Opinion issued October 6, 2026
In The
Court of Appeals
For The
First District of Texas
NO. 01-23-00208-CV
TEXAS RV & CAR CARE, Appellant
V.
JAMES OEHLKE, Appellee
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Case No. 2018-20048
MEMORANDUM OPINION
Appellee James Oehlke sued Appellant Texas RV & Car Care for negligence,
negligent misrepresentation, fraud, and violations of the Texas Deceptive Trade
Practices Act after Oehlke’s recreational vehicle sustained extensive water damage
while being repaired by Texas RV. After a jury trial, the trial court rendered judgment in favor of Oehkle on his DTPA claim and awarded him actual damages,
additional damages based on the jury’s finding that Texas RV knowingly violated
the DTPA, and reasonable and necessary attorney’s fees.
On appeal, Texas RV argues that the trial court erred by (1) by rendering
judgment in Oehkle’s favor on his DTPA claim because there is no evidence it
engaged in a false, misleading, or deceptive act or practice in violation of the DTPA
or that such deceptive conduct was a producing cause of Oehkle’s damages,
(2) awarding additional damages under the DTPA because there is no evidence
Texas RV knowingly violated the DTPA, (3) awarding attorney’s fees because
Oehlke did not present expert testimony establishing that the fees are reasonable and
necessary, and (4) not allowing the attorney for Oehkle’s insurance provider—a
former co-defendant—to testify that the insurer denied Oehkle’s insurance claim
because the adjuster determined that the damage to the vehicle was the result of wear
and tear on the roof.
We reverse the trial court’s judgment and remand for further proceedings.
Background
James and Susan Oehkle took their 2005 Mountain Aire RV to Texas RV for
repairs on July 15, 2017. While it was at Texas RV, the RV sustained extensive water
damage during Hurricane Harvey. The Oehlkes sued Texas RV for negligence,
2
negligent misrepresentation, fraud, and violations of the Texas Deceptive Trade
Practices Act for the damage to the RV.1
Trial Testimony
The Oehlkes purchased the RV in 2006. The RV has two air conditioning units
on the roof and a third unit in the front dash. In 2007, the dealer who sold the Oehlkes
the RV replaced the RV’s rear air conditioning unit after the original unit stopped
working. Ten years later, on July 15, 2017, the Oehlkes took the RV to Texas RV
for servicing. When Oehkle and his wife Susan went to Texas RV on July 25 to
check on the status of the work, Susan asked Texas RV to also check the rear air
conditioning unit because it was not cooling enough. Oehkle testified that, among
other repairs, Texas RV replaced the rear air conditioning unit, and he agreed to
replace the unit because Texas RV told him it was needed. The RV was in Texas
RV’s possession when Hurricane Harvey made landfall in the Houston area on
August 25.
Oehkle and Susan picked up the RV from Texas RV on September 2. Texas
RV’s office manager, Rebecca, was the only person present when they arrived.
Oehkle testified that when Rebecca showed them the RV, the RV’s interior was
extremely cold and they could not see inside the back bedroom because Rebecca
1
The Oehlkes also sued National General Insurance Company for failing to cover
their claim. The court granted summary judgment in favor of National General in
September 2020.
3
stood in the doorway and blocked their access. According to Oehkle, they spent
maybe five minutes inside the RV. Oehkle testified that he and Susan arrived at
Texas RV close to closing time and he felt like Rebecca was rushing them to leave.
When asked if Rebecca told him that the “job was completed” when he picked up
the RV, Oehkle testified that “she charged me, yeah. She said come and get it again.”
Although Oehkle did not notice anything wrong with the RV when he picked
it up, he discovered the following morning that the RV’s interior had sustained
extensive water damage. The inside of the RV smelled like mold and mildew, the
carpeting was wet, and there was water on the walls. According to Oehkle, the back
bedroom had sustained the worst damage and the bed, which was directly under the
rear air conditioning unit, was completely saturated. When the Oehkles inspected
the RV’s roof, they found three small, exposed holes under the new air conditioning
unit that had not been there when they took the RV to Texas RV for repairs.
Oehkle testified that the holes in the roof were made when Texas RV removed
the rear air conditioning unit and installed the new unit. According to Oehkle, the
old unit had been mounted on the roof using those holes and because “the old unit
and the new unit that they put on did not match the bolt holes,” Texas RV “screwed
[the new unit] down in different locations and left the other holes exposed, the old
install.” Oehkle testified that they covered the holes with tape to protect the RV from
further damage.
4
Oehkle told Texas RV’s owner Jeff Maynard that the RV had sustained water
damage. According to Oehkle, Maynard refused to repair the RV and told Oehkle
that Texas RV was not liable for the damage because the “entire roof ha[d]
deteriorated due to lack of maintenance” and the water damage was due to the lack
of maintenance, not Texas RV’s installation of the new air-conditioning unit. Oehkle
testified that he did not take the RV back to Texas RV.
Oehkle testified that while the RV was being repaired, he went to Texas RV
on July 25 and on August 16, 18, and 24 to check on the status of the repairs. The
work orders and invoices generated on those dates were admitted into evidence.
Each work order and invoice contains an express warranty stating that the
“[w]arranty is for parts and labor, 1 Year or 12,000 miles, which ever occurs first.”
The July 25 work order has a notation stating, “Also Roof Needs Reseal.”
Oehkle, who was questioned multiple times about the notation, testified that no one
from Texas RV had shown him the work order or talked to him about the notation.
Oehkle testified, however, that someone at Texas RV verbally told him that the roof
needed to be resealed and that he chose not to have it resealed. Oehkle was also
questioned about an inspection checklist where Texas RV noted that the roof’s
sealant was not good, and it “needs reseal.” When shown the checklist and asked if
“it’s your testimony still that they never said anything about the roof needing to be
resealed,” Oehkle testified, “They never talked to me about it.” Oehkle testified that
5
there are two layers of sealant—a primary seal, which goes down first, and a
secondary seal, which is “[c]osmetic and it probably would help if the primary was
to leak for some reason.” He then testified:
Q. If Texas RV told you that it would flood, not just that you needed to
replace the caulking but the second seal, would you have done so?
A. Sure.
Q. Did they tell you that not replacing the secondary sealing would
result in water damage?
A. No.
With respect to the installation of the new air conditioning unit, both the
August 16 work order and invoice and the August 18 work order state, “R&R rear
upper a/c unit. No lower ceiling assembly. Unit screws to roof. Takes longer to
remove and install.”2 When questioned about the August 18 work order, Oehkle
testified that no one explained the notation to him.
Susan testified that she asked Texas RV to check the rear air-conditioning unit
because it was not cooling enough. According to Susan, she was present for every
conversation with Texas RV regarding the air conditioning unit. She testified that
Rebecca was the only person working when they went to Texas RV on September 2
to pick up the RV. When Rebecca showed them the RV, it was very cold inside and
2
Similarly, the August 24 and September 2 invoices state, “R&R Rear Upper A/C
Unit. No Lower Ceiling Assembly. Unit Screws To Roof. Takes longer to Remove
and install. Per Customer, 13.5K BTU Unit is Being Replaced With a 15K A/C
Unit.”
6
Rebecca asked her to feel the air conditioning vent to see how well the new unit was
working. Susan was unable to inspect the back bedroom because Rebecca was
standing in the doorway. Susan testified that it was near closing time when they
picked up the RV, and Rebecca told the Oehkles that she was waiting on them so
that she could leave.
Susan testified that the following morning she noticed that the RV’s interior
had sustained extensive water damage. Most of the water damage was in the back
bedroom, which was underneath the new air conditioning unit. She saw water
dripping down from the speaker in the ceiling over the bed and water was “actually
coming out of the carpet and the water was crawling up the wall.”
When she went up on the roof, Susan noticed exposed holes below the new
air-conditioning unit and the holes were large enough for her to insert her finger and
wiggle it around. Susan testified that there were no holes in the RV’s roof when they
left it with Texas RV. According to Susan, they informed Texas RV of the water
damage, but they never took the RV back to Texas RV, and Texas RV never offered
to repair the damage.
Sean Parsons, a damage appraiser, testified that Oehlke hired him to estimate
the damage to the RV. Parsons inspected the RV and prepared an inspection report
which was admitted into evidence. Parsons’ report states:
Per owner, the unit was at a repair shop during Hurricane Harvey for
AC repairs, and work was not completed prior to start of storm. The
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unit received water entry via holes and breather panel on roof. The new
AC doesn’t align with mount holes and prior holes caused entry points.
This unit received water intrusion that caused water damage over a
large area.
Based on his inspection, Parsons concluded that the water had entered the RV
through the holes in the roof near the rear air conditioning unit and it would cost
$95,767.30 to repair the damage to the RV.
