1

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-17-00128-CV

____________________

U.S. PLY, INC., Appellant

V.

ARCI, LTD., Appellee

_______________________________________________________ ______________

On Appeal from the 284th District Court

Montgomery County, Texas

Trial Cause No. 14-03-03055-CV 

________________________________________________________ _____________

MEMORANDUM OPINION 

 

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 
2

merit or were not properly preserved for appellate review. Thus, we affirm the 

judgment the trial court signed following the trial.

Background

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 
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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 
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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 

 

1 Walker did not testify in the trial, and Jody’s testimony is the only testimony 

in the record explaining what he and Walker discussed that led ARCI to switch from 

the products it had been using to U.S. Ply’s products for these roofs. 
5

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
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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.
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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. 

Issues

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 
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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

 

2 Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Anderson v. City of Seven 

Points, 806 S.W.2d 791, 794 (Tex. 1991).

3 Anderson, 806 S.W.2d at 794.

4 McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); see also City 

of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).

5 See 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).
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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 

 

6 See Tex. R. Civ. P. 297 (requiring a party to file a notice of past due findings 

if the trial court fails to provide its findings within thirty days of the date the party 

filed its original request for them).

7 See Seger v. Yorkshire Ins. Co., Ltd., 503 S.W.3d 388, 401 (Tex. 2016) 

(citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83-84 (Tex. 1992)).

8 See City of Keller, 168 S.W.3d at 823.

9 Id.
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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 factualsufficiency 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 

 

10 Id. at 827.

11 Id. 

12 Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).

13 See Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989); 

Cain, 709 S.W.2d at 176.

14 See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 

2002).
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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.

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

Liability

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

 15 Id. 

16 Id.

17 In issue one, U.S. Ply also argues that not enough evidence was before the 

trial court to support its finding that ARCI needed to replace the roof that it installed 

on building one. U.S. Ply makes essentially the same argument in issue six. Because 

the arguments are so similar, we address them together in analyzing U.S. Ply’s sixth 

issue. 
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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.

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18 U.S. Ply advances the same complaints about the admissibility and 

reliability of Hughes’ testimony in issues two through five. We will address U.S. 

Ply’s complaints about Hughes’ qualifications and whether his testimony was 
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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 

 

reliable in discussing those issues. Nevertheless, because we conclude that the trial 

court had the discretion to allow Hughes to testify and to find his testimony reliable, 

we conclude the trial court could reasonably rely on his testimony in reaching its 

verdict.
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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 

 19 See Blackstone Med., Inc. v. Phoenix Surgicals, L.L.C., 470 S.W.3d 636, 

648 (Tex. App.—Dallas 2015, no pet.) (“An appellant must attack all independent 

bases or grounds that fully support a complained of ruling or judgment.”).

20 See Tex. Bus. & Com. Code Ann. § 2.313(a)(2) (West 2009) (providing that 

“[a]ny description of the goods which is made part of the basis of the bargain creates 

an express warranty that the goods shall conform to the description”); id. § 

2.314(b)(6) (West 2009) (stating that, for a good to be merchantable, it must 

“conform to the promises or affirmations of fact made on the container or label if 

any”); id. § 17.46(b)(5) (West Supp. 2018) (making it a deceptive trade practice to 

represent that goods have characteristics or benefits they do not have).

21 See Tex. R. App. P. 47.1.
15

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°F or higher and when RapidGRIP is at least 70°F 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 
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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 lateMarch 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. 

 

22 See Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675, 686 (Tex. 2002) 

(stating that reliance is an element a plaintiff must prove to show the defendant 

breached an “express warranty (to a certain extent)”).

23 See Tex. Bus. & Com. Code Ann. § 2.313(a)(2); Redman Homes, Inc. v. 

Ivy, 920 S.W.2d 664, 668 (Tex. 1996) (indicating that circumstantial evidence may 

establish a fact issue showing a product malfunctioned). 
17

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 
18

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°F. 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. 
19

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°F

and the RapidGRIP rolls were at least 70°F; (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) 

 

24 Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (citing Union 

Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995)). 
20

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. 
21

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°F or when the rolls were not at 

least 70°F. 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°F

on the roof.

25 Hughes and Jody testified that the temperatures on a building’s roof is 

 

25 The ARCI foreman in charge of installing the roof on apartment building 

one, Toro Mendoza, did not testify in the trial. Marshall explained that he had known 

Mendoza for over twenty years, that Mendoza left ARCI shortly after he finished 
22

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°F 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 

 

working on building one at Sunningdale, and that Mendoza left because he had 

“personal legal issues” and “personal stuff going on.” 
23

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 
24

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 RapidGRIP on the roofs. In his testimony, Hoecherl agreed that he never saw 

any evidence where water migrated below the RapidGRIP.26 Under the 

 26 We note that Hoecherl stated that the absence of moisture does not show 

that no water entered the roof because water evaporates. Yet Hoecherl couched his 

testimony as problems that “could cause” a roof to fail and he never stated that, in 

his opinion, water penetrated the roofs and explained why the RapidGRIP 

malfunctioned. A letter that BES sent to the owner’s architect in late-May 2013, 

which was signed by Jerry Abendroth, who is the partner in charge of the 

investigation BES was hired to do at Sunningdale, states that “[s]ince BES was not 

involved during the installation of the roof system, we are unable to definitively 

determine the cause or extent of the un-adhered roof membrane.” This letter was 

also admitted into evidence during the trial. 
25

circumstances, the trial court could have concluded that water penetration either did 

not occur or was not a substantial cause for the RapidGRIP’s malfunction.

We conclude the record contains conflicting evidence about whether ARCI’s 

storage, workmanship, or installation errors caused the roofs to fail.

27 In a case tried 

to the bench, the trial court acts as the factfinder and determines what testimony it 

finds credible.

28 It also weighs the relevant evidence when resolving the contested 

issues of fact in a trial.29 On this record, we conclude the trial court could have 

reasonably rejected U.S. Ply’s claims that the RapidGRIP malfunctioned because 

ARCI failed to store or install it properly. We further conclude that legally and 

factually sufficient evidence supports the trial court’s findings on ARCI’s breach of 

express warranty claims. Because we have found the record supports the trial court’s 

verdict on ARCI’s breach of express warranty claims, we need not address whether 

 

27 See City of Keller, 168 S.W.3d at 814 (explaining that under a legal 

sufficiency review, the appellate court cannot disregard evidence that would allow 

the factfinder to make only one inference). 

28 See Mar. Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998) 

(explaining that under a factual sufficiency review, the appeals court cannot 

substitute its conclusion for that of the factfinder when the factfinder’s conclusion is 

supported by the inferences reasonably available from the evidence admitted in the 

trial). 

29 Id.
26

the evidence also supports the judgment on its breach of implied warranty and DTPA 

claims.30 For these reasons, we overrule U.S. Ply’s first, sixth, and seventh issues. 

Damages

In issue eight, U.S. Ply argues the evidence does not support the trial court’s 

conclusion that ARCI was entitled to damages for replacing the roof on building 

one.

31 According to U.S. Ply, because it was willing to guarantee the original roof 

on building one, the expenses ARCI incurred to replace it were unnecessary. In 

response, ARCI argues it did not replace the roof on building one, but instead 

repaired the roof by adding additional layers of roofing material over it based on the 

repair method recommended to the project’s owner by BES. 

The evidence admitted in the trial shows that BES, who was hired by 

Sunningdale’s architect, recommended that ARCI repair the roof on building one by

“[overlaying it] with a new two-ply modified bitumen roof system.”32 Steve Kratky, 

 

30 See Tex. R. App. P. 47.1.

31 In its appeal, ARCI has not disputed the damages the trial court awarded to 

compensate ARCI for repairing the roof on building two. In closing argument, U.S. 

Ply’s attorney conceded that U.S. Ply owed ARCI for those repairs.

