## In the Court of Appeals Second Appellate District of Texas at Fort Worth

____________ ______ _________ No. 02

- 19

- 00153

- CV

___________________________

On Appeal from County Court at Law No. 2 Denton County, Texas Trial Court No. CV

- 2015

- 01451
Before Birdwell, Bassel, and Wallach, JJ. Memor andum Opinion by Justice Wallach 

### C HARTER 

### C OMMUNICATIONS 

### , I NC



### . , Appellant

V


### . D AN 

### A LAN 

### L EWIS 

### , Appellee2 MEMORANDUM OPINION Appellee Dan Alan L ewis sued Appellant Chart er Communications , Inc. for damages he sust ained when his house flooded during the installation of a n internet
cable on his property

. Based on the jury ’ s verd ict, the trial court awarded Lewis damages on his claim for breach of an implied warranty of work m anlike performance,
and Charter now a ppeals. Because the evidence was not legally suf ficient to establish
that Charter ’ s breach of the implied warranty was a cause of Lewis ’ s damages, we
reverse the trial court ’ s judgment and render judgment that Lewis t a ke nothin g on his
claims. Backgroun d
Lewis sued Charte r 1 for breach of contract , breach of the implied warranty of good and w orkmanlike performance , and viola tion of the Texas Deceptive Trade Practices Act, as w ell as several other claims that were dismis s ed on summary judgment

. Lewis alleged t hat the flooding in his home resulted from the use of a

water spigot on the side of his home by a n em ployee of Charter ’ s subcontracto r while
that employee was burying an internet cable

. Lewis had p r ev iously re mov ed the spigot ’ s handle to pre vent unauthorized use of his water

. N evertheless , the
sub contractor ’ s employees mana ged to use the water spigot

. Lewis sought to r ecover

1 Chart er is the successor in interest to Time Warner Cable (TWC) , which Cha rter purchased in 2016. Lewis pur chas ed in ternet services from TWC , and TWC insta lled the cable and retained a subcontractor to bury it . For simplicity, we refer to both Cha rter and TWC as Cha rter.3 the costs to repair the da m age to his h ome and lost income ; a symphony pi anist and cellist, Lewis also taug ht music out of his home but found it difficult to do so during the rep air process

. L ewis testified that a Cha r ter employee install ed the inte rnet cable on his
property on July 8, 2013, but told him another c rew would come by in a few days to bury it

. According to Lewis, o n July 10, 2013, he walked into his kitchen and found it
and his utility room “ under about an inch of water , ” and water then migrated to other parts of the house

. Lewis stated that i n following the flo w of water to his gar age , he
found the subcontractor ’ s vehicle in his dr iv eway , alerting him for the first time to the

crew ’ s presence
. The jury f ound that Charter had breac hed a n im p lied warr anty of workmanlike
per formance , w hich was a producing cause of Lewis ’ s damages , and it awarded him $15,0 0 0 f or repair costs, $25,000 for lost income, and attorney ’ s fees. T he jury further
found that Charter did not fail to c om p ly with its a gr eement with Lewis and did n ot engage in any unconscionable action or course of action that c aused Lewis ’s damages

. The trial court signed a f inal ju dgment in accordance w ith the jury ’ s verdict.
Discussion
In Charter ’ s fir st issue, i t argues that th e evi dence was leg ally insufficient to support the jury ’ s finding that Charter ’ s co nduct was a producing cause of Lewis ’ s damages because Lewis failed to sho w a causal link betw een Charter ’ s al leged
wrong ful conduct and Lewis ’ s damages

.4 I. Standard of Revi ew We may sustai n a legal

- suf ficiency challenge

— that is, a no

- evidence challenge

— only when (1) the record discloses a complete abse nce of evidence of a vital fact, (2) the rul es of law or of evidence bar the court from giving weight to the only evidenc e of fered to prove a vital fact, (3) the evidence offered to prove a vital
fact i s no more than a mere scintilla, or (4) the evidence establis hes conclusively the
oppo site of a vi tal fact. F ord Motor Co. v. Castillo , 444 S.W.3d 616, 620 (Tex. 2014) (op.

on re h’g) ; Uniroyal G oodrich Tire Co. v. Martinez , 977 S.W.2d 328, 334 (Tex. 1998) (op. on reh’g) . In determining whether legally sufficient evidence support s the find ing
under re view, we mus t consider evidence favorable to the finding if a reasonable
factfind er co uld and mus t disregard c ontrary evidence unless a reasonable factfinder
could not. Cen t. Ready Mix Concrete Co. v. Islas , 228 S.W.3d 649, 651 (Tex. 2007); Ci ty of
Keller v. Wilson , 168 S.W.3d 802, 807, 827 (Tex. 2005).
II. Causation E vidence
Tex as la w rec ognizes an implied warra nty to repair or modify existing tangible goods or property in a good and workmanlike manner , and an action for breach of
this warrant y may be bro ught under the common law or under the DTPA

. Tex. Bus.
& Com. Code Ann. § 17. 50( a)( 2) ; Nghiem v . Sajib , 567 S.W.3d 718, 719 (Tex. 2019)

. “The implied warranty of good and workmanlike manner provides that a service will be performed in a skil lful and wor kmanlike manner , ” which is “ ‘that quality of work performed by one who has the kno wledg e, trainin g, or experien ce necessary for the5 successful practice of a trade or occupation and pe rformed in a manner generally considered proficient by those c apable of j udging such work.’” Barnett v. Coppell N.
Tex

. Court , Ltd. , 123 S.W.3d 804, 823 ( Tex. App.

— Dalla s 2003, pet. d enied) (quoting Melody Home Mfg. Co. v. Barnes , 741 S.W.2d 349, 35 4 (Tex. 1987) ).
To prove his breach of imp lied warranty claim , L ewis was requir ed to prove

c ause in fact

. See Mack Trucks, Inc. v. Tamez , 206 S.W.3 d 572, 582 (T ex. 2 006) (stat ing
that produ cing or proximate cause was an element of all of the plaintiff ’ s claims, including breach of warranty, and cause

- in

- fact is a part of both produc ing cause and proximate cause); see also Transcon. Ins. Co. v. Crump , 330 S.W. 3d 2 11, 2 23 (Tex. 2 010) (noting that “ the producing cause inquiry is conceptually identical to that of cause in
fact ” )

. “ Cause in fact mean s that the defendant ’ s conduct was a s ubstantial factor in bringing about the injury which would not otherwise have occu rred. ” Peeler v. Hughes
& Luce , 909 S .W.2d 494, 498 (Tex. 1995) ; cf. GB Tubulars, Inc. v. Union Gas Operating
Co. , 527 S.W.3d 563, 571 (Tex. App.

— Houston [14th Dist.] 2017 , pet. denied) (stating in the context of an express warranty claim that the cla im r equir es proof o f producing

cause , defi ned as “a cause that was a substantial factor in [the] bringing about of an occurrence, and without which the occurrence would not hav e occurred ” )

. The only evidence addressing causation came fr om Lewis ’ s testi mony. 2 Lewis
testified that he had no floodin g in his house when he ate breakfast on the mor ning of

2 Ch arter argues in its thir d issue that the trial court ’ s decision to allo w Lewis , a non

- exper t wi tness , t o tes tify about t he cause and origin of the flooding in his home6 July 10, 2013

. He furt her t estified that w hen he discovered the floodin g later, he
noticed for the first time that the subcontractor’s crew was already there work ing

. Lewis concluded that the crew caused the flooding because “ the water appeared while the crew was doing their work. ” The flooding was ongoing while the c rew was work ing , “ [ a] nd when they stopped using the spigot, the water no longer was coming
into the ho use.” Lewis’s testi mony provided no evidence , however, of when the
floo ding began or of when the crew began its work, other than that it happened
sometime after breakfast

. Lewis identified the water ’ s entry point into the house. H e could see water coming into the utility room from the wall on which the spigot was attached ou ts ide, and the water was coming from the area of the wall where the spigot is located

. He
then went outside , saw the crew, and noticed a bor ing tool and a nozzle lying on the ground b y the spigot

. The subcontractor’s employee told Lewis that the crew had
used the spigot to obtain water for the power spray that the y used to bury the cable

. Lewis had not autho rized the c rew’s use of the spigot and had not been asked for
per mission to u se it

. Importantly, no evidence was offered ab out how the spigot was
used or how any equ ipment was utilized in connection with the use of the spigot.

pr obably caused the rendition of an improper judg ment . Because we hold that even considering Lewis ’s testimony , the evidence is in sufficient to establish causation, we need not a ddre ss Chart er ’s third issue. See Tex. R. App. P. 47.1.7 Lewis testified that he had never had any prior water damage or water leaks in
his home. He stated that he had used the spigot a few times before and had neve r had any is sues or any flooding from using the spigot. Lewis did not testify to any
water le aks or flooding resulting from unauthorized use of the spigot before th e handle ’ s removal. He a lso denied e xperiencing any further water damage or flooding
in cidents in h is home after that day. Asked if he had any leaks from the pipes in the
walls in his utility room, he stated, “I don’t believe that pipe has any pro blem with it
whatsoever. It’s

— i t’s exterior to that where the

— where the pipe was damaged.”
Lewis admitted that after the flooding incid ent , he did not call a plumber to investigat e the cause of the flooding.
Lewis ’ s testimony was not enough to identify the unauthorized use of the spigo t

— the allege d breach of the implied warra nty in this case

— as the cause of the flooding

. Lewis did not discover, for examp le, that the spi got w as not properly
connected to t he pipe inside the wall

. Con tra Melody Home , 741 S.W.2d at 351 (upholding finding of breach of im plied warranty when the pl aintiffs discovered
that the sink in their prefabricated hom e had not been connec ted to t he drain in one
of the int erior walls, resu lting in a continu a l leak that caused damage to the home , and attempted re pairs by the seller c aused additional damages ). L ewis ’s own testimony was that there were no problems with the pipe or spigot before or after that day. There was no testimony that the way the subcontractor used its t ools to allegedly

creat e pressure forced water into Lewis ’s house. Assuming that the su bcontractor ’ s8 turning on the spig ot result ed in the flooding, Lewis produced no evidence of how

m erely turning on the spigot on the outside of the house was a substantial factor in causing the flooding inside of the house and w ithout which the flooding wou l d not
have occurred

. Certainly , the location and the timing of the flooding c reated a

suspicion that there was a connection of some kind between the flooding in Lewis ’s
home and the subcontractor ’s use of water in burying the cable

. Suspicion, however,
is not evidence. See Kindred v. Con/Chem, Inc. , 650 S.W.2d 61, 63 (Tex. 1983) (“When
the eviden ce offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” ). In short, Lewis m erely proved an unexplained temporal connection between two events. With no evidenc e showing a connection
between those two events

— the unau thorized use of the spigot o n the outside of the
house a nd the flooding on the inside of the house

— Lewis ’s proof is no evidence that
Cha rter ’s alleged br each of the implied warranty by using the spigot was a subst antial
factor in causing the flooding and without which the flooding wo ul d not have
occurred

. Bec ause the evidence is legally i nsufficient to support the jury ’ s finding that
Charter ’ s breach 3 of the implied warranty of good and workman like services cause d

3 T he part ies disagreed about Charter ’ s liability for breach of the i mplied warranty based on the conduct of its subcontractor. We need n ot and do not reach that issue

. See Tex. R. App. P. 47. 1

.9 Lewis ’ s dama ges , we sust ain Chart er ’ s f irst issue. T his is sue is dispo sitive ; we therefore need not consider Charter ’ s remaining issues. 4 See Tex . R. App. P. 47.1; Nat. Gas Pipeline Co. of Am. v. Pool , 124 S.W.3d 188, 201 (Tex. 2003) (op. on reh ’ g)

. Conclusion
Havi ng sustained C h arter ’s first issue , we reverse t he trial cou rt ’ s judgment, and

we ren der judgment th at Lewis take nothing on his claims.

/s/ Mike Wallach Mike Wallach Justice
Delivered: December 19, 2019

4 Ch arter argues in its remain in g issues that the evidence was factually insufficient to support the jur y’s causation finding (se cond issue), that legally and factually insufficient eviden ce support ed the jury’s finding when Lewis presented no evidence of the standard of per formance re qu ired of Charter (fourth and fifth issues), and that the jury returned a fa tally inconsistent verd ict when it found that Charter did not breach its contract with Lewis but th at Charter breached its implied warranty , given that bo th quest ions in cluded a defi nition of “good and workmanlike manner ” (si xth issue).