                                      In The

                               Court of Appeals

                    Ninth District of Texas at Beaumont

                              ___________________

                               NO. 09-16-00153-CV
                              ___________________


                       TRAVIS SPAULDING, Appellant

                                        V.

                          TROY SUMRALL, Appellee

__________________________________________________________________

             On Appeal from the County Court at Law No. 1
                        Jefferson County, Texas
                        Trial Cause No. 118028
__________________________________________________________________

                          MEMORANDUM OPINION

      The main issue we are required to consider in resolving this appeal is whether

lay testimony about the value of a classic car, which was acquired by trade, offers

any probative value to prove what a car like the one the plaintiff claimed he had

acquired in the trade should have been worth. The trial court employed a benefit-of-

the-bargain measure of damages when awarding damages, and based its award on


                                         1
the plaintiff’s testimony about what a car like the one he believed he acquired in the

trade should have been worth.

      We conclude the testimony before the trial court regarding the value of the

classic car was incompetent to prove the car’s market value on the date the trade

occurred. Because the plaintiff’s lay opinion about the car’s value was the only

evidence admitted in the trial regarding the car’s value, we conclude the plaintiff

failed to meet his burden to establish that he suffered any damages due to the trade

he agreed to make to acquire the classic car. Accordingly, we reverse the trial court’s

judgment and render a take-nothing judgment in the defendant’s favor.

                                     Background

      This appeal stems from a dispute between the two parties who made a trade

involving a 1974 Corvette Stingray. In the trade, the plaintiff exchanged his 25-foot

power catamaran in return for the defendant’s foreign sports car, a 1974 Corvette

Stingray, and $20,000. In the suit, the plaintiff claimed that the Stingray had been

represented as having all original equipment, including a 454-cubic-inch engine,

when the car had been modified with an aftermarket 454-cubic-inch engine that

replaced the car’s original 350-cubic-inch engine.

      The evidence from the trial shows Troy Sumrall purchased the catamaran for

$55,000 from a bankruptcy estate. After Sumrall acquired the catamaran, he

                                          2
advertised it for sale on the internet for $65,000. Sumrall’s listing indicated that he

would consider both cash proposals and trades. When Travis Spaulding, the

defendant in the proceedings in the trial court, learned the catamaran was for sale,

he called Sumrall and asked if he could look at it. Eventually, Spaulding traveled

from his home in Blanco County to Sumrall’s home in Jefferson County to examine

the catamaran. After discussing the amount of cash that Sumrall wanted for his

catamaran, the parties settled upon an agreement that involved a trade. The

agreement the parties made required Sumrall to convey his catamaran to Spaulding

for Spaulding’s foreign sports car and a fishing boat, and required Spaulding to give

Sumrall between $20,000 to $25,000 in cash, with the understanding that the exact

amount of cash that would change hands would be decided after Sumrall had

examined Spaulding’s sports car and fishing boat, items that were located at

Spaulding’s home in Blanco County.

      Subsequently, Sumrall took his catamaran to Blanco County where he

inspected Spaulding’s fishing boat and sports car. During the trial, Sumrall testified

that his inspection revealed that the fishing boat was in poor condition, which led

him to decide that he did not want it. After looking at Spaulding’s fishing boat,

Sumrall inspected the sports car, and he determined that it was in a condition he

found acceptable for the purposes of the trade.

                                          3
      As the agreement was about to fail due to the condition of Spaulding’s fishing

boat, Spaulding offered to substitute a 1974 Corvette Stingray that he and his wife

owned in the transaction as a replacement for trading his fishing boat. During the

trial, both parties agreed that Spaulding first mentioned the Stingray when Spaulding

was in Jefferson County, and that the Stingray was not included in the trade that the

parties had settled upon when they made the agreement they reached in Jefferson

County regarding the trade. Nonetheless, according to Sumrall, when Spaulding first

mentioned that he owned the Stingray while the parties were in Jefferson County,

Spaulding said the car was “all original,” and that it had a factory installed 454-

cubic-inch engine. After Sumrall went to Blanco County and Spaulding offered to

substitute the Stingray to save the parties’ trade, Sumrall agreed to an exchange that

required him to exchange the catamaran for Spaulding’s Stingray, a foreign sports

car, and $20,000 in cash.

      After acquiring the Stingray, Sumrall offered to sell it on the internet for

$32,000. During the trial, Sumrall testified that he determined what he should ask

for the Stingray after reviewing advertised prices for Stingrays like the one he

believed he had acquired from Spaulding. According to Sumrall, the Stingray was

listed as having “all original” equipment in the listing that he used to advertise the

car for sale. Sumrall received several inquiries in response to the listing for the

                                          4
Stingray, but got no offers. According to Sumrall, one of the individuals who

contacted him informed him that the Stingray had originally been equipped with a

350-cubic-inch engine, and he also learned from the same caller that the engine now

in the car was not the engine the car came with when it was originally sold. Sumrall

explained that the caller told him that this information could be determined by using

the car’s vehicle identification number (VIN),1 from information that was widely

available.

      After learning that the Stingray was not equipped with its original engine,

Sumrall changed his listing on the Stingray, disclosing that the Stingray was

equipped with an aftermarket, 454-cubic-inch engine and aftermarket badges.

Sumrall ultimately sold the Stingray for $14,000, $18,000 less than the price he

originally asked for the car when it was first listed for sale.

      In February 2011, Sumrall sued Spaulding in Jefferson County alleging that

Spaulding had misrepresented the car as being equipped with all original equipment




      1
        The testimony indicates that before Spaulding obtained the Stingray, the
engine, car badges, and emissions sticker had been replaced with aftermarket
equipment to reflect that the Stingray was equipped with a 454-cubic-inch engine.
The testimony also indicates that a person who knew about classic cars could
determine by examining the car’s VIN whether the currently installed engine was
the one that was originally installed in the car when it came out of the factory.

                                            5
when it was not. The theories in Sumrall’s petition include claims for breach of

contract, deceptive trade practices, negligent misrepresentation, and fraud.

      Spaulding filed a motion asking that the case be transferred to Blanco County

in response to Sumrall’s suit. According to Spaulding’s motion, the agreement for

the Stingray occurred in Blanco County, not Jefferson County, and he claimed that

Jefferson County was not a county of proper venue for the suit. When Sumrall

responded to Spaulding’s motion, he alleged that “[w]hile it is true that [he] traveled

to Spaulding’s residence to view the assets,…the terms and conditions of the

agreement…[were] negotiated…in Jefferson County, Texas.”

      The trial court conducted a hearing on Spaulding’s motion to transfer venue

in August 2012. One week later, the motion was denied by written order.

Subsequently, Spaulding amended his answer and filed a counterclaim against

Sumrall, alleging that Sumrall had falsely represented that the catamaran had “the

protection of the original manufacturer’s warranty.”

      The case went to trial in February 2013. Approximately six weeks later, the

trial court sent the parties a letter advising that the court had decided to rule in

Sumrall’s favor, to award Sumrall damages of $18,000, and to award Sumrall $8,500




                                          6
in attorney’s fees.2 For reasons that are not apparent from the record, approximately

three years passed from the date the trial court sent the parties the letter advising

them that it was finding for Sumrall and the date the trial court signed the final

judgment. When the judgment issued, the trial court awarded Sumrall $18,000 in

damages and $8,500 in attorney’s fees. The judgment reflects that the court denied

Spaulding any relief on his counterclaim.

       Following the trial, Sumrall and Spaulding both asked that the trial court

reduce its findings of fact and conclusions of law to writing. When the trial court

reduced its findings to writing, the court made it clear that Sumrall had prevailed

solely on his deceptive trade practices claim. While Spaulding filed a motion for new

trial, the trial court never signed a written order overruling the motion; therefore,

that motion was deemed to have been overruled by operation of law. See Tex. R.

Civ. P. 320, 329b(c). Thereafter, Spaulding appealed.

                                              Issues

       In three appellate issues, Spaulding argues (1) the trial court erred by denying

his motion to transfer venue, (2) insufficient evidence was admitted during the bench

trial the trial court conducted to resolve the parties’ dispute to support the trial court’s


       2
          The trial court’s letter is silent regarding the legal theory on which it decided
to rule in Sumrall’s favor. Additionally, the letter contains no information regarding
the trial court’s ruling on Spaulding’s counterclaim.
                                                7
damages award of $18,000, and (3) the overwhelming great weight and

preponderance of the evidence introduced during the trial is inconsistent with the

trial court’s ruling on Spaulding’s counterclaim.

                                        Venue

      In his first issue, Spaulding argues that Sumrall failed to prove that Jefferson

County was a county of proper venue for the suit. According to Spaulding, the

evidence from the trial shows that the Stingray’s involvement in the trade arose in

Blanco County, not Jefferson County. Spaulding suggests the evidence reflects that

a “substantial part of the events giving rise to the lawsuit” occurred in Blanco

County, which is the county where he asked the trial court to transfer Sumrall’s

lawsuit. According to Spaulding, Blanco County was a county of proper venue for

the suit pursuant to section 15.002(a)(1) of the Texas Civil Practice and Remedies

Code. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(1) (West 2017)

(providing, in pertinent part, that “all lawsuits shall be brought: (1) in the county in

which all or a substantial part of the events or omissions giving rise to the claim

occurred”). Spaulding concludes that because Sumrall failed to establish that venue

for the suit was proper in Jefferson County, the judgment must be reversed and the

case transferred to Blanco County for another trial.



                                           8
      Under Texas law, the plaintiff can file suit in any county of proper venue. See

Wilson v. Tex. Parks & Wildlife Dep’t, 886 S.W.2d 259, 260 (Tex. 1994). In this

case, Sumrall and Spaulding both agree that section 15.002 of the Texas Civil

Practice and Remedies Code provides the venue rule that controlled venue for

Sumrall’s lawsuit. Therefore, to succeed on his motion to transfer venue, Spaulding

must establish in the appeal that no substantial part of the events giving rise to

Sumrall’s claims occurred in Jefferson County, and he cannot satisfy that burden

merely by showing that substantial parts of the events or omissions that gave rise to

the suit also occurred in Blanco County. See Velasco v. Tex. Kenworth Co., 144

S.W.3d 632, 635 (Tex. App.—Dallas 2004, pet. denied).

      When evaluating a trial court’s venue ruling, we look to the record as a whole,

and we review all of the evidence that was before the trial court pertinent to the trial

court’s venue ruling in the light that favors the trial court’s ruling on the motion to

transfer. See Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993). In this case,

we must decide whether the evidence before the trial court supports the trial court’s

ruling that a substantial part of the events or omissions giving rise to Sumrall’s claim

occurred in Jefferson County. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002(a)(1).

Spaulding characterizes the evidence about the discussions about his Stingray that

occurred in Jefferson County as “nothing more than small-talk[.]” Nonetheless, the

                                           9
trial court could have reasonably concluded from the evidence that Spaulding

misrepresented the qualities of the Stingray when the parties were negotiating in

Jefferson County even if the Stingray was not included in the agreement the parties

reached there, and that the misrepresentation about the Stingray’s qualities in

Jefferson County were material to the trade the parties ultimately made when they

were in Blanco County.

      Essentially, the trial court could have viewed the trade as involving one

agreement that was later modified to include the Stingray in Blanco County. The

trial court was not required to view the trade as two completely separate deals, one

made in Jefferson County and a second that was made in Blanco County. The trial

court’s view of the transaction as one agreement that was modified in Blanco County

would not have been unreasonable since Spaulding never pleaded and never argued

that a novation occurred in Blanco County regarding the agreement the parties

reached while negotiating in Jefferson County. See Honeycutt v. Billingsley, 992

S.W.2d 570, 577 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (indicating that

novation is an affirmative defense); see also Tex. R. Civ. P. 94 (requiring that a party

affirmatively set forth certain defenses, including any “matter constituting an

avoidance or affirmative defense”).



                                          10
      “Novation is the substitution of a new agreement between the same parties or

the substitution of a new party on an existing agreement.” New York Party Shuttle,

LLC v. Bilello, 414 S.W.3d 206, 214 (Tex. App.—Houston [1st Dist.] 2013, pet.

denied) (citing Honeycutt, 992 S.W.2d at 576). “Where a novation occurs, only the

new agreement may be enforced.” Id. Thus, the trial court could have viewed the

transaction as involving one agreement that was subsequently modified with the

material misrepresentation regarding the Stingray as having occurred in Jefferson

County. Compare Chastain v. Cooper & Reed, 257 S.W.2d 422, 424 (Tex. 1953)

(indicating that where a novation occurs, the doctrine discharges the obligations of

the parties under the original agreement so that only their obligations under their

new agreement are enforceable).

      Proving that a defendant made a misrepresentation involving the transaction

on which a deceptive trade practices claim is based is a substantial part of proving

claims under the Deceptive Trade Practices Act. See Tex. Bus. & Com. Code Ann.

§ 17.46(b)(7) (West Supp. 2017); James v. Mazuca & Assocs. v. Schumann, 82

S.W.3d 90, 95 (Tex. App.—San Antonio 2002, pet. denied) (citing Doe v. Boys

Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex. 1995)). On this record,

the trial could have reasonably found that Spaulding’s actionable misrepresentation,

that the Stingray was all original, is a misrepresentation that was made in Jefferson

                                         11
County. See Tex. Civ. Prac. & Rem. Code Ann. § 15.064(b) (West 2017) (requiring

appellate courts to “consider the entire record, including the trial on the merits[,]” in

resolving a party’s appeal of a trial court’s venue ruling). Because the alleged

misrepresentation regarding the Stingray was a substantial part of Sumrall’s

deceptive trade practices claim, we hold the trial court could reasonably find that

venue for that claim was proper in Jefferson County. See id. § 15.002(a)(1).

Accordingly, we overrule Spaulding’s first issue.

                                          Damages

      In issue two, Spaulding argues that insufficient evidence supports the trial

court’s award of $18,000 to Sumrall for the damages that Sumrall allegedly suffered

due to the parties’ trade. In his brief, Spaulding argues that Sumrall was the only

witness who testified about the Stingray’s value, and he claims the testimony before

the trial court failed to establish that Sumrall was qualified to express a reliable

opinion about the market value of the car that was relevant to proving the car’s

market value when the trade occurred.

      In an appeal, a party’s challenge to the legal and factual sufficiency of the

evidence proving the party’s damages is reviewed based upon established standards.

Evidence is legally sufficient to support a factfinder’s verdict if the evidence

admitted in the trial “would enable reasonable and fair-minded people to reach the

                                           12
verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

When reviewing the evidence to evaluate if it was sufficient to support the trial

court’s verdict, “we credit evidence that supports the verdict if reasonable jurors

could, and disregard contrary evidence unless reasonable jurors could not.” Kroger

Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006) (citing City of Keller,

168 S.W.3d at 827); see Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 114

(Tex. App.—Beaumont 2005, pet. denied). We sustain legal sufficiency challenges

“when, among other things, the evidence offered to establish a vital fact does not

exceed a scintilla.” Suberu, 216 S.W.3d at 793. “Evidence does not exceed a scintilla

if it is ‘so weak as to do no more than create a mere surmise or suspicion’ that the

fact exists.” Id. (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.

2004)). With respect to a factual sufficiency challenge, we examine the entire record

and consider all of the evidence the trial court admitted in the trial to determine

whether the finding the appellant challenges in the appeal is so contrary to the

overwhelming weight of the evidence that the finding is clearly wrong and unjust.

Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986).

       The trial court relied on the property owner rule when it admitted Sumrall’s

testimony that he thought an all original 1974 Stingray was worth $32,000.

“Generally, a property owner is qualified to testify to the value of [his] property even

                                          13
if [the property owner] is not an expert and would not be qualified to testify to the

value of other property.” Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores,

Ltd., 337 S.W.3d 846, 852-53 (Tex. 2011) (citing Porras v. Craig, 675 S.W.2d 503,

504 (Tex. 1984), abrogated in part on other grounds by Gilbert Wheeler, Inc. v.

Enbridge Pipelines (E. Tex.), L.P., 449 S.W.3d 474, 483 (Tex. 2014)). “The rule is

based on the presumption that an owner will be familiar with [his] own property and

know its value.” Reid Rd., 337 S.W.3d at 852-53 (citing Porras, 675 S.W.2d at 504).

Approximately ten years ago, this Court explained that “[w]hen the owner is familiar

with his property’s value, ‘the owner of the property can testify to its market value,

even if he could not qualify to testify about the value of like property belonging to

someone else.’” Royce Homes, L.P. v. Humphrey, 244 S.W.3d 570, 579-80 (Tex.

App.—Beaumont 2008, pet. denied) (citing Porras, 675 S.W.2d at 504).

      In this case, Sumrall was required to prove what the Stingray was worth when

he made his trade, not when he later sold the car. And, even if Sumrall became the

property owner immediately after the trade occurred, if the testimony shows that the

owner’s opinion about the value of his property is speculative, it will be deemed to

be insufficient to support a damages award. See Royce Homes, 244 S.W.3d at 580.

While a property owner is entitled to testify to the value of his property, lay opinions



                                          14
regarding value are not sufficient to establish an item’s market value if the record

shows that the owner’s opinion was speculative. Id.

      Assuming without deciding that the property owner rule applies to Sumrall’s

testimony,3 an owner’s testimony about an item’s market value does not

automatically mean that the owner’s opinion is competent to prove the item’s market

value. See Nat. Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156 (Tex. 2012).

Instead, the record must establish that the owner’s opinion about the item’s market

value meets the “‘same requirements as any other opinion evidence.’” Id. (quoting

Porras, 675 S.W.2d at 504).

      In his brief, Spaulding argues that Sumrall’s testimony does not support the

trial court’s damage award because Sumrall’s testimony reflects that he could not



      3
         Sumrall did not own the Stingray until after the parties completed their trade,
and the issue on which his damages were based concerned the Stingray’s value when
the trade occurred; i.e., when Sumrall became the Stingray’s owner. Our review of
the record does not show that Sumrall ever provided the trial court with any legal
authority for the proposition that a purchaser is presumed to know the value of the
property he has purchased on the date he acquired the property, and the presumption
that an owner knows the value of his property is presumably based on the concept
that owners of property are familiar with their property’s value because they have
held the property for the length of time needed to become acquainted with the value
of the property they own. While we doubt the property owner rule applied under the
circumstances in this case, Spaulding neither argued at trial nor on appeal that
Sumrall’s testimony was inadmissible because Sumrall, although the purchaser of
the property, had not owned it for a sufficient period of time when the trade occurred
to infer that he knew the car’s value.
                                           15
“differentiate   between     different   value-enhancing     or    value-diminishing

characteristics” regarding Stingrays. Our review of the testimony reflects that

Sumrall acknowledged that he did not know if the addition of an aftermarket,

unoriginal part would diminish a collectable car’s value. Additionally, the evidence

from the trial shows that Sumrall did not know how to determine how a car was

originally equipped by looking at information readily available by using the car’s

VIN. Moreover, Sumrall’s testimony in the case specifically shows how he

determined the Stingray’s value. According to Sumrall, after looking on the internet

to see what prices were listed on cars similar to the car he thought he got from

Spaulding, he decided to ask $32,000 for the Stingray. Our review of the testimony

in the trial further reflects that no one other than Sumrall addressed the value of a

1974 Stingray, equipped with an original, 454-cubic-inch engine like the one

Sumrall thought he acquired in the trade.

      In determining the value of a car, a car’s owner does not become an expert on

the car’s value solely by relying on online advertising to demonstrate his familiarity

with the market value of his property. See Balderas-Ramirez v. Felder, 537 S.W.3d

625, 633 (Tex. App.—Austin 2017, pet. denied) (explaining that the asking prices

for cars advertised on the internet, as opposed to the prices for which the cars were

actually sold, provided no basis for a witness’s opinion regarding her car’s market

                                         16
value). Generally, asking prices for property are not relevant to determining what

the item’s market value is since an item’s market value is “‘the price the property

will bring when offered for sale by one who desires to sell, but is not obliged to sell,

and is bought by one who desires to buy, but is under no necessity of buying.’”

PlainsCapital Bank v. Martin, 459 S.W.3d 550, 556 (Tex. 2015) (quoting City of

Harlingen v. Estate of Sharboneau, 48 S.W.3d 177, 182 (Tex. 2001)).

      Under Texas law, the testimony of a property owner regarding the item’s

value is the functional equivalent of expert testimony. Justiss, 397 S.W.3d at 159.

As such, the testimony of a property owner is judged using the same standards that

apply to the testimony of experts. Id. Because the record shows that Sumrall did not

have the expertise to provide the trial court with a reliable opinion regarding the

market value of a 1974 original Stingray, equipped with a 454-cubic-inch engine,

his testimony that the car was worth $32,000 is legally insufficient to support the

trial court’s damage award.

      Generally, when an appellate court sustains a party’s legal sufficiency

challenge in an appeal, the court must then render judgment against the party that

bore the burden of proof at the trial. Id. at 162. In this case, Sumrall bore the burden

of proving the damages caused by the trade. Additionally, we note that Sumrall’s

brief completely failed to include any response to Spaulding’s arguments that

                                          17
Sumrall’s testimony offered no evidence to support the trial court’s damage award.

Because Sumrall failed to present any reliable evidence to prove the amount of the

damages he suffered from the trade that he made with Spaulding, we conclude the

general rule must be followed. Id. Therefore, we reverse the trial court’s judgment

and render judgment that Sumrall take nothing on his claims.4 See Tex. R. App. P.

43.3.

                                      Counterclaim

        In his third issue, Spaulding complains that the trial court erred when it refused

to find in his favor on his counterclaim alleging that Sumrall had misrepresented the

catamaran as having an original manufacturer’s warranty. According to Spaulding,

the ruling the trial court made on his counterclaim is contrary to the great weight and

preponderance of the evidence.

        “When a party attacks the factual sufficiency of an adverse finding on an issue

on which [the party] has the burden of proof, [the party] must demonstrate on appeal

that the adverse finding is against the great weight and preponderance of the

evidence.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (citing

Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)). Challenges to the legal


        4
          Given our conclusion that legally insufficient evidence was admitted in the
trial to support the trial court’s judgment, we need not address Spaulding’s argument
that this same evidence is also factually insufficient to support the trial court’s award.
                                            18
sufficiency of the evidence are either “no evidence” challenges or “matter of law”

challenges, depending on which party had the burden of proof on the matter during

the trial. Raw Hide Oil & Gas, Inc. v. Maxus Expl. Co., 766 S.W.2d 264, 275 (Tex.

App.—Amarillo 1988, writ denied). If a party attacks the legal sufficiency of the

evidence supporting an adverse finding on an issue for which it did not have the

burden of proof, the party must, on appeal, show that no evidence supports the trial

court’s finding. Croucher, 660 S.W.2d at 58; Christus St. Mary Hosp. v. O’Banion,

227 S.W.3d 868, 873 (Tex. App.—Beaumont 2007, pet. denied). In reviewing a

party’s factual sufficiency challenge to a finding on which that party had the burden

of proof, we “set aside the verdict only if it is so contrary to the overwhelming weight

of the evidence as to be clearly wrong and unjust.” Royce Homes, 244 S.W.3d at 575

(quoting Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)). As long as the evidence

falls within the zone of reasonable disagreement, we cannot substitute our judgment

for that of the fact finder. City of Keller, 168 S.W.3d at 822.

      According to Spaulding, after acquiring the catamaran, he tried to activate the

warranty. At that point, he learned that the catamaran was still registered to the boat’s

original owner and that Sumrall had never registered it. Spaulding then explained

that the catamaran’s manufacturer advised him that the catamaran had a transferrable

warranty that could be purchased for approximately $1,300, but that the warranty

                                           19
was unavailable if the boat had changed hands more than once. Additionally,

Spaulding stated that he got the company that manufactured the catamaran’s motors

to honor the warranty on the motors because Sumrall had never registered his

ownership of the catamaran with the manufacturer.

          A copy of the catamaran’s warranty was also admitted into evidence in the

trial. With respect to the language regarding a transfer of the warranty, the agreement

states:

                 7. Single Transferability of Warranty. This limited warranty
          may be transferred once to a subsequent purchaser of the boat during
          the first five (5) years of the warranty period, provided that such
          subsequent purchaser pays the required transfer fee [to the entity that
          manufactured the boat’s hull] and registers his ownership with [the
          entity that manufactured the boat’s hull] within thirty (30) days of such
          purchase. After transfer, this warranty shall be in effect for the
          remainder of its original term.

          The evidence before the trial court reflects that Sumrall disputed Spaulding’s

characterization of what he said about the catamaran’s warranty when they were

discussing the trade. During the trial, Sumrall testified that he thought the boat had

a “transferrable warranty…10 or 15 year boat warranty[,]” and that he relayed that

information to Spaulding when Spaulding purchased the boat. Given Spaulding’s

testimony that Sumrall never arranged to transfer the warranty on the catamaran, the

trial court could have reasonably concluded that Spaulding could have arranged to

have the warranty transferred by paying the $1,300 to activate the warranty on the
                                       20
catamaran. Therefore, the trial court could have reasonably determined based on the

testimony and evidence before it that Sumrall’s representation regarding the

availability of a warranty was not knowingly false.

      When reviewing a challenge attacking the trial court’s findings regarding

disputed facts, an appellate court is not to substitute its judgment for that of the

factfinder “so long as the evidence falls within this zone of reasonable

disagreement.” City of Keller, 168 S.W.3d at 822. We are also not authorized to

ignore a trial court’s findings unless the evidence admitted during the trial

establishes that the trial court’s findings were so contrary to the evidence that the

trial court’s resolution of the matter should be set aside because it was “clearly wrong

and unjust.” Dow Chem. Co., 46 S.W.3d at 242 (citing Pool, 715 S.W.2d at 635).

      On this record, whether the catamaran had transferable warranties when

Spaulding acquired the catamaran was in dispute. As the factfinder, the trial court

could have reasonably concluded that Sumrall did not knowingly misrepresent that

warranties were still available. For these reasons, we hold that Spaulding is not

entitled to another trial based on the counterclaim he filed against Sumrall. See City

of Keller, 168 S.W.3d at 822. Spaulding’s third issue is overruled.




                                          21
                                   Conclusion

      We conclude that Sumrall failed to introduce legally sufficient evidence to

establish the amount of the damages he suffered due to the trade that he made with

Spaulding. We further conclude the evidence allowed the trial court to determine

that Jefferson County was a county of proper venue for Sumrall’s deceptive trade

practices claim. Finally, we conclude that the trial court’s ruling on Spaulding’s

counterclaim is not inconsistent with the greater weight and preponderance of the

evidence admitted in the trial. Accordingly, the trial court’s judgment is reversed

and judgment rendered in Spaulding’s favor that Sumrall recover nothing on his

claims.

      AFFIMRED IN PART, REVERSED AND RENDERED IN PART.




                                             ______________________________
                                                    HOLLIS HORTON
                                                         Justice



Submitted on March 13, 2018
Opinion Delivered May 24, 2018

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


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