accordance with the code and that he never informed the Scotts otherwise, given
9
his business relationship with Buccaneer, the trial court could reasonably have given less credit to Gligoric’s testimony at trial than to the Scotts’ testimony and Gligoric’s contrary statement contained in his email to them. This evidence also obviates the need to address Buccaneer’s expert testimony complaints, because Gligoric himself authored the conflicting opinion. Our review of the record demonstrates that the Scotts introduced substantial evidence in support of their claims. In light of the body of evidence presented at trial, the trial court’s finding in their favor was not against the great weight of the evidence.

Outcome: We affirm the judgment of the trial court.

Plaintiff's Experts:

Defendant's Experts:

Comments: