Paul Kramer and PK Industries D/B/A Castlegate Homes v. Melissa and Scot Hollmann

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00136-CV

Paul Kramer and PK Industries d/b/a § From the 352nd District Court
Castlegate Homes
§ of Tarrant County (352-227900-07)
v.
§ November 21, 2012

Melissa and Scot Hollmann § Opinion by Justice McCoy

JUDGMENT

This court has considered the record on appeal in this case and holds that

there was no error in the trial court‘s judgment. It is ordered that the judgment of

the trial court is affirmed.

It is further ordered that Appellants, Paul Kramer and PK Industries d/b/a

Castlegate Homes, shall pay all costs of this appeal, for which let execution

issue.

SECOND DISTRICT COURT OF APPEALS

By_________________________________
Justice Bob McCoy
 COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-11-00136-CV

PAUL KRAMER AND PK APPELLANTS
INDUSTRIES D/B/A CASTLEGATE
HOMES

V.

MELISSA AND SCOT HOLLMANN APPELLEES

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FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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I. Introduction

In nine issues, Appellants Paul Kramer and PK Industries d/b/a Castlegate

Homes (collectively, Homebuilder) appeal the trial court‘s judgment for Appellees

Melissa and Scot Hollmann. We affirm the trial court‘s judgment.

1
See Tex. R. App. P. 47.4.

2
 II. Factual and Procedural Background

The Hollmanns contacted Kramer about building a home after they saw his

name and phone number on a Castlegate Homes sign. They entered into a

design agreement for Castlegate, the name under which PK Industries operated,

to manage the home‘s design and construction plan development by engaging

an architect; they also entered into a residential construction contract with

Castlegate to build the $2 million home. PK Industries was the project‘s general

contractor, and Kramer was the PK Industries representative with whom the

Hollmanns communicated.

As construction progressed, the house developed a moisture leak, but

Kramer sent an email to the Hollmanns telling them not to worry about it because

it had been fixed. After the Hollmanns moved into the house, it developed

additional moisture problems involving the windows, the HVAC system, and the

roof, all of which were installed by different subcontractors. The Hollmanns

continued to communicate with Kramer, who assured them that he would make

everything right, but after mold appeared in the house, the Hollmanns moved out.

PK Industries sued Houk Air Conditioning, Inc., and the Hollmanns

intervened, suing several additional parties—including the architect, the roofing

company, and the window subcontractor—for breach of contract, breach of

warranty, negligence, and violations of the Deceptive Trade Practices Act

3
(DTPA).2 The Hollmanns then added Kramer as a defendant in their first

amended petition and sued both PK Industries and Kramer for DTPA violations,

breach of contract, breach of warranty, and negligence. Kramer represented

himself pro se.

The trial court granted partial summary judgment for some of the

contractors on all of PK Industries‘ claims against them except for negligence,

which it severed into a separate case. The Hollmanns settled with the architect

and the roofing company before trial, and the trial court dismissed them from the

suit with prejudice. The jury awarded damages to the Hollmanns after finding

that (1) PK Industries breached the residential construction contract, (2) Kramer

breached a warranty and engaged in a false, misleading, or deceptive act or

practice, and (3) Kramer acted on PK Industries‘ behalf. The trial court rendered

judgment accordingly.

III. Sufficiency

In its seventh issue, Homebuilder complains that the evidence is legally

and factually insufficient to support the jury‘s finding that Kramer and PK

Industries violated the DTPA. In its ninth issue, it complains that the evidence

supporting the Hollmanns‘ DTPA claim against Kramer is legally insufficient

because the claim was barred by limitations.3

2
See Tex. Bus. & Com. Code Ann. § 17.46 (West 2011).
3
When the judgment rests on multiple theories of recovery and any one
theory is valid, we do not address the other theories. George Grubbs Enters.,

4
A. Legal and Factual Sufficiency Standards of Review

We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

Anything more than a scintilla of evidence is legally sufficient to support the

finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);

Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered

Inc. v. Bien, 881 S.W.2d 843, 851 n.7 (Tex. App.—Fort Worth 1994), rev'd on
other grounds, 900 S.W.2d 337 (Tex. 1995). The trial court‘s judgment rests
upon the jury‘s finding that Kramer breached warranties and violated the DTPA.
Because the DTPA violations alone are sufficient to support the trial court‘s
judgment, we do not reach Homebuilder‘s eighth issue concerning Kramer‘s
breach of warranty liability.

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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. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.

1983). More than a scintilla of evidence exists if the evidence furnishes some

reasonable basis for differing conclusions by reasonable minds about the

existence of a vital fact. Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co., 77 S.W.3d

253, 262 (Tex. 2002).

When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh‘g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965).

Absent an objection to the jury charge, the sufficiency of the evidence is

reviewed in light of the charge submitted.4 Wal-Mart Stores, Inc. v. Sturges, 52

4
In its sixth issue, Homebuilder complains about a portion of Question No.
7, upon which the jury found that Kramer had engaged in false, misleading, or
deceptive acts or practices. However, neither PK Industries nor Kramer objected
to any portion of Question No. 7 before the question was submitted to the jury.
Therefore, we overrule Homebuilder‘s sixth issue because this complaint was not
preserved for our review, see Tex. R. App. P. 33.1; Tex. R. Civ. P. 274;
Catalanotto v. Meador Oldsmobile LLC, No. 02-10-00044-CV, 2011 WL 754413,
at *8 (Tex. App.—Fort Worth Mar. 3, 2011, no pet.) (mem. op.), and we review

6
S.W.3d 711, 715 (Tex. 2001); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71

(Tex. 2000).

B. DTPA Violations

With regard to misrepresentations under the DTPA, the jury was asked in

Question No. 7 whether Kramer engaged in any false, misleading, or deceptive

act or practice that the Hollmanns relied on to their detriment and that was a

producing cause of damages to the Hollmanns. The jury was instructed that

―false or deceptive act or practice‖ means any of the following:

1. Representing that goods or services had or would have
characteristics that they did not have; or

2. Representing that goods or services are or will be of a particular
quality if they were of another; or

3. Failing to disclose information about goods or services that was
known at the time of the transaction with the intention to induce
the Hollmanns into a transaction they otherwise would not have
entered into if the information had been disclosed.

The jury answered ―yes‖ to this question. The jury also answered affirmatively

Question No. 10 regarding whether Kramer acted on behalf of PK Industries

when he engaged in any of the conduct found in answer to Question No. 7.

In its seventh issue, Homebuilder argues that the evidence is legally and

factually insufficient to support the jury‘s finding that it violated the DTPA and

urges us to hold that Kramer‘s statements to the Hollmanns were mere ―puffery.‖

the sufficiency of the evidence to support the finding challenged in Homebuilder‘s
seventh issue in light of this instruction.

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In support of its insufficiency argument, it cites five specific statements made by

Kramer after the Hollmanns contacted him about building a house: that the

house would be a ―magnificent home with a quality level rarely seen in Tarrant

County,‖ that it would be a ―kick butt house,‖ that ―this is going to be a really great

house,‖ that it would be ―one of the finest homes in the City,‖ and that the

Hollmanns would be ―pleased as punch.‖

1. Puffery

―Misrepresentations are actionable under the DTPA ‗so long as they are of

a material fact and not merely ―puffing‖ or opinion.‘‖ Main Place Custom Homes,

Inc. v. Honaker, 192 S.W.3d 604, 624 (Tex. App.—Fort Worth 2006, pet. denied).

Puffery is ―an expression of opinion by a seller not made as a representation of

fact.‖ Dowling v. NADW Mktg., Inc., 631 S.W.2d 726, 729 (Tex. 1982).

Courts consider the circumstances under which a statement was made to

determine whether a statement is an opinion or an actionable misrepresentation,

employing a three-factor test. Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 276

(Tex. 1995); Honaker, 192 S.W.3d at 624. First, the court will examine the

statement‘s specificity. Honaker, 192 S.W.3d at 624. ―An imprecise or vague

representation constitutes a mere opinion.‖ Humble Nat’l Bank v. DCV, Inc., 933

S.W.2d 224, 230 (Tex. App.—Houston [14th Dist.] 1996, writ denied). Second,

the court will compare subject-matter knowledge of the buyer and seller, asking

―whether or not [a statement‘s] correctness is a matter of which either of the

parties can judge as well as the other,‖ and upon which the buyer can reasonably

8
be expected, in the exercise of ordinary diligence, to have formed his own

opinion. Autohaus, Inc. v. Aguilar, 794 S.W.2d 459, 463 (Tex. App.—Dallas

1990, writ denied) (quoting U.S. Pipe & Foundry Co. v. City of Waco, 108 S.W.2d

432, 436–37 (Tex. 1937)). Third, the reviewing court will ascertain whether the

representation refers to a past, present, or future condition. Humble, 933 S.W.2d

at 230. Representations concerning past or present conditions require greater

scrutiny than those concerning future conditions because predictions tend more

toward opinion. See Autohaus, 794 S.W.2d at 464 (holding that ―a general

statement concerning a future event should be looked at differently than a

statement concerning a past or present event or condition, especially when

examining the specificity of a statement involving [future conditions]‖).

In Honaker, we addressed whether a homebuilder‘s statements constituted

actionable misrepresentations. 192 S.W.3d at 624. Upon seeing a house under

construction, the Honakers approached the builder to inquire about the property.

