NO. 07-04-0401-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TE XAS

AT AMARILLO PANEL D MARCH 30, 2005

______________________________ WAYNE HALBERT, APPELLANT

V. KIDD JONES OIL COMPANY AND TEXAS TRANSEASTERN, INC., APPELLEES

_________________________________ FROM THE 392 ND DISTRICT COURT OF HENDERSON COUN TY; NO. 00B-3 16; HONOR ABLE CA RTER TA RRANCE , JUDGE

_______________________________ Before QUINN and REAVIS and CAMPBELL , JJ.
MEMORAND UM OPINION Following a non-jur

y trial, a ppellan t Wayne H albert challenges a judgment that he take nothing on his Deceptive Trade Practices Act claim against Ki dd Jones Oil Company and Texa s Transeastern, Inc. By two issues, he questions 1) whether he proved and established bya preponderance of the evidence that the contaminated fuel incident or any1 There is a di spute in the record as to the length of time the truck was driven

followi ng the in itial re pairs un til the e ngine ce ased to fu nction p roperly asecond t ime. 2 other conduct, act, or omission of Kidd Jones or Transeastern was the producing cause of additional damages or loss, and 2) whether the trial court committed harmful err or by denying his requ est for ad ditional finding s of fact a nd concl usions of law. Weaffirm.
On May 2 7, 2000, Hal bert purchased fuel at a Kidd Jones station for his 1993 Chevroletdiesel truck. That morning, prior to Halbert’s purchase, Transeastern mistakenly delivered gasoline i nto Kidd Jones’s diesel tank, thereby contaminating their diesel fuel supply. Shortly after fueling, the engin e in Hal bert’s tru ck began experie ncing pr oblems and refused to start. Halbert had his truck towed to Ellio tt Chevrolet for repairs. At that time, accordin g to the r epair ord er, the tru ck’s odom eter indicated 198,849 miles. The repa irs were completed on May 30, 2000, and the $520 .49 repair bill was paid by Kid d Jones. Following the repairs, Halbert drove the truck for some time before he encountered additional problems

with the engine. 1 On March 7, 2002, the engine was inspected by Kidd Jones’s expert w ho record ed the tru ck’s odo meter at 2 11,070. Halbert, a self- empl oyed dies el mechani c, then pe rformed su bstantia l repairs on the e ngine on June 6, 2 002, at a cost of $6,691.66, and again on June 23, 2002, at a cost of $5,583.48.
Halbert sought to recover his damages under section 17.50 of the Deceptive Trade Practices-Consumer

Protection Act. By his petition, he alleged violations of the Act and soughtto recover damages, which were not specifically identified or described, that would3

exceed $50,000. Following a non-jur y trial , the trial court signed a judgment by which it found, among other things, that the contaminat ed fu el was the producing cause of damages to Halbert’s truck and all damages were remedied and repaired on May 30, 2000. B ecause Ki dd Jonesfully pa id all costs and expense s for the r epairs, t he court rendered judgment that Halbert recover nothing from Kidd Jones. On May 5, 2004, at Halbert’s request, the trial court made eighteen findings of fact and five conclusions of law. As is material here, the trial court found that Halbert suffered no damag es or los s due to the con taminated f uel subsequent to the repairs made on May 30, 2000 . On June 8, 2004, Halbert requested that the trial court make additional f indings of fact and conclusions of law. Kidd Jones and Transeastern objected to the request alleging it was untimelyunder Ru le 298 of the Texas Rules of Civil Procedu re. T he trial co urt subsequently denied Halbert’s request for additional findings or conclusions.

Request for Additional Findings and Co nclusions Addressing the issues in logical order, wefirst review Halbert’s second issue. By this issue, Halbert contends the trial court erred by deny ing his request for additional findings of factand conclusions of law. We disag ree. At H albert’srequest, the trial court filed its init ial find ings and conclus ions on May 5, 200 4. Halbert filed his request for additional f in dings on June 8, 2004. However, Rule 298 requires that a request for additional or

amended findings or conclusions be filed within ten days after the filing of the
or igina l request. Because Halbert’s request was untimely, appel lant’s second issue is4

overruled. See Richardson v. Milner, 345 S.W.2d 449, 450 (Tex.Civ.App.–A marillo 1961, writ ref’ d n.r.e.). Sufficiency of the Evidence
We now consider Halbert’s first is sue by wh ich he challenges the trial court’s findings pertaini ng to additional damages. Halbert contends the trial court’s finding s were in error and that a preponderance of the e vi dence shows that the contaminated fuel purchas ed from Kidd Jones ca used him to sustai n damage s and lo sses in a ddition to those for which hewas comp ensated. We disag ree.
In reaching this conclusion, we must first consider theappropria te standard of review. Findings of

fact in a bench trial have the same force as a jur y’s verdi ct upon ju ry questions. City of Clute v. City of L ake Jacks on, 559 S .W. 2d 391, 395(Tex.Ci v.App.-- Houston [14th Dist.] 1977, writ ref’d n.r.e.). However, findings of fact are not conclusi ve when a comple te stateme nt of facts appearsin the record, if the contrary is established as
a matter of law, or if

there is no evidence to support the findings. Mid dleton v. Kawasaki Steel Corp., 687 S.W.2d 42 , 44 (Tex .App.--Ho uston [14 th Dist.] 1985), writ ref’d n.r.e. , 699 S.W.2d 199 (Tex. 1985) (per curiam). When the trial court acts primarily asa fact fi nder, the finding s of fact a re reviewable for factual a nd legal sufficie ncy unde r the same standards that are applied in reviewing eviden ce s upporting a jury’s answer. Zieben v. Platt, 786 S.W.2d 797, 799 (Tex.App.--Hou ston [14 th Dist.] 1990, nowrit). See alsoW. Wendell Hall, Standards of Review in Texas , 34 S T
. M ARY ’ S L.J. 1, 18 3 (2002).5

When an appellant challengesboth the legal and factual sufficiency of the evidence, the appellate court should first review the legal sufficiencychallenge. Glover v. Texas Gen. I ndem. Co. , 619 S.W. 2d 400, 4 01 (Tex. 1981); K och Oil C o. v. Wilb er, 895 S .W.2 d 854, 862 (Tex .App.--Be aumont 19 95, writ d enied). An appel lant att acking the legal sufficiencyof an adverse finding on which hehad the burden of proof must show on appeal that a contrary finding was established as a matter of law. Croucher v. Crouch er, 66 0 S.W.2d 55, 58 (T ex. 1983 ). The appellate court reviews the entire record for any eviden ce that su pports the adverse finding, while disregarding all evidence and inferences t o th e contrary. Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S. W.2d 264, 276 (Tex.App.–Amarillo 1988, writ denied). If there is no evidence to support the finding, the reviewing court mustreview t he entirerecord to determin e if the contrary proposition was established as a matter oflaw. McGallia rd v. Kuhlma nn, 722 S.W. 2d 694, 696-9 7 (Tex. 1986).
An appellant challenging the factual sufficiency of an adverse finding where he had the burden of proof must show on appeal that the finding was agai nstthe great weight and preponderance of the evidence. Gooch v. Am. Sling Co., 902 S.W.2d 181, 184 (Tex.App .–Fort

Worth 1995, no writ). If there is som e p robative evidence to support the finding, the finding must be uphe ld. ACS Investors, Inc. v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997). The court should only set asi de an adverse finding if, in light of al l the evidence, the evidence which supports the finding is so weak as to be clearly wrong and manifestl y unjust. Cain v. Bain, 70 9 S.W.2d 1 75, 176 ( Tex. 198 6).6