32 The recommendation to use an overlay repair on the roof came from Kevin 

Palma and Jerry Abendroth. Abendroth testified in the trial that he helped start BES, 

and the letter he signed shows that he was the project manager for BES for the 

evaluation the company did on the roofs at Sunningdale.
27

a Construction Supervisors’ employee, was involved in the discussions that occurred 

between ARCI and Construction Supervisors about the repairs needed on building 

one. During the trial, Kratky testified that ARCI repaired that roof by overlaying the 

existing roof system with other plies of material that are used to build modifiedbitumen roofs. While U.S. Ply misstates the evidence in claiming the roof was 

replaced, we nonetheless understand its argument to assert that the cost ARCI 

incurred to repair the roof on building one was unnecessary because U.S. Ply was 

willing to guarantee it despite the problems BES and ARCI observed with the roof 

ARCI installed on building one.33

The premise of U.S. Ply’s argument is that ARCI acted unreasonably by 

rejecting its offer to issue a guarantee on the roof. The language in a sample 

guarantee issued by U.S. Ply for roofs is among the exhibits admitted in the trial. Its 

terms are relevant to evaluating whether ARCI acted reasonably when it rejected 

U.S. Ply’s offer to guarantee the roof on building one. The terms of U.S. Ply’s 

guarantee reveal that the guarantee, had one been issued, would have covered only 

nine designated risks relevant to problems with roofs while excluding eleven others. 

 

33 See Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (“Appellate briefs 

are to be construed reasonably, yet liberally, so that the right to appellate review is 

not lost by waiver.”). 
28

Additionally, the terms of the guarantee extend only to the roof’s “original owner.” 

There is no testimony in the record showing that Sunningdale’s owner agreed to 

accept U.S. Ply’s offer. Thus, the guarantee, even had ARCI agreed to it, would not 

have protected ARCI from the claims that it breached its subcontract with 

Construction Supervisors by building a roof that did not fully comply with it contract 

with Construction Supervisors.

The fact the proposed guarantee would include exclusions while covering 

only certain risks further supports the trial court’s implied finding that ARCI did not 

act unreasonably when it rejected U.S. Ply’s proposal to accept the guarantee in lieu 

of filing suit. Under Texas law, a plaintiff is duty-bound to mitigate any damages it 

may suffer, but the plaintiff need not sacrifice its own contract rights in doing so.

34

We note that when the defendant claims the plaintiff failed to mitigate damages, the 

defendant bears the burden of proving that claim.35 On this record, as a reasonable 

finder of fact, the trial court could have decided that U.S. Ply failed to carry its

 34 See Tex. Gas Expl. Corp. v. Broughton Offshore Ltd. II, 790 S.W.2d 781, 

789 (Tex. App.—Houston [14th Dist.] 1990, no writ); Fid. & Deposit Co. of Md. v. 

Stool, 607 S.W.2d 17, 25 (Tex. Civ. App.—Tyler 1980, no writ); 49 DAVID R. DOW 

& CRAIG SMYSER, TEXAS PRACTICE: CONTRACT LAW § 10.6 (last updated Sept. 

2018). We note that U.S. Ply’s pleadings include a claim that ARCI failed to 

reasonably mitigate its damages.

35 See Kartsotis v. Bloch, 503 S.W.3d 506, 521 (Tex. App.—Dallas 2016, pet. 

denied).
29

burden in proving that ARCI acted unreasonably by rejecting the proposed 

guarantee.

36 We overrule U.S. Ply’s eighth issue.

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 its warranty claims?

In issue nine, U.S. Ply argues that by installing the RapidGRIP incorrectly, 

ARCI voided any warranties that might apply to installing the roof on building one.

Even when we construe U.S. Ply’s argument liberally, however, U.S. Ply’s argument 

relies on ARCI’s conduct as the basis for any waiver. U.S. Ply does not rely on any 

waiver language on the product’s label or other information that U.S. Ply provided 

ARCI in support of issue nine.

37

Under Texas law, a plaintiff’s conduct is not a defense to a breach-of-warranty 

action.

38 Instead, the plaintiff’s conduct, including any claims alleging the plaintiff 

 

36 See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (explaining 

that the “matter of law” legal-sufficiency standard applies when the factfinder’s 

adverse finding is one on which the party bore the burden of proof).

37 See Perry, 272 S.W. 3d at 587 (requiring briefs to be construed reasonably, 

but liberally); see also Tex. Bus. & Com. Code Ann. § 2.313(a)(2) (indicating that 

the manufacturer’s description of its goods creates an express warranty when the 

description forms a basis of the parties’ bargain).

38 See Signal Oil & Gas Co. v. Universal Oil Prods., 572 S.W.2d 320, 329 

(Tex. 1978) (stating that “[t]he seller should only be held liable for that portion of 

the consequential damages caused by the breach of implied warranty”); Indust-Ri-
30

installed the product incorrectly, are matters that are relevant to whether the product 

caused the plaintiff’s damages.

39 We have already explained that the evidence 

allowed the trial court to conclude that ARCI did not materially violate the 

instructions that apply to installing the RapidGRIP in resolving issues one, six, 

seven, and eight.40 For those same reasons, we reject the arguments that U.S. Ply 

uses to support issue nine. 

In this case, the record contains conflicting testimony and evidence about 

whether ARCI installed RapidGRIP correctly and whether it applied the product in 

a manner consistent with the product’s instructions and industry standards. In bench 

trials, the trial court determines the weight to give any testimony and resolves

conflicts and inconsistencies in the testimony.41 The evidence allowed the trial court 

to conclude that the RapidGRIP malfunctioned even though ARCI stored and 

installed it properly. We overrule U.S. Ply’s ninth issue. 

 

Chem Lab., Inc. v. Par-Pak Co., Inc., 602 S.W.2d 282, 290 (Tex. App.—Dallas 

1980, no writ) (extending the holding in Signal Oil to an express warranty claim).

39 See Par-Pak Co., 602 S.W.2d at 290.

40 See City of Keller, 168 S.W.3d at 814; Mar. Overseas Corp., 971 S.W.2d at 

407.

41 See McGalliard, 722 S.W.2d at 697; Woods v. Woods, 193 S.W.3d 720, 726 

(Tex. App.—Beaumont 2006, pet. denied). 
31

3. Was the testimony of Bradley Hughes, ARCI’s roofing expert,

properly admitted and does it provide reliable support for the verdict?

In issues two through five, U.S. Ply argues that Hughes’ testimony was 

inadmissible for four reasons: (1) ARCI did not name him by the stated deadlines in 

the trial court’s docket-control order; (2) he was not qualified by virtue of his training 

or experience to express opinions about RapidGRIP; (3) he was not qualified to 

express opinions about what caused the RapidGRIP to fail; and (4) his opinions were 

speculative because they did not have a sufficient foundation. We address these

arguments in order.

Before trial, the trial court held a hearing to consider U.S. Ply’s objections 

claiming that Hughes should not be allowed to testify in the case. In the hearing, 

U.S. Ply argued that the trial court should strike Hughes as a witness because ARCI 

failed to comply with the docket-control order controlling the discovery deadlines 

that applied to the case. During the hearing, ARCI argued the order required ARCI

to produce Hughes’ report no later than by mid-June 2016, and that it produced his 

report in late-January 2016, well before that docket-control order’s deadline. When 

ruling on U.S. Ply’s motion, the trial court advised the parties the court had decided 

to deny the motion.42 

 

42 The clerk’s record contains an order granting U.S. Ply’s motion to exclude 

Hughes as a witness, but the order contradicts the ruling the trial court made before 
32

The record shows the trial court allowed Hughes to testify in the trial.43 In 

late-May 2015, ARCI designated Hughes as an expert but did not produce his report. 

In late-January 2016, ARCI amended its designation of experts and produced a 

report, signed by Hughes. In an amended docket-control order, signed in late-March 

2016, the trial court signed a new docket-control order, ordering discovery to 

conclude by September 12, 2016. The amended order does not specify the date by 

which the parties were to produce reports from their experts. Instead, the amended 

order provides: “If no date or limitation on discovery is given below, the item is 

governed by the Texas Rules of Civil Procedure.” 

Given this language, we look to the rules in the Texas Rules of Civil Procedure 

to determine whether ARCI violated the docket-control order that applies to 

resolving U.S. Ply’s complaint that the trial court failed to enforce the deadlines that 

 

the trial began. U.S. Ply does not rely on the signed order in its brief. Nevertheless, 

the hearing shows the trial court intended to sign an order overruling U.S. Ply’s 

motion as the trial court stated that it would “allow the testimony of Mr. Hughes and 

overrule the objections of U.S. Ply. So I’m signing that order now.” We conclude 

the trial court signed the order granting U.S. Ply’s motion by mistake. 

43 During the hearing, U.S. Ply complained that ARCI failed to designate 

Hughes until March 2015 and that ARCI did not immediately produce his report at 

that time along with all information he relied on to form his opinions. After 

presenting the court with these complaints, U.S. Ply’s attorney advised the court that 

Hughes should be excluded because he “was not timely designated as an expert[.]”
33

apply to Hughes’ report. Under the Rules, ARCI needed to provide U.S. Ply with 

Hughes’ report at least ninety days before September 12, 2016, the date on which 

the discovery period ended.

44 Thus, ARCI was required to produce Hughes’ report 

by mid-June 2016.

45 The record shows that ARCI designated and produced Hughes’ 

report more than four months before that deadline. We conclude the trial court 

properly rejected U.S. Ply’s argument that ARCI failed to produce Hughes’ report 

by the required deadline. We overrule U.S. Ply’s second issue.

In issues three and four, U.S. Ply argues that Hughes lacked the qualifications 

needed to express reliable opinions explaining why the roofs installed at 

Sunningdale failed. In issue five, U.S. Ply contends Hughes based his opinions on 

unreliable tests performed on the leftover roll. According to U.S. Ply, the evidence 

shows that the leftover roll could not be subjected to testing capable of yielding

reliable results because it was not in the condition it was in when it was delivered to 

Sunningdale. U.S. Ply concludes that because Hughes based his opinions almost 

 44 See Tex. R. Civ. P. 195.2(a) (providing that unless the trial court orders 

otherwise, the parties must furnish the information required under Rule 194.2(f) 90 

days before the end of the discovery period); id. 194.2(f) (providing that upon 

request, the party from whom disclosure has been requested must disclose 

information about the identity and the substance of the witnesses the responding 

party retained to testify as experts).

45 Id. 
34

entirely on the tests done on the leftover roll, his opinions are without foundation,

making them speculative and unreliable.

An abuse-of-discretion standard applies to an appellate court’s review of a 

trial court’s decision admitting expert testimony.46 Courts determine whether 

evidence is reliable from all the evidence.47 Expert testimony is admissible when (1) 

the expert is qualified, and (2) the testimony is relevant and based on a reliable 

foundation.48 “‘If scientific, technical, or other specialized knowledge will assist the 

trier of fact to understand the evidence or to determine a fact in issue, a witness 

qualified as an expert by knowledge, skill, experience, training, or education may 

testify thereto in the form of an opinion or otherwise.’”49 “‘If the expert’s scientific 

evidence is not reliable, it is not evidence.’”50 If the opinion the expert expressed at 

trial “is based on assumed facts that vary materially from the actual, undisputed facts, 

 

46 Sw. Energy Prod. Co. v. Berry-Helfand, 491 S.W.3d 699, 716 (Tex. 2016); 

Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 718-19 (Tex. 1998).

47 Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997).

48 See Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 

2006). 

49 Id. (quoting Tex. R. Evid. 702); see also Daubert v. Merrell Dow Pharms., 

Inc., 509 U.S. 579, 588-89 (1993).

50 Mendez, 204 S.W.3d at 800 (quoting Havner, 953 S.W.2d at 713).
35

the opinion is without probative value and cannot support a verdict or judgment.”51

That said, courts do not determine whether an expert’s opinion is reliable by deciding 

whether the expert’s opinion appears to be correct.

52 Rather, the factors courts use 

when determining if the expert’s opinions are reliable look to the reliability of the 

method and analysis the expert used in forming the opinions the expert expressed in 

the trial.

53

The qualifications Hughes possessed as a roofing expert are primarily those 

that are in his resume. Hughes’ resume shows that he is licensed in the State of 

California as a general contractor and as a roofing contractor. He has more than thirty

years of experience in the construction industry, and his experience includes 

supervising the construction of composite shingle, built-up, and other types of roofs

that are installed on apartments, condominiums, and commercial buildings. Hughes’ 

testimony shows that he also has experience with installing modified-bitumen roofs. 

Hughes also described his experience in the roofing industry when he testified. 

During the trial, Hughes testified that for the past eighteen years he has worked for 

 

51 Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995); see

also Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 591 (Tex. 1999).

52 See Tamez, 206 S.W.3d at 581.

53 Id. 
36

Bert Howe & Associates. According to Hughes, his day-to-day work for Bert Howe 

involves inspecting roofs, writing reports about his findings, analyzing the

performance of roofs, and writing specifications for repairs, when required. Hughes

testified that in the past eighteen years, he has inspected over 20,000 roofs. Hughes 

explained that before working for Bert Howe, he worked more than twenty years 

“within the roofing industry as a tradesman installing, repairing, [and] rehabilitating 

roofing systems . . . , which are inherent to modified bitumen applications such as 

[the] case [before the court.]” He explained that his experience installing roofs 

includes installing the type of modified-bitumen systems used at Sunningdale. He 

has also inspected modified-bitumen roofs in his work with Bert Howe, including 

taking samples from the existing roof and having those samples tested. Although 

Hughes represented that he had a great deal of experience with roofs, he also agreed 

that he was not a scientist, a chemist, or certified to conduct tests on roofing material,

which is work done by labs. 

Hughes’ testimony reveals that he reviewed twelve categories of material 

while investigating the failure of the RapidGRIP used at Sunningdale. He did not 

inspect the roofs because they were repaired before he was hired. The information 

he reviewed included the instructions issued by U.S. Ply about RapidGRIP and how 

it is installed. He also reviewed testing and materials standards referenced on 
37

RapidGRIP’s label, industry standards for installing low-sloped-asphalt roofs,

construction records associated with ARCI’s work, weather records for the days

ARCI installed the RapidGRIP, construction and inspection photographs taken of 

the roofs, and reports issued by BES about its observations and findings on the roofs.

Hughes agreed that he relied heavily on U.S. Ply’s and Mid-States Asphalt’s testing 

of the leftover roll when reaching the opinions he expressed at trial.

54 He also agreed 

he has no experience in designing asphalt-roofing products, that he did not have an 

independent lab perform tests on any samples taken from Sunningdale’s roofs, and 

that he is not a chemist. Hughes stated that he is qualified to express opinions about 

the performance of self-adhering membranes that contractors install on roofs from 

the perspective of a roofing consultant, inspector, and contractor. 

As we understand Hughes’ testimony, Hughes thought that the RapidGRIP 

ARCI used on the project failed to perform as a high tack, self-adhering membrane 

that could be applied without using supplemental heat. He also expressed the opinion 

that any errors ARCI made when installing the roofs did not contribute to causing 

the RapidGRIP ARCI installed to fail. 

 

54 Hughes stated that he understood the leftover roll had been stored properly 

before U.S. Ply and Mid-States Asphalt tested it. He also agreed that he had no 

personal knowledge about how the roll was stored to protect it from the elements 

before anyone tested it. Hughes acknowledged that the adhesive qualities of the roll 

could degrade if the roll was not stored properly. 
38

U.S Ply contends the trial court should not have found that Hughes was

qualified to testify as an expert. It argues that ARCI failed to show that Hughes had 

experience or expertise in manufacturing, designing, or marketing RapidGRIP. That 

said, ARCI sought to prove that the RapidGRIP malfunctioned because the 

RapidGRIP it purchased did not have the qualities represented on the label even 

when applied in a manner consistent with industry practices and the instructions on 

the product’s label. Hughes did not testify the formula U.S. Ply used for RapidGRIP 

was incapable of producing a membrane consistent with the qualities stated on the 

label. Essentially, Hughes’ testimony shows that he thought the problem with the 

RapidGRIP ARCI acquired occurred before they were delivered to Sunningdale 

because ARCI stored the rolls properly, installed the rolls properly, and that 

nonetheless, the RapidGRIP failed on both roofs. 