Jeffrey Maynard, Texas RV’s owner, testified that Susan asked them to check
the rear air-conditioning unit—a 13.5K BTU with a heat pump—because it was not
cooling sufficiently and Texas RV recommended replacing the air-conditioning unit
with a 15K BTU unit that had a greater cooling capacity and did not have a heat
pump. According to Maynard, the 15K BTU unit was the same size and brand as the
old 13.5K unit and thus both air conditioning units would have been bolted to the
roof in the same place. According to Maynard, he explained the differences between
the two units to Oehkle, and Oehkle agreed to replace the 13.5K BTU with the 15K
BTU unit. Maynard testified that his technicians installed the rear air-conditioning
unit properly “[b]ecause my guys do a good job.”
When asked about the July 25 work order containing a notation that the roof
needed to be resealed, Maynard testified that Oehlke was not provided with a copy
of the work order “but we also had discussions and some of them very heated” during
which he could have told Oehkle that “he needs a complete reseal [of the roof]—a
scrape and reseal because the cracks are bad enough it’s going to leak.” Maynard
8
testified that he told Oehlke that the roof needed to be resealed because the primary
sealant—known as Dicor—was cracked. According to Maynard, he told Oehlke
multiple times that the RV’s roof needed to be resealed, and Oehkle always
responded that his “roof is fine,” there is “nothing wrong with it,” and the roof did
not “need to be resealed.” When asked if Oehkle had asked him to take any
precautions with regard to the RV prior to Hurricane Harvey, Maynard testified that
he was concerned that the RV’s roof could leak because of the cracked sealant and
when he expressed his concern to Oehkle, he responded that “[h]is roof was fine.”
Maynard testified that the roof needed to be resealed because it had not been
properly maintained and he believed that the water entered the coach through cracks
in the sealant. Maynard, who acknowledged that his technicians did not seal the holes
in the roof, testified that he did not know how or when the holes in the roof were
made, but he had no reason to believe that his technicians were responsible for
creating the holes when they replaced the rear AC unit. He testified that if his
technicians had drilled holes in the roof to install the new unit, they would have
sealed the holes left when they removed the old unit, but they would not have sealed
any pre-existing holes in the roof unless Oehkle had hired them to reseal the roof.
Maynard testified that if Oehkle had followed Texas RV’s recommendation to reseal
the entire the roof, Texas RV would have removed the old sealant and “resealed
everything properly,” which would have included any holes in the roof.
9
Jury Charge and Findings
The jury charge contained three questions applicable to Oehkle’s DTPA
claim—Questions 6, 7, and 8.
Question 6 asked the jury to determine:
What sum of money, if any, in addition to actual damages, should be
awarded to Plaintiff, James Oehlke against Defendant, Texas RV & Car
Care because Defendant’s conduct was committed knowingly.
If a defendant acts knowingly, you may multiply the Plaintiff’s
economic damages (cost to repair and loss of use) by up to three times.
Answer in dollars and cents, if any.
The jury answered, $110,000.
Question 7 asked the jury to determine whether Texas RV had engaged in
“any false, misleading, or deceptive act or practice that [Oehkle] relied on to his
detriment and that was a producing cause of damages to [Oehkle]” by “representing
that goods [or services] are or will be of a particular quality if they were of another,”
“representing that an agreement confers or involves rights that it did not have or
involve,” or “failing to disclose information about goods [or services] that was
known at the time of the transaction with the intention to induce [Oehkle]into a
transaction he otherwise would not have entered into if the information had been
disclosed.” The jury answered, “Yes.”
Question 8 asked the jury to determine what “sum of money, if any, if paid
now in cash, would fairly and reasonably compensate [Oehlke] for his damages, if
10
any, that resulted from” Texas RV’s false, misleading, or deceptive act or practice.
The jury answered, $68,150.
The jury also found in favor of Oehlke on his common-law negligence claim
and awarded him $90,978.65 in actual damages (Questions 1 and 3) and his
negligent misrepresentation claim and awarded him $150,000 in actual damages
(Questions 4 and 5). Although the jury found in favor of Oehlke on his common-law
fraud claim (Question 9), the jury was not asked to make a finding regarding the
amount of damages Oehkle sustained as a result of Texas RV’s fraudulent conduct.
Last, in response to Question 10, the jury found that a reasonable fee for
Oehkle’s attorney was $50,000.
Final Judgment
The final judgment states that the jury found in Oehkle’s favor on his
common-law negligence, negligent misrepresentation, fraud, and DTPA claims and
The jury having awarded damages for the same injury under multiple
theories, [Oehkle] exercised his right under the “one satisfaction”
doctrine to elect recovery for violation of the Deceptive Trade Practices
Act. [Oehkle] does not waive his right to elect recovery under a
different theory in the event this judgment is reversed or vacated.
Because Oehkle elected to recover on his DTPA claim, the trial court rendered
judgment in Oehkle’s favor on the DTPA claim and awarded him $68,150 in actual
damages, $110,000 in additional damages based on the jury’s finding that Texas RV
11
had acted knowingly, and $50,000 in reasonable and necessary attorney’s fees. This
appeal followed.
Texas Deceptive Trade Practices Act
In its first issue, Texas RV argues that the trial court erred by rendering
judgment in Oehkle’s favor on his DTPA claim because there is no evidence Texas
RV engaged in a false, misleading, or deceptive act by (1) misrepresenting that
services would be of a particularly quality when they were of another,
(2) misrepresenting that the invoices conferred or involved rights to Oehkle that they
did not have or involve, or (3) failing to disclose information known at the time about
its services to Oehkle with the intention of inducing Oehkle into the transaction
which he otherwise would not have entered into had the information been disclosed.
Texas RV further argues there is no evidence that any false, misleading, or deceptive
act by Texas RV was a producing cause of Oehlke’s damages because Parsons
provided the only evidence that the holes in the RV’s roof caused the water damage
and he was not qualified to offer expert testimony on causation.
A. Preservation of Error
Oehkle first argues that Texas RV did not preserve its challenge to the
sufficiency of the evidence supporting the jury’s finding that Texas RV engaged in
a false, misleading, or deceptive act under Question 7 because although it objected
to the submission of Question 7 and its instructions during the charge conference,
12
Texas RV’s objections were lacking in specificity and it did not obtain a ruling on
its objections.
A no-evidence, or legal sufficiency, complaint may be preserved by (1) a
motion for instructed verdict, (2) a motion for judgment notwithstanding the verdict,
(3) an objection to the submission of the issue to the jury, (4) a motion to disregard
the jury’s answer to a vital fact issue or (5) a motion for new trial. Cecil v. Smith,
804 S.W.2d 509, 510–11 (Tex. 1991). An issue is not preserved on appeal, however,
unless the record shows that it was presented to the trial court “by a timely request,
objection, or motion” that “stated the grounds for the ruling that the complaining
party sought from the trial court with sufficient specificity to make the trial court
aware of the complaint, unless the specific grounds were apparent from the context,”
and “the trial court . . . ruled on the request, objection, or motion,” or “refused to
rule[,] . . . and the complaining party objected to th[at] refusal.” TEX. R. APP. P.
33.1(a).
During the charge conference, Texas RV objected to the submission of
Question 7, and to each instruction specifically, on the basis that there was no
evidence that it had engaged in any of the deceptive acts set forth in the instructions.
After hearing Texas RV’s objections and the argument of counsel, the trial court
overruled Texas RV’s objections to three of the proposed instructions by stating that
“the failing to disclose will definitely be part of the jury charge. The quality will also
13
be part of the jury charge . . . I’m going to allow in the agreement. Those three will
go back to the jury. . .”
Texas RV thus preserved its challenge to the sufficiency of the evidence
supporting the jury’s findings under Question 7 by raising specific objections to the
submission of Question 7 and each of its instructions and obtaining a ruling on its
objections. See id.; Cecil, 804 S.W.2d at 510–11 (stating party can preserve no
evidence complaint by objecting to submission of issue to jury).
B. Standard of Review
In reviewing the legal sufficiency of evidence supporting a jury finding, we
view the evidence in the light most favorable to the finding, crediting favorable
evidence if a reasonable factfinder could, and disregarding contrary evidence unless
a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827
(Tex. 2005). We consider the evidence in context rather than in isolation. AutoZone,
Inc. v. Reyes, 272 S.W.3d 588, 592 (Tex. 2008) (“Even though the evidence is
viewed in the light most favorable to the verdict, it cannot be considered in isolated
bits and pieces divorced from its surroundings; it must be viewed in its proper
context with other evidence.”) (citing City of Keller, 168 S.W.3d at 827).
A party who challenges the legal sufficiency of a finding on which it did not
have the burden of proof must demonstrate that there is no evidence to support the
adverse finding. See Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194,
14
215 (Tex. 2011). We may not sustain a legal sufficiency or no-evidence point unless
the record demonstrates that (1) there is a complete absence of a vital fact; (2) the
court is barred by the rules of law or of evidence from giving weight to the only
evidence offered to prove a vital fact; (3) the evidence to prove a vital fact is no more
than a scintilla; or (4) the evidence established conclusively the opposite of the vital
fact. City of Keller, 168 S.W.3d at 810. “Evidence is conclusive only if reasonable
people could not differ in their conclusions . . . .” Id. at 816. As the factfinder, the
jury is the sole judge of the witnesses’ credibility and the weight to give their
testimony. See id. at 819.
