In The 

Court of Appeals 

Seventh District of Texas at Amarillo

________________________

No. 07-17-00269-CV 

________________________

BARBARA BAXTER, APPELLANT 

 

V. 

 

RON COLLINS D/B/A BRAZOS VALLEY POOLS & HOT TUBS 

AND MARC MORONO D/B/A/ AAM COMPANY, APPELLEES 

 

 

On Appeal from the County Court at Law Number 1 

Brazos County, Texas 

Trial Court No. 12-001400-CV-CCLI; Honorable Amanda Matzke, Presiding 

 

April 11, 2019 

 

MEMORANDUM OPINION 

 

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

Appellant, Barbara Baxter, appeals from a take-nothing judgment following a 

bench trial in favor of Appellees, Ron Collins d/b/a Brazos Valley Pools & Hot Tubs

(Collins/Brazos) and Marc Morono d/b/a AAM Company (Morono/AAM) in her contract 
2

and tort action involving the construction of a swimming pool.

1

 On appeal, Baxter asserts 

the trial court abused its discretion (1) by not finding Collins personally liable on the 

swimming pool contract due to his failure to disclose the true identity of his principal, (2) 

by not finding Collins/Brazos liable on any of Baxter’s claims for common law tort, (3) 

breach of contract, (4) fraud, (5) negligent misrepresentation, and (6) violation of the 

Deceptive Trade Practices Act,

2 and (7) by applying the economic loss rule to Baxter’s 

fraud claims. She also contends the evidence is (8) legally and (9) factually insufficient 

to support the trial court’s Finding of Fact Number 9,3(10) legally and (11) factually 

insufficient to support the trial court’s Finding of Fact Number 18,4(12) legally and (13) 

factually insufficient to support the trial court’s Finding of Fact Number 20,5 and that the 

trial court abused its discretion by (14) not finding Collins liable on Baxter’s breach of an 

implied warranty of good and workmanlike construction claim and (15) by not finding 

Morono/AAM liable on Baxter’s negligence claim. 

 

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

Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West 

2013). Should a conflict exist between the precedent of the Tenth Court of Appeals and this court on any 

relevant issue, this appeal will be decided in accordance with the precedent of the transferor court. TEX. R.

APP. P. 41.3. 

2 See Deceptive Trade Practices—Consumer Protection Act, TEX. BUS. & COM. CODE ANN. §§ 

17.41-924 (West 2011 & Supp. 2018). 

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

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

4 Finding of Fact Number 18 states “[t]here was no evidence offered at trial that the pool that was 

sold by Brazos Valley Pools & Hot Tubs to Baxter failed in any way as a product or through an installation 

defect” and “no evidence produced at trial that the pool liner was defective and failed in any way, that the 

steel supports or any of the pool equipment failed, or that the construction in excavating the ground for the 

pool was the cause of the soil collapse.” 

5 Finding of Fact Number 20 states that Baxter failed to produce any evidence at trial “of the actual 

and proximate cause of the soil collapse around her pool.” 
3

Distilled to its essence, the two central issues in this appeal are whether Baxter 

produced sufficient evidence at trial to establish (1) Collins’s personal liability for a breach 

of Baxter’s swimming pool construction contract with Brazos and (2) if so, that Collins and 

Morono/AAM breached that contract causing her to suffer damages. We find that there 

was no evidence at trial to establish that Collins was individually liable for Baxter’s claims 

and Baxter failed to produce any evidence establishing a causal link between the pool’s 

installation and the subsequent events from which she alleges injury. We affirm the trial 

court’s judgment. 

BACKGROUND

In September 2009, Sakara Ibis Corporation purchased Barry Pool Company. 

Barry Pool Company was registered as the assumed name under which Sakara 

conducted professional services. Collins was Sakara’s president. In addition, a Texas 

Sales and Use Permit was issued to Sakara under the assumed business name of Brazos 

Valley Pools & Hot Tubs. Sakara also registered a Certificate of Assumed Business 

Name under Barry Pool Company. From 2009 through 2015, Sakara filed its federal 

income tax returns naming itself and underneath Brazos Valley Pools & Hot Tubs. In 

January 2010, the name of Barry Pool Company was changed to Brazos Valley Pools & 

Hot Tubs. 

On or about May 11, 2010, Baxter purchased a pool from Sakara doing business 

under the assumed name of Brazos Valley Pools & Hot Tubs. Collins was the 

salesperson who sold her the pool and the invoice representing their agreement issued 
4

under the name of Brazos Valley Pools & Hot Tubs. At the time, two outdoor signs also 

indicated that the business establishment was named Brazos Valley Pools & Hot Tubs.

Brazos Valley Pools & Hot Tubs hired Marc Morono, possibly doing business under 

the names of The Morono Brothers Corp., AAM Company, or AAMCo Pool Company,6to 

perform the excavation and pool installation. From May 28 to June 17, the pool was 

constructed pursuant to a pool permit issued to Brazos Valley Pools as the contractor and 

the fee was paid in cash by Brazos Valley Pools. Brazos Valley Pools also agreed to 

perform Baxter’s post-installation requests based upon an agreement signed by Baxter 

wherein she agreed to pay $6,592.31 to Brazos Valley Pools. The receipt for final 

payment by Baxter was issued by Brazos Valley Pools.

In June 2010, Baxter hired another contractor (not affiliated with Brazos Valley 

Pools & Hot Tubs or Morono) to install a concrete sidewalk and deck area around her 

pool. Baxter had no engineered plans for the deck and no piers or support for the deck. 

Brazos Valley Pools & Hot Tubs was not involved in any manner with the design, 

construction, or installation of the concrete deck surrounding the pool.7

On or about July 2010, after the concrete deck had been installed for several 

weeks, the soil surrounding the pool on both sides collapsed, causing damage to the pool. 

 

6 Baxter’s original petition named Marc Moronof, d/b/a AAM Company, as a defendant. Marc 

Morono later filed a pro se original answer. Collins later designated Marc Morono, d/b/a/ The Morono

Brothers Corp. d/b/a AAM Company a/k/a AAMCo Pool Company as a third party. Because Moronof 

appears to be a misnomer, like the trial court, we address the party as Morono.

7 Baxter did not file suit against the contractor who installed the concrete deck around her pool. 
5

Baxter did not hire anyone to determine the cause of the collapse, but she did engage a 

different contractor, Ameri-Tech Pools, to install a new pool. 

Baxter subsequently filed her original petition in May 2012, and her first amended 

petition in August 2016. In her amended petition, Baxter alleged claims for breach of

contract, common law fraud, fraud under the DTPA, negligence, negligent 

misrepresentation, and breach of an implied warranty of good and workmanlike 

construction. In his original answer, Collins denied that he was doing business under the 

trade name or assumed name of Brazos Valley Pools & Hot Tubs when he sold the pool 

to Baxter. In his Request for Disclosure to Plaintiff Pursuant to Texas Rule of Civil 

Procedure 194, filed in October 2014, Collins also informed Baxter that he believed 

Sakara was a proper party to the suit because her pleadings indicated Baxter entered 

into a contract with Brazos Valley Pools & Hot Tubs and it was that entity who allegedly 

breached the contract and caused her injury. In his first amended answer, Collins 

reiterated that he was not liable under a written contract agreed to by Brazos Valley Pools 

& Hot Tubs and was not liable in the capacity in which he had been sued—i.e., 

individually. 8

 

8 Baxter did not amend her petition to add Sakara as a defendant or allege any legal theory to 

pierce the corporate veil of either Sakara or Brazos Valley Pools & Hot Tubs. Neither did she amend her 

petition to allege any claim against Brazos Valley Pools & Hot Tubs, either in its corporate name or common 

name, or add it as a defendant. The various theories for piercing the corporate veil must be specifically 

pled or they are waived, unless they are tried by consent. Endsley Elec., Inc. v. Altech, Inc., 378 S.W.3d 

15, 22 (Tex. App.—Texarkana 2012, no pet.) (citing Mapco, Inc. v. Carter, 817 S.W.2d 686, 688 (Tex. 