As to the trial court’s decision to allow Hughes to testify as a roofing expert, 

the record shows that Hughes has much more expertise evaluating roofs, including 

the type of roofs at issue here, than an ordinary factfinder. He has also evaluated 

many problems with roofs, and in his job, companies rely on him to determine why 

roofs fail and how they should be fixed. Under the Texas Rules of Evidence, 

opinions offered by witnesses who have “technical[] or other specialized 

knowledge” are admissible if the opinion assists the factfinder in deciding the issues 
39

in dispute.55 Had ARCI claimed the formula U.S. Ply used to create RapidGRIP 

would not produce a high-tack, self-adhering membrane, a scientist or 

manufacturing witness familiar with the manufacture of roofing membranes might 

have been an important witness for that trial. That was not, however, the theory 

ARCI advanced in this trial. Instead, ARCI sought to prove the RapidGRIP that it 

purchased malfunctioned in ways that were not consistent with the qualities stated 

on the product’s label. 

Given Hughes’ experience in the roofing industry, we conclude the trial court 

could reasonably have found him qualified to express opinions about whether the 

product malfunctioned.56 While Hughes had no formal training in manufacturing or 

designing roof membranes, experts need not always be formally trained to possess 

information that is helpful to triers of fact. For instance, in discussing qualifications

of experts, the Texas Supreme Court explained that an “experienced car mechanic’s 

diagnosis of problems with a car’s performance may well be relevant and reliable 

without resort to engineering principles.”57

 55 Tex. R. Evid. 702.

56 See Gammill, 972 S.W.2d at 722 (noting that “there are many instances 

when the relevance and reliability of an expert witness’s testimony are shown by the 

witness’s skill and experience”).

57 Id. 
40

The trial court’s conclusion that Hughes followed a proper methodology to 

arrive at his opinions is also reasonable and supported by the record. Hughes’

testimony reveals he is familiar with industry practices for installing modifiedbitumen roofs. His testimony shows that he is familiar with the manner and 

conditions under which products like RapidGRIP are used. His testimony shows that 

he considered whether the product was stored or installed improperly and that he 

considered the test results on the leftover roll. His conclusion that the RapidGRIP 

malfunctioned as a self-adhering membrane at the temperatures it which it was 

installed represents a reasoned opinion reached after considering the available 

evidence. We conclude that Hughes was qualified to express the opinions he 

expressed that U.S. Ply has challenged in the appeal. We overrule issue three.

In issues four and five, U.S. Ply criticizes the methodology Hughes followed 

in arriving at his opinions. According to U.S. Ply, Hughes ignored uncontroverted 

testimony showing that the leftover roll was not in the same condition it was in when 

it was delivered to Sunningdale. Also, U.S. Ply suggests that the methodology

Hughes should have followed required him to submit samples of the RapidGRIP to 

an independent lab. According to U.S. Ply, testing by an independent lab is normally 

performed to determine what caused a roof to fail. U.S. Ply concludes that errors in 

Hughes’ methodology makes his opinions speculative and unreliable. 
41

The Texas Rules of Evidence allow experts to base opinions “on facts or data 

in the case that the expert has been made aware of, reviewed, or personally 

observed.”58 The testimony about how the leftover roll was stored before U.S. Ply 

and Mid-States Asphalt tested it waslargely circumstantial. There is, however, direct

testimony showing that Marshall acquired the leftover roll from ARCI employees 

who took it from one of the roofs at Sunningdale. When the partial roll arrived at 

ARCI’s offices, it was not in a box. There is, however, testimony showing that U.S. 

Ply sent the leftover roll to Mid-States Asphalt in a box. Other than this testimony, 

the evidence is circumstantial about whether ARCI stored the leftover roll properly 

before ARCI’s employees gave it to Marshall. That said, the testimony does not 

show the leftover roll was ever exposed to extreme cold or heat or that the leftover 

roll was exposed to weather, including sunlight, for more than 90 days before the 

leftover roll was tested. 