C. Applicable Law
The DTPA prohibits “[f]alse, misleading, or deceptive acts or practices in the
conduct of any trade or commerce.” Everett v. TK-Taito, L.L.C., 178 S.W.3d 844,
857 (Tex. App.—Fort Worth 2005, no pet.). “To recover under the DTPA, the
plaintiff must show that (1) he is a consumer, (2) the defendant engaged in a false,
misleading, or deceptive act, and (3) the act constituted a producing cause of
economic damages or damages for mental anguish.” Id. (citing TEX. BUS. & COM.
CODE § 17.50(a)(1); Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472,
478 (Tex. 1995)). “Producing cause” means “a substantial factor which brings about
the injury and without which the injury would not have occurred.” Doe, 907 S.W.2d
15
at 481. This requires evidence that the consumer was adversely affected by the
defendant’s deceptive conduct. See id.
A false, misleading, or deceptive act or practice includes
(7) representing that goods or services are of a particular standard,
quality, or grade, or that goods are of a particular style or model,
if they are of another…
(12) representing that an agreement confers or involves rights,
remedies, or obligations which it does not have or involve, or
which are prohibited by law [and]
(24) failing to disclose information concerning goods or services
which was known at the time of the transaction if such failure to
disclose such information was intended to induce the consumer
into a transaction into which the consumer would not have
entered had the information been disclosed…
TEX. BUS. & COM. CODE § 17.46(b)(7), (12), (24).
D. Analysis
Question 7 asked the jury to determine whether Texas RV had engaged in
“any false, misleading, or deceptive act or practice that [Oehkle] relied on to his
detriment and that was a producing cause of damages to [Oehkle]” by
(1) “representing that goods [or services] are or will be of a particular quality if they
were of another,” see id. § 17.46(b)(7); (2) “representing that an agreement confers
or involves rights that it did not have or involve,” see id. § 17.46(b)(12); or (3)
“failing to disclose information about goods [or services] that was known at the time
of the transaction with the intention to induce [Oehkle] into a transaction he
16
otherwise would not have entered into if the information had been disclosed,” see
id. § 17.46(b)(24).
According to Texas RV, it is unclear what Oehkle’s theory is regarding the
alleged wrong committed by Texas RV under the DTPA. To the extent his complaint
is that the roof was not sealed after Texas RV replaced the air conditioning unit,
Texas RV argues that “the record is replete with evidence that [Texas RV]
specifically recommended to [Oehkle] that the roof needed to be resealed, and
[Oehkle] chose not to have the roof resealed.” According to Texas RV, “not only is
the record devoid of any testimony as to what [Texas RV’s] act [was] that could be
considered a misrepresentation but, to the contrary, the record proves conclusively
that [Oehkle] was told that the roof of the RV needed to be resealed, and he simply
refused.”
Oehkle argues that he articulated the factual theory for his DTPA claim in his
response to Texas RV’s Motion to Vacate Judgment, Motion for Judgment
Notwithstanding Verdict, and Motion for New Trial (the “Response”). Quoting his
Response, Oehkle argues that Texas RV misrepresented the quality of its goods or
services because
[Texas RV] misrepresented to [Oehlke] that [Texas RV] would replace
[Oehlke’s] air-conditioning unit with the same-sized unit. [Texas RV]
misrepresented to [Oehlke] that [Texas RV] had properly installed the
new air-conditioning unit. [Texas RV] misrepresented to [Oehlke] that
the new air-conditioning unit would attach to the RV’s roof as it did
before. [Texas RV] misrepresented to [Oehlke] that new holes were
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required in the RV’s roof. [Texas RV] misrepresented to [Oehlke] that
[Oehlke’s] RV did not sustain water damage. [Texas RV]
misrepresented to [Oehlke] the need to replace the RV’s caulking.
1. Failure to disclose need to reseal the roof
Oehkle argues that Texas RV did not conclusively prove that it recommended
to Oehkle that the roof be resealed and Oehkle rejected the recommendation because
Oehkle testified that Texas RV did not tell him that the roof be resealed. In his
Response, which he quotes in his brief, Oehkle also argued that Texas RV “failed to
inform him that there were exposed holes on the RV’s roof” and it misrepresented
to him “the need to replace the RV’s caulking.” Liberally construing Oehkle’s brief,
we understand him to argue that Texas RV engaged in a false, misleading, or
deceptive act or practice in violation of the DTPA because Texas RV knew there
were exposed holes in the RV’s roof and that the roof needed to be resealed to avoid
water intrusion into the RV’s interior, and Texas RV failed to disclose either piece
of information to Oehlke.
