                                 In The
                            Court of Appeals
                   Seventh District of Texas at Amarillo
                           ________________________

                               No. 07-17-00269-CV
                           ________________________


                         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


                                    April 11, 2019

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


      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.




        1 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by the

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between the precedent of the Tenth Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.
APP. P. 41.3.

        2See Deceptive Trade Practices—Consumer Protection Act, TEX. BUS. & COM. CODE ANN. §§
17.41-924 (West 2011 & Supp. 2018).

        3 Finding of Fact Number 9 states that Baxter’s expert at trial “offered no factual or opinion testimony

regarding the proximate cause of the soil collapse around Baxter’s pool.”

        4Finding of Fact Number 18 states “[t]here was no evidence offered at trial that the pool that was
sold by Brazos Valley Pools & Hot Tubs to Baxter failed in any way as a product or through an installation
defect” and “no evidence produced at trial that the pool liner was defective and failed in any way, that the
steel supports or any of the pool equipment failed, or that the construction in excavating the ground for the
pool was the cause of the soil collapse.”
       5 Finding of Fact Number 20 states that Baxter failed to produce any evidence at trial “of the actual

and proximate cause of the soil collapse around her pool.”


                                                       2
       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




                                               3
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.




       6 Baxter’s original petition named Marc Moronof, d/b/a AAM Company, as a defendant. Marc
Morono later filed a pro se original answer. Collins later designated Marc Morono, d/b/a/ The Morono
Brothers Corp. d/b/a AAM Company a/k/a AAMCo Pool Company as a third party. Because Moronof
appears to be a misnomer, like the trial court, we address the party as Morono.

       7   Baxter did not file suit against the contractor who installed the concrete deck around her pool.


                                                      4
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




        8  Baxter did not amend her petition to add Sakara as a defendant or allege any legal theory to
pierce the corporate veil of either Sakara or Brazos Valley Pools & Hot Tubs. Neither did she amend her
petition to allege any claim against Brazos Valley Pools & Hot Tubs, either in its corporate name or common
name, or add it as a defendant. The various theories for piercing the corporate veil must be specifically
pled or they are waived, unless they are tried by consent. Endsley Elec., Inc. v. Altech, Inc., 378 S.W.3d
15, 22 (Tex. App.—Texarkana 2012, no pet.) (citing Mapco, Inc. v. Carter, 817 S.W.2d 686, 688 (Tex.
1991)). No party asserts that any of the various theories of piercing the corporate veil was tried by consent.


                                                      5
      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 inground 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 walls?

      GONZALES: That’s what we all found, you know?


      After the bench trial, the trial court sent the parties a letter finding “the correct party

was not sued in this case and that causation of the alleged damages was not proven by

[Baxter].” The letter was followed by the entry of a Take Nothing Judgment wherein the

trial court found “that Ron Collins, individually, was not doing business under an assumed




                                                6
name of Brazos Valley Pools [&] Hot Tubs.” In May 2017, the trial court adopted the

Findings of Fact and Conclusions of Law submitted by Collins.


       For purposes of analysis, some of Baxter’s issues may be grouped together. Thus,

we will group issues one through seven which primarily address whether Collins may be

liable for doing business as Brazos Valley Pools & Hot Tubs. We will then group issues

eight through fifteen which primarily address whether Baxter’s evidence at trial was

sufficient to establish causation.


       ISSUES ONE THROUGH SEVEN

       Baxter asserts that the trial court erred by finding that Collins was not individually

liable for breach of the swimming pool contract, fraud, negligent misrepresentation, and

violation of the DTPA. We disagree.


       We note that Baxter casts her issues under a standard of review that asks whether

the trial court abused its discretion by not finding Collins individually liable on her claims.

Rather than attempting to define an implied legal standard the trial applied in addressing

these issues, we will address her issues under the standard of legal and factual

sufficiency.   Thus, since Baxter had the burden of proof on whether Collins was

individually liable on her claims, we ask whether there was sufficient evidence at trial

under a cognizable legal theory sufficient to find Collins individually liable.


       STANDARD OF REVIEW

       When both legal and factual sufficiency challenges are raised on appeal, the

reviewing court must first examine legal sufficiency. See Glover v. Tex. Gen. Indemnity



                                              7
Co., 619 S.W.2d 400, 401 (Tex. 1981). In conducting a legal sufficiency review, we must

consider the evidence in the light most favorable to the verdict and indulge every

reasonable inference that supports that verdict. City of Keller v. Wilson, 168 S.W.3d 802,

821-22 (Tex. 2005). The evidence is legally sufficient if it would enable reasonable and

fair-minded people to reach the verdict under review. Id. at 827. We must sustain the

challenge only when (a) there is a complete absence of evidence of a vital fact, (b) the

court is barred by rules of law or of evidence from giving weight to the only evidence

offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than

a mere scintilla of evidence, or (d) the evidence conclusively establishes the opposite of

the vital fact in question. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003),

cert. denied, 541 U.S. 1030, 124 S. Ct. 2097, 158 L. Ed. 2d 711 (2004).


       In reviewing factual sufficiency, the reviewing court must consider, examine, and

weigh the entire record, considering the evidence in favor of, and contrary to, the

challenged findings. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex.

1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998). In doing

so, the court no longer considers the evidence in the light most favorable to the finding;

instead, the court considers and weighs all the evidence, and sets aside the disputed

finding only if it is so contrary to the great weight and preponderance of the evidence as

to be clearly wrong and unjust. Id. at 407. In conducting a sufficiency review, the trier of

fact, here the trial court, is the sole judge of the credibility of witnesses and of the weight

to be given their testimony. City of Keller, 168 S.W.3d at 819.




                                              8
        ANALYSIS

        Baxter alleged in her petitions that Collins, doing business as Brazos Valley Pools

& Hot Tubs, was the proper party to this suit. As such, she brought suit against Collins9

under Rule 28 of the Texas Rules of Civil Procedure, as follows:


        Any . . . individual doing business under an assumed name may sue or be
        sued in its . . . assumed or common name for the purpose of enforcing for
        or against it a substantive right, but on a motion by any party or on the
        court’s own motion the true name may be substituted.


TEX. R. CIV. P. 28.


        To be sued under Rule 28, a plaintiff must establish that an individual such as

Collins, or a business is (1) doing business under (2) an assumed or common name.

Seidler v. Morgan, 277 S.W.3d 549, 553 (Tex. App.—Texarkana 2009, pet. denied)

(before the use of a common name is adequate under Rule 28, there must be a showing

that the named entity is in fact doing business under that common name). No one

disputes that a claim for breach of contract could not be asserted individually against

Collins because he was not a signatory to the contract; see Endsley Elec., Inc., 378

S.W.3d at 22; Dibon Solutions, Inc. v. Martinair, No. 05-11-01586-CV, 2013 Tex. App.

LEXIS 15221, at *11-12 (Tex. App.—Dallas Dec. 18, 2013, pet. denied) (mem. op.),

however, it is conceivable that an individual such as Collins may be liable for a breach of




        9 Baxter did not file suit against Brazos Valley Pools & Hot Tubs as an individual entity. Neither
was there any evidence Collins supported the pool’s construction with personal funds, commingled personal
and company funds, manipulated or transferred Brazos Valley Pools & Hot Tubs assets or liabilities, made
loans to or from the company, prioritized himself as a creditor, or otherwise abused the entity’s corporate
form. See Endsley Elec., Inc., 378 S.W.3d at 25.


                                                    9
contract if the business is doing business in the name of the individual. See, e.g.,

Chilkewitz v. Hyson, 22 S.W.3d 825, 828-29 (Tex. 1999).