In addition, although findings of fact are reviewabl e for legal and factual sufficiency,
a n attack on the suffi ciency of the evi dence mus t be dire cted at sp ecific fi ndings of fac t rather than at the judgment

as a whole. In re M.W., 959 S.W.2d 661, 664 (Tex .App.--Tyler 1997, no writ). The rule has often been otherwise stated that if the trial court’s findings of factare not cha llenged by a point of error on appeal, they are b inding u pon the a ppellate court. Northwest Park Homeowners Ass’n, Inc., v. Brundr ett, 970 S.W.2d 700, 704 (Tex.App.--Amarillo 1998, pet. denied); Carter v. Carter, 736 S.W.2d 775, 777 (Tex.Ap p.-- Houston [14th Dist.] 1987, no writ). However, a challenge to an uniden tified finding of fact may be sufficient for review if it is included in the argument of the issue or point, or if after giving consideration to the nature of the case, the underlying applicable legal theories, and the findin gs of fac t provided, the specific finding(s) of fact which the appel lant challenges
can be fairl y determi ned from t he argume nt. See Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982) (c iting Calvert, “No Evidence” and “Insufficient Evidence” Po ints of Error, 38 Tex. L. Rev. 361 (1 960)).
In his brief, Halbert makes a general chal lenge to the sufficiency of the evidence perta ining to the trial court’s failure to find additional d amages. Halbert also does no t designa te whether

he is challenging the factual or leg al sufficiency of the evidence or both. The Texas Supreme Court has taken a liberal approach and somewhat relaxed t h e standards for wording points of contention on appeal in an effort “to obtain a just, fair and equitable adjudication of the rights of the litigants.” Pool v. Ford Motor Co., 715 S.W.2d 629, 633 (Tex .1986), overruled on other grounds by Crown Life Ins. Co. v. Casteel, 22 S.W.3d7

378 (Tex. 2000). Even so, this Court in Northwest found such a lack

of specificity to be fatal to the issues on appeal. See Northwest , 970 S.W.2d at 704. Although we do not find it
necessar

yto rule on this issue in the present cas e, we do fin d it difficult to determine the specificfindings of fact

which Halbert contends were not supported by the evidence at trial.

Moreover, regardless of the findings alluded to in the briefs, we find that the evidence before the trial court wa s suffici ent to sup port i ts conclusi on that Kidd Jones was not responsible for any damage or loss subsequent to the i nitial repairs. We are equally convinced that the trial court’s findings were not against the great we ight and preponderance of the evidence. Danny Hudson, theservice manager at Elliott Chevrolet, testified that on May 30, 2000, Elliott made the necessa ry repair s to remedy the damage done to Halbert’s truc kas a result of the contaminated fuel and that the repai rs were billed to Kidd Jones

. Elliott’s repair invoice reflected that the odometer on Halbert’s vehi cle read 198,849 miles. Halbert then drove the vehi cle f or some time before he began experiencing ad ditional problemswith the engine. After the lawsuit was fil ed, the engine was inspe cted b y the defendant’s expert, Phillip Smith. Smith concluded that Halbert’s problems with theengine “were not rela ted to thefuel iss ue.” Smith’s report also listed the mileage on Halbert’s vehicle to be 211,070, thereby indicating that the vehicle was driven 12,221 miles after the initial repairs. This evidence leads us to the conclusion that any number of factors, whether itbe ordinary wear and tear, or otherwise, could have le d to the e ventua l demise of the eng ine. At trial, Halbert stated his belief that if Ell iott Chevrolet had replaced the fue l8

injector, the situ ation wo uld havebeen res olved. H owever, instead of questi oning th e nature and quality of the repairs, he chose to continue to d rive the vehicle anothe r 12,22 1 miles until the engine eventually failed and no w seeks to recover his losses from Kidd Jones. These facts, in addition to the lack of substantive evidence at trial on Halbe rt’s beha lf, are
more than sufficient to support the trial court’s findings under the appropriate standards of review. Issue one is overruled. Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis Justice