Because this alleged false, misleading, or deceptive act or practice is premised
on Texas RV’s purported failure to disclose information to Oehkle, as opposed to an
affirmative representation, it is actionable under Section 14.76(b)(24) rather than
Subsection (b)(7). See Steptoe v. True, 38 S.W.3d 213, 217 (Tex. App.—Houston
[14th Dist.] 2001, no pet.) (“A DTPA misrepresentation usually requires an
affirmative representation, although sometimes the failure to disclose may be
18
actionable.”); see also TEX. BUS. & COM. CODE § 17.46(b)(7), (24). The mere
nondisclosure of material information is not enough to establish an actionable DTPA
claim under Section 17.46(b)(24). Jasek v. Tex. Farm Bureau Underwriters, No. 14-19-00759-CV, 2022 WL 364050, at *3 (Tex. App.—Houston [14th Dist.] Feb. 8,
2022, no pet.) (mem. op.) (citing TEX. BUS. & COM. CODE § 17.46(b)(24)). There
must also be evidence that defendant withheld the information with the intention of
inducing the consumer “into a transaction into which the consumer would not have
entered had the information been disclosed.” TEX. BUS. & COM. CODE
§ 17.46(b)(24) (stating false, misleading, or deceptive act or practice includes
“failing to disclose information concerning goods or services which was known at
the time of the transaction if such failure to disclose such information was intended
to induce the consumer into a transaction into which the consumer would not have
entered had the information been disclosed…”).
Even assuming Texas RV failed to recommend to Oehlke that the roof needed
to be resealed, and it knew there were holes in the roof and that the roof would leak
if it was not resealed,3 the parties have not directed us to any evidence that Texas
RV failed to make these alleged disclosures to Oehkle with the intention of inducing
3
Texas RV argues that there is no evidence that there were holes in the roof when it
replaced the air conditioner or that it created the holes when it installed the new air
conditioner. It does not dispute that it knew the roof would leak if it was not resealed
because the primary sealant was cracked.
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Oehkle into a transaction he would not have entered had Texas RV disclosed this
information to him.4
2. Other false, misleading, or deceptive acts or practices
Oehkle argues that the record contains sufficient evidence demonstrating that
Texas RV misrepresented the quality of its services and that the invoices signed by
Oehkle and Texas RV conferred or involved warranty and indemnification rights
that they did not have or involve. According to Oehkle, Texas RV misrepresented
to him that it would replace the rear air-conditioning unit with a “same-sized unit”
that “would be properly installed,” “would attach to the RV’s roof as it did before,”
and that “new holes were required in the RV’s roof.” According to Oehkle, Texas
RV also misrepresented that it “had properly installed the new air-conditioning unit,”
“when [Texas RV] completed the repairs to the RV, that there were no deficiencies
in the installation,” and the RV “did not sustain water damage.”
4
We note that Oehlke testified that Texas RV never told him that the RV would suffer
water damage if the roof was not resealed and that had Texas RV disclosed this
information to him, he would have paid Texas RV to reseal the roof. This testimony
demonstrates that the disclosure of this information would have had the opposite
result—it would have induced Oehkle to pay Texas RV to reseal the roof, which is
a transaction Oehlke did not enter into. See TEX. BUS. & COM. CODE § 17.46(b)(24)
(stating false, misleading, or deceptive act or practice includes “failing to disclose
information concerning goods or services which was known at the time of the
transaction if such failure to disclose such information was intended to induce the
consumer into a transaction into which the consumer would not have entered had
the information been disclosed…”).
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We have not found, nor have the parties directed us to, any evidence that
Texas RV misrepresented to Oehlke that the new air-conditioning unit would be the
same size unit as the old unit, that the new unit would “attach to the RV’s roof as it
did before,” or that “new holes were required in the RV’s roof.” Neither Oehkle nor
Susan testified that Texas RV made any representations to them about the size of the
new air-conditioning unit, how it would attach to the roof, or whether Texas RV
would need to drill holes in the roof to install the new unit. At most, Susan testified
that unlike the old unit, the new unit did not have a heat pump, and she did not ask
Texas RV to install an air conditioner without a heat pump. She also testified that
the only conversation she and Oehkle had with Texas RV regarding the rear air
conditioning unit was on July 25, when she asked Texas RV to check the old unit
because it was not cooling sufficiently. Oehkle testified that Texas RV
recommended replacing the rear air conditioning unit, and he agreed to replace the
air conditioner because Texas RV told him that he needed a new unit.
Similarly, we have not found, nor have the parties directed us to, any evidence
that Texas RV misrepresented to Oehlke that it had properly installed the new
“correct-sized” air-conditioning unit, and “when [Texas RV] completed the repairs
to the RV, that there were no deficiencies in the installation.” At most, the record
reflects that when he was asked if Rebecca told him that the “job was completed”
when he picked up the RV, Oehkle testified, “She charged me, yeah. She said come
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and get it again.” More to the point, even if there were evidence that Texas RV made
these misrepresentations to Oehkle, any such misrepresentation could not have been
a producing cause of Oehkle’s injury—the water damage sustained by the RV during
Hurricane Harvey—because the alleged representations would have been made after
the injury occurred and thus could not have been a substantial factor in bringing
about the injury. See Doe, 907 S.W.2d at 481 (stating “producing cause” means “a
substantial factor which brings about the injury and without which the injury would
not have occurred”).
Even assuming that the Oehkles’ testimony that when they picked up the RV,
Rebecca tried to mask any odors by making the RV extremely cold, blocking their
access to the bedroom located directly under the air conditioner, and rushing their
inspection of the RV, is some evidence that Texas RV misrepresented or failed to
disclose that the “RV did not sustain water damage,” this misrepresentation or failure
to disclose could not have been a producing cause of the water damage sustained by
the RV because the misrepresentation was made after the injury occurred. See id.
(stating misrepresentation must be substantial factor in bringing about injury and
without which injury would not have occurred).
The evidence Oehkle expressly relies on—testimony and exhibits it argues
“describ[es] the size of the holes,” “invoices evidencing the installation of the wrong
sized air-conditioning unit,” and invoices and testimony purportedly showing that
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Texas RV installed a “different air-conditioning unit”—does not demonstrate that
Texas RV represented to Oehkle that goods or services were of a particular quality
when they were of another. As noted, there is no evidence that Texas RV made any
representations about the size of the new air-conditioning unit, how it would attach
to the roof, or whether Texas RV would need to drill holes in the roof to install the
new unit. Thus, evidence that Texas RV installed a “wrong sized” or “different airconditioning unit” and of the size of the holes—as Oehkle alleges—establishes only
that Texas RV did not properly install a correctly-sized air conditioning unit, but it
does not demonstrate that Texas RV in fact made such representations.
Even if we consider Parsons’ testimony that the water damage was caused by
the exposed holes in the roof under the new air conditioner, there is no evidence that
any of Texas RV’s purported misrepresentations were a producing cause of Oehkle’s
injury. To recover on his DTPA claim, Oehkle had to establish that Texas RV made
a misrepresentation or failed to disclose information to Oehkle on which he relied to
his detriment and that Texas RV’s deceptive act—the misrepresentation or the
failure to disclose—was a producing cause of his injury. See id. (defining producing
cause as “a substantial factor which brings about the injury and without which the
injury would not have occurred”). It is not enough for Oehkle to show that Texas
RV installed a wrong-sized air conditioner or failed to seal the holes in the RV’s roof
when Texas RV installed the new unit and that Oehkle’s damages were caused when
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water seeped into the RV through those holes. Oehkle had to provide some evidence
of a causal relationship between the water damage sustained by the RV and Texas
RV’s alleged misrepresentation, not Texas RV’s purportedly defective installation
of the new air conditioner.
3. Agreement conferring or involving rights
Oehkle also argues that the evidence demonstrates that Texas RV represented
to him that the invoices he signed conferred or involved rights that they did not have
or involve. For support, he argues that Texas RV represented to Oehkle that the
invoices “involved several workmanlike warranties and would indemnify any
damage caused” by Texas RV but “when [Oehlke] returned his vehicle after
discovery of damage to the interior, [Texas RV] offered no such warranty.”
The invoices contain an express warranty “for parts and labor, 1 Year or
12,000 miles, which ever occurs first.” There is no evidence that Texas RV told
Oehlke that the invoices conferred warranty rights they did not confer or required
Texas RV to indemnify Oehlke for any damage to the RV caused by Texas RV.
Evidence that Texas RV told Oehkle that the RV’s water damage was not covered
by the warranty does not demonstrate that Texas RV misrepresented to Oehkle the
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nature of the invoices or the rights they conferred or involved. At most, such
evidence raises a question as to whether Texas RV fulfilled its warranty obligations.5
Viewing the evidence in the light most favorable to the jury’s findings that
Texas RV violated the DTPA, crediting favorable evidence if a reasonable factfinder
could, and disregarding contrary evidence unless a reasonable factfinder could not,
we conclude there is no evidence Texas RV engaged in a false, misleading, or
deceptive act on which Oehkle relied to his detriment and that any such act was a
producing cause of Oehkle’s injury. See City of Keller, 168 S.W.3d at 827.
We thus sustain Texas RV’s first issue challenging the legal sufficiency of the
evidence supporting the jury’s finding that Texas RV violated the DTPA.6
5
Although a breach of warranty claim can be asserted under Section 17.50(a)(2) of
the DTPA, Oehkle neither asserted a Section 17.50(a)(2) DTPA claim, nor was the
jury asked to determine whether Texas RV violated any warranty, whether express
or implied. See TEX. BUS. & COM. CODE § 17.50(a)(2) (stating consumer may bring
DTPA claim based on “breach of an express or implied warranty”); Nghiem v. Sajib,
567 S.W.3d 718, 723 (Tex. 2019). Instead, Oehkle brought his DTPA claim
exclusively under Subsection (a)(1) which authorizes claims based on “the use or
employment by any person of a false, misleading, or deceptive act or practice,” as
defined in Section 17.46(b), that the customer relied on to his detriment. See TEX.
BUS. & COM. CODE § 17.50(a)(1).
6
Having done so, we need not consider Texas RV’s remaining issues. See TEX. R.
APP. Proc. 47.1 (“The court of appeals must hand down a written opinion that is as
brief as practicable but that addresses every issue raised and necessary to final
disposition of the appeal.”).
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Election of Remedies
Oehkle argues that if we hold there is insufficient evidence supporting the
jury’s finding that Texas RV violated the DTPA and reverse the trial court’s
judgment, we should render judgment in Oehkle’s favor on his negligence or
negligent misrepresentation claims because Texas RV does not challenge the jury’s
findings with regard to either claim.7
Because Oehkle elected to recover on his DTPA claim and the trial court
rendered judgment in his favor solely on that basis, Texas RV was not required to
challenge on appeal the jury’s findings on Oehkle’s negligence and negligent
misrepresentation claims. See Guidry v. Envtl. Procedures, Inc., 388 S.W.3d 845,
859 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (stating that although “the
parties were not required to address the question of whether, in the event the trial
court’s judgment was reversed, the [plaintiffs] were entitled to any recovery under
an alternative theory,” appellate court may address alternative bases for judgment if
alternative grounds were fully briefed). We thus cannot say that Oehkle is entitled
to a rendition of judgment in his favor on his negligence or negligent
misrepresentation claims simply because Texas RV is not challenging the jury’s
finding on either claim in this appeal. The cases Oehkle relies on— Krobar Drilling,
7
Although the jury also found in Oehkle’s favor on his fraud claim, the jury was not
asked to make a finding regarding the amount of damages that Oehkle sustained as
a result of Texas RV’s fraudulent conduct.
26
L.L.C. v. Ormiston and Star Houston, Inc. v. Shevack—are inapposite and neither
requires us to render judgment in Oehkle’s favor at this stage of the proceeding. See
Krobar Drilling, L.L.C. v. Ormiston, 426 S.W.3d 107, 113 (Tex. App.—Houston
[1st Dist.] 2012, pet. denied) (holding election of remedies doctrine does not apply
to assertion of distinct causes of action against different defendants); Star Houston,
Inc. v. Shevack, 886 S.W.2d 414, 422–23 (Tex. App.—Houston [1st Dist.] 1994,
writ denied) (stating appellate court can reform trial court’s judgment to award
judgment based on claim that affords plaintiff greatest relief when plaintiff failed to
make election of remedies, and trial court did not utilize findings to award judgment
on basis affording greatest recovery).
Because the jury found in favor of Oehkle on his negligence and negligent
misrepresentation claims and Oehkle has not waived recovery under either
alternative theory, we conclude that the appropriate remedy is to remand the case to
the trial court for Oehkle to make a new election of remedies. See Boyce Iron Works,
Inc. v. Sw. Bell Tel. Co., 747 S.W.2d 785, 787 (Tex. 1988) (stating party may seek
recovery under alternative theory if judgment based on one theory is reversed on
appeal); see also Myre v. Meletio, 307 S.W.3d 839, 846 (Tex. App.—Dallas 2010,
pet. denied) (remanding to trial court for new election of remedies after holding
evidence legally insufficient to support judgment for fraud).
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Conclusion
We reverse the trial court’s judgment based on the jury’s DTPA findings,
including its award of additional damages and attorney’s fees, and render a takenothing judgment against Oehkle on his DTPA claim against Texas RV. We remand
the case to the trial court for Oehkle to make a new election of remedies. See Boyce
Iron Works, Inc., 747 S.W.2d at 787.
Veronica Rivas-Molloy
Justice
Panel consists of Justices Rivas-Molloy, Guiney, and Morgan.
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