         In a legal sufficiency review, however, there must be some evidence that the

business was doing business in Collins’s name when the pool was sold to Baxter. Sixth

RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). For example, in Chilkewitz,

the Texas Supreme Court found there was some evidence an association was doing

business under the common name of an individual doctor because the stationary bore his

name on the letterhead, other documents contained the same letterhead, and the phone

number in the yellow pages was listed under the doctor’s name. 22 S.W.3d at 828-829.


         In Sixth RMA Partners, the Texas Supreme Court found that there was some

evidence that Sixth RMA used the name RMA Partners, L.P. as an assumed name when

collecting the plaintiff’s notes because RMA Partners, L.P. was used as a generic name

for all the partnerships including Sixth RMA. RMA Partners, L.P.’s letterhead was used

by Sixth RMA Partners for all purposes. Demand notices to note holders and referrals to

collection attorneys were made on the same generic letterhead and payments on notes

owned by Sixth RMA were made to RMA Partners, L.P. Six RMA Partners, 111 S.W.3d

at 52.


         Here, Baxter adduced no evidence at trial to support her theory that Collins was

individually liable on the contract. Rather, her purchase invoice, the store’s outdoor

signage, subsequent communications by mail, the pool permit, and the receipt for

payment were all issued in the name of Brazos Valley Pools or Brazos Valley Pools & Hot




                                            10
Tubs. As such, there was legally insufficient evidence at trial to establish that Collins was

doing business as Brazos Valley Pools & Hot Tubs.


        Baxter also asserts that Collins should be held liable individually because he did

not disclose his principal when she entered into the contract with Brazos Valley Pools &

Hot Tub. To establish an agency relationship, Baxter was required to prove that “the

alleged princip[al] ha[d] both the right (1) to assign the agent’s task, and (2) to control the

means and details of the process by which the agent will accomplish the assigned task.”

Schultz v. Rural/Metro Corp. of N.M.-Tex., 956 S.W.2d 757, 760 (Tex. App.—Houston

[14th Dist.] 1997, no writ) (citations omitted). The evidence at trial established that Brazos

Valley Pools & Hot Tub was Collins’s principal because it supplied him with authority to

contract on its behalf and controlled the means and details of the pool’s construction. As

such, the trial court was correct in its finding that “Collins, in his individual capacity, does

not do business under the assumed name of Brazos Valley Pools & Hot Tubs. Ron

Collins was only acting as an agent on behalf of the company.” Also, at the time of

contracting, Collins’s principal was named in numerous documents related to the contract

and Collins negotiated the pool’s price, construction, and post-construction improvements

requested by Baxter on behalf of the company. There is no evidence Collins was an

agent of Sakara10 or that he did not disclose his principal at the time of contracting.


        We hold that Baxter presented no evidence that Collins does business under the

assumed or common name of Brazos Valley Pools & Hot Tubs and Rule 28 is

        10 Baxter does not take issue with the trial court’s finding that “Collins is the owner and sole

shareholder of Sakara Ibis Corporation which does business under the assumed name of Brazos Valley
Pools & Hot Tubs. Collins is also its president and an employee of the corporation.”



                                                  11
inapplicable. See Storguard Invs., LLC v. Harris County Appraisal Dist., 369 S.W.3d 605,

617-18 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (no showing business held itself

out to the public under the common name of an individual or that business requested to

be referred to as individual in any records or communications). As such, the evidence is

legally and factually insufficient to support Baxter’s claims. Because we find that Collins,

individually, was not a proper party to the suit as a matter of law, issues one through six

are overruled and issue seven is pretermitted.11


       ISSUES EIGHT THROUGH FIFTEEN

       Baxter’s claims against Morono/AAM likewise suffer a similar fate. In challenging

the trial court’s findings against Collins/Brazos on her claims of breach of contract, fraud,

negligent misrepresentation, deceptive trade practices, and breach of an implied warranty

of good and workmanlike construction and her negligence claim against Morono/AAM for

negligence, she asserts there was legally and factually insufficient evidence to support

the trial court’s finding that Baxter failed to establish any evidence of causation. We

disagree.