1991)). No party asserts that any of the various theories of piercing the corporate veil was tried by consent. 
6

In August 2016, a bench trial was held. At trial, neither Baxter nor Collins could 

testify as to why the soil collapsed, damaging the pool. Collins testified he was never 

allowed to perform an investigation into the collapse. 

Baxter’s expert at trial was Peter Gonzales of Ameri-Tech Pools. He admitted he

was not a certified installer for the brand of pool (Doughboy Pools) sold by Brazos Valley 

Pools & Hot Tubs. He did, however, testify that he had seen a video of the Doughboy 

pool purchased by Baxter and that he had seen one in person, although he had never 

installed a pool manufactured by Doughboy. 

Gonzales testified at trial as follows:

GONZALES: When you install an inground vinyl pool, it has to have a 

footing back behind the bottom of the wall.

QUESTION: Okay. And when you were digging out the pool, did you see 

any cement?

GONZALES: No, sir. 

QUESTION: Okay. Um, what happens if it’s just plain dirt or mud around 

the walls?

GONZALES: The first rain, it will cave. 

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

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

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

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

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

trial court found “that Ron Collins, individually, was not doing business under an assumed 
7

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

Findings of Fact and Conclusions of Law submitted by Collins. 

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

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

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

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

sufficient to establish causation. 

ISSUES ONE THROUGH SEVEN

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

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

violation of the DTPA. We disagree.

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

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

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

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

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

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

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

STANDARD OF REVIEW

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

reviewing court must first examine legal sufficiency. See Glover v. Tex. Gen. Indemnity 
8

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

to be given their testimony. City of Keller, 168 S.W.3d at 819.
9

ANALYSIS

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

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

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

Any . . . individual doing business under an assumed name may sue or be 

sued in its . . . assumed or common name for the purpose of enforcing for 

or against it a substantive right, but on a motion by any party or on the 

court’s own motion the true name may be substituted.

TEX. R. CIV. P. 28.

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

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

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

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

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

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

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

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

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

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

 

9 Baxter did not file suit against Brazos Valley Pools & Hot Tubs as an individual entity. Neither 

was there any evidence Collins supported the pool’s construction with personal funds, commingled personal 

and company funds, manipulated or transferred Brazos Valley Pools & Hot Tubs assets or liabilities, made 

loans to or from the company, prioritized himself as a creditor, or otherwise abused the entity’s corporate 

form. See Endsley Elec., Inc., 378 S.W.3d at 25. 
10

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

at 52.

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

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

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

payment were all issued in the name of Brazos Valley Pools or Brazos Valley Pools & Hot 
11

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

doing business as Brazos Valley Pools & Hot Tubs. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

shareholder of Sakara Ibis Corporation which does business under the assumed name of Brazos Valley 

Pools & Hot Tubs. Collins is also its president and an employee of the corporation.” 
12

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

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

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

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

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

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

are overruled and issue seven is pretermitted.11 

ISSUES EIGHT THROUGH FIFTEEN

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

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

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

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

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

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

disagree. 

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

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

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

of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798-99 (Tex. 2003). The test for causein-fact is whether the act or omission was a substantial factor in bringing about the injury 

 

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

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

Baxter’s fraud claims. 
13

without which the harm would not have occurred. Doe, 907 S.W.2d at 477. Cause-infact is not shown if the defendant’s act did no more than furnish a condition which made 

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

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

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

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

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

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

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

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

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

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

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

services).

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

GONZALES: When you install an inground vinyl pool, it has to have a 

footing back behind the bottom of the wall.

QUESTION: Okay. And when you were digging out the pool, did you see 

any cement?

GONZALES: No, sir. 

QUESTION: Okay. Um, what happens if it’s just plain dirt or mud around 

the walls?

GONZALES: The first rain, it will cave. 
14

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

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

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

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

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

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

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

proven; i.e., res ipsa loquitor.

12

 That is, she posits that a new pool should not collapse 

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

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

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

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

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

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

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

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

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

68 (Tex. 1989). 

 

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

571, 573 (Tex. 1982). 
15

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

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

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

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

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

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

eight through fifteen are overruled. 

CONCLUSION

The trial court’s judgment is affirmed. 

Patrick A. Pirtle

 Justice