There is also no testimony showing that Mid-States Asphalt considered its 

tests unreliable, that Mid-States Asphalt considered its testing insufficient without 

further testing by an independent lab, or that the leftover roll could not be tested to 

determine whether the RapidGRIP ARCI purchased could be applied without using 

a torch. The fact that Mid-States Asphalt offered to replace the product after 

 

58 Tex. R. Evid. 703.
42

completing its tests is circumstantial evidence supporting the trial court’s inference 

that Mid-States Asphalt concluded the roll did not have the qualities of tackiness 

stated on the product’s label. Based on the direct and circumstantial evidence, and 

because the product’s label states that the product should not be “left exposed for 

more than 90 days[,]” the trial court could have reasonably rejected U.S. Ply’s 

arguments that U.S. Ply’s and Mid-States Asphalt’s tests were not reliable or 

relevant to proving what condition the rolls were in when ARCI acquired them.

Next, we turn to U.S. Ply’s claim that Hughes’ opinions were unreliable 

because he failed to have samples of the RapidGRIP tested by an independent lab. 

There is no testimony in the record showing what constitutes a normal investigation 

when evaluating what caused a modified-bitumen roof (or any other type of roof) to 

fail. There is also nothing in the record showing that the proper methodology for 

determining the cause of a roof’s failure requires testing beyond the testing done by 

the entities that manufactured and sold the roofing products used in building the roof.

Mid-States Asphalt and U.S. Ply both relied on their testing to extend remedies for 

the RapidGRIP’s failure without submitting the leftover roll or other samples of the 

RapidGRIP for further testing by an independent lab. Moreover, before extending 

their respective offers, neither U.S. Ply, nor Mid-States Asphalt, suggested that more 

testing was needed by an independent lab. 
43

Finally, the opinions Hughes expressed are supported by testimony that is in 

the record explaining how ARCI built the roofs. ARCI has a long track record of 

successfully building modified-bitumen roofs using membranes like RapidGRIP.

The tests on the leftover roll were done before the useful life for the product, as 

shown on the product’s label, expired. This factor also tends to support the trial 

court’s implied findings. While the record contains conflicting evidence about how 

ARCI stored and installed the roofing materials before it used them, Hughes was 

entitled to assume that ARCI stored and installed the RapidGRIP properly when 

forming his opinions given the evidence presented in the trial. We conclude the trial 

court did not rely entirely on Hughes’ credentials when it found Hughes gave 

credible and reliable testimony in the trial. 

To summarize our conclusions, Hughes’ opinions were not speculative, 

conclusory, or without a sufficient foundation to tie his opinions to the relevant facts 

of the case. We hold the trial court did not err by exercising its discretion to allow 

Hughes to testify or by finding that he gave credible and reliable opinions during the 

trial. We overrule issues four and five.

4. Did ARCI preserve its right to obtain the trial

court’s written findings to explain its verdict?

In issue ten, U.S. Ply asserts that given U.S. Ply’s request for findings, the 

trial court erred by failing to provide the parties with written findings of fact and 
44

conclusions of law. The record shows that U.S. Ply filed its request for findings 

within twenty days of the date the trial court signed the judgment. We conclude that 

U.S. Ply’s initial request for findings was timely.59 Even so, U.S. Ply then failed to 

file a notice of past due findings. A notice of past due findings is required when a 

trial court has failed to comply with a party’s initial request for written findings.

60 If 

a party fails to file a notice of past due findings, it can no longer complain of the trial 

court’s failure to provide the parties with written findings.

61 We conclude that U.S. 

Ply waived its right to complain about the trial court’s failure to reduce its findings 

to writing. We overrule U.S. Ply’s tenth issue. 

Conclusion

Having carefully considered each of U.S. Ply’s issues, we affirm the trial 

court’s judgment.

AFFIRMED. 

 

59 See Tex. R. Civ. P. 296, 297. 

60 See id. 297.

61 See Ad Villarai, LLC, 519 S.W.3d at 137 (Tex. 2017); Las Vegas Pecan & 

Cattle Co. v. Zavala Cty., 682 S.W.2d 254, 255-56 (Tex. 1984). 
45

_________________________

 HOLLIS HORTON

 Justice

Submitted on December 19, 2018

Opinion Delivered April 25, 2019

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