       The components of proximate cause are cause-in-fact and foreseeability. Doe v.

Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). The elements may

not be established by mere conjecture, guess, or speculation. IHS Cedars Treatment Ctr.

of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex. 2003). The test for cause-

in-fact is whether the act or omission was a substantial factor in bringing about the injury


        11 See TEX. R. APP. P. 47.1. Because we hold that Collins was not a proper party with regard to

Baxter’s fraud claim, we need not decide whether the trial court misapplied the economic loss rule to
Baxter’s fraud claims.


                                                  12
without which the harm would not have occurred. Doe, 907 S.W.2d at 477. Cause-in-

fact is not shown if the defendant’s act did no more than furnish a condition which made

the injury possible. Id. The evidence must go further and show that the act was the

proximate cause of the resulting injuries, not a remote cause, and the evidence must

justify the conclusion that such injury was the natural and probable result thereof. Id.


       Every claim Baxter has asserted against Collins/Brazos and Morono/AAM has an

element of causation. See Mack Trucks v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

See also S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 847 (Tex. 2018)

(breach of contract); Bustamante ex rel. D.B. v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)

(negligence); Zorrilla v. Apyco Constr., II, LLC, 469 S.W.3d 143, 153 (Tex. 2015) (material

misrepresentation); Williamson v. Howard, 554 S.W.3d 59, 70 (Tex. App.—El Paso 2018,

no pet.) (deceptive trade practices); Paragon General Contractors, Inc. v. Larco Constr.,

Inc., 227 S.W.3d 876, 886 (Tex. App.—Dallas 2007, no pet.) (breach of warranty for

services).


       Gonzales, Baxter’s expert, testified at trial as follows:


       GONZALES: When you install an inground 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.



                                              13
        QUESTION: Okay. And was there just dirt or mud around the walls?

        GONZALES: That’s what we all found, you know?


        At best, his testimony does nothing more than establish that Collins/Brazos and

Morono/AAM may have furnished a condition that made the injury possible. As a result,

the trial court was left to guess or speculate as to whether their acts or omissions, if any,

caused the soil to collapse, which in turn caused the pool to collapse.


        Baxter asserts the cause of the injury was so obvious that nothing more need be

proven; i.e., res ipsa loquitor.12 That is, she posits that a new pool should not collapse

after only a few weeks unless the contractor was negligent in its construction.


        The doctrine of res ipsa loquitor is a “rule of evidence by which negligence may be

inferred by the injury; it is not a separate cause of action from negligence.” Haddock v.

Ampsiger, 793 S.W.2d 948, 950 (Tex. 1990). To successfully invoke the doctrine, a

plaintiff must prove (1) an accident of this character does not ordinarily occur in the

absence of negligence and (2) the instrument that caused the accident was under the

exclusive management and control of the defendant. Marathon Oil, 632 S.W.2d at 573.

“Inherent in the latter factor is the requirement that the defendant be proved to have some

causal connection with the plaintiff’s injury.” Gaulding v. Celotex Corp., 772 S.W.2d 66,

68 (Tex. 1989).




        12 Res ipsa loquitor is Latin for “the thing speaks for itself.” Marathon Oil Co. v. Sterner, 632 S.W.2d

571, 573 (Tex. 1982).


                                                      14
       Here, Baxter failed to present any evidence at trial, much less expert testimony,

that either Collins/Brazos or Morono/AAM caused the pool to collapse. Moreover, at the

time of the collapse, neither party had control of the pool. Rather, the pool was under

Baxter’s exclusive control and a subsequent contractor had materially altered the surface

adjacent to the pool by building a concrete deck around the pool shortly after

Collins/Brazos and Morono/AAM completed their work on the pool. Accordingly, issues

eight through fifteen are overruled.


       CONCLUSION

       The trial court’s judgment is affirmed.




                                          Patrick A. Pirtle
                                               Justice




                                             15