Id. at 610. When the Honakers expressed concern about the house‘s position on

a steep slope, the builder told them that the ―house and lot [are] as solid as they

come,‖ and that the property ―was stable and . . . there would be no problems

with the house or property falling away.‖ Id. The Honakers bought the house,

and problems related to subsidence appeared within two years. Id. at 611. The

Honakers sued the builder for DTPA violations, claiming that the builder‘s

statements constituted actionable misrepresentations, id. at 611–12, and they

prevailed at trial and on appeal. Id. at 624–25. Specifically, we held that the

9
builder‘s statements were affirmative assertions that the property was stable

when it was not. Id. at 624. Additionally, we noted that the builder, having

several years of experience, was in a better position to know the property‘s

condition than the Honakers. Id.

As an initial matter, we hold without further discussion that the term ―kick

butt house‖ and the assertion that the Hollmanns would be ―pleased as punch‖

are slang terms constituting an opinion and are not fact assertions. See

Autohaus, 794 S.W.2d at 464 (holding that words with indefinite meanings do not

constitute actionable misrepresentations). Likewise, we hold that Kramer‘s claim

that the house will be ―really great‖ is too indefinite to constitute an actionable

misrepresentation. See id.

Kramer‘s remaining two statements are considerably more specific and

precise than his other statements. See Humble, 933 S.W.2d at 230. However,

they still lack the degree of specificity necessary to meet the first factor when

compared to the misrepresentations in Honaker. See 192 S.W.3d at 624–25.

The statements in Honaker were specific affirmative assertions regarding the

property‘s condition. Id. at 624. Indeed, the very concerns they addressed came

to fruition soon after the house was built. Id. at 611. Stating that the property is

stable and that there will be no problems with subsidence speaks directly to a

potential problem apparent even to the buyer, given the property‘s location on a

steep slope. Id. at 610. In contrast, Kramer‘s statements are far less specific

and more subjective as Kramer merely stated that the house would be

10
―magnificent‖ and one of the ―finest.‖ These statements speak only to subjective

impressions and contain no specific representations like those found in Honaker.

Likewise, these statements concern subjects that could be judged equally

by either party and upon which the Hollmanns could form their own opinions

through ordinary diligence, unlike the knowledge necessary to determine whether

a pad has been properly prepared so as to avoid subsidence—the type of

disparity necessary to show that the seller had superior knowledge. See id. at

624. And Kramer‘s statements related to a future condition, tending toward

opinion. Cf. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 503–04 (Tex. 2001)

(holding that representations regarding specific future crop yields were more than

puffery).

Based on the three-factor test, we hold that the statements that the house

would be ―a magnificent home with a quality level rarely seen in Tarrant County‖

and ―one of the finest homes in the city‖ are expressions of opinion and are

puffery, not representations of fact.

2. Repairs

Notwithstanding the specific statements Homebuilder cites, however, we

cannot say that there is legally insufficient evidence to support the jury‘s DTPA

finding with regard to any false, misleading, or deceptive act or practice by

Kramer. See City of Keller, 168 S.W.3d at 827.

A statement falsely indicating that repairs were successful is actionable

under the DTPA. See Tex. Bus. & Com. Code Ann. § 17.46(b)(7) (allowing

11
claims for misrepresenting service quality); Woods v. Littleton, 554 S.W.2d 662,

666 n.6 (Tex. 1977); Gomez v. Moore, No. 12-01-00261-CV, 2003 WL

21355973, at *5 (Tex. App.—Tyler June 11, 2003, no pet.) (mem. op.); Milt

Ferguson Motor Co. v. Zeretzke, 827 S.W.2d 349, 355 (Tex. App.—San Antonio

1991, no writ). Additionally, the implied warranty to repair in a good and

workmanlike manner applies to suits under the DTPA. See Tex. Bus. & Com.

Code Ann. § 17.50(a)(2) (West 2011); Melody Home Mfg. Co. v. Barnes, 741

S.W.2d 349, 354 (Tex. 1987) (op. on reh‘g). Good and workmanlike is ―that

quality of work performed by one who has the knowledge, training, or experience

necessary for the successful practice of a trade . . . performed in a manner

generally considered proficient by those capable of judging [so].‖ Melody Home

Mfg., 741 S.W.2d at 354.

After the house developed a moisture leak during construction, Kramer

sent the Hollmanns an email telling them, ―Please don‘t worry about the leak that

was recently fixed.‖ When the Hollmanns informed Kramer about mold they

discovered shortly after moving in, Kramer told them, ―We feel very strongly we

have now identified the problem. Moisture in the walls by the leak will be

handled immediately and will not pose a future problem. . . . [T]he sills are the

culprit.‖ The next day, Kramer stated, ―You can be sure that any nonsense

associated with the resolution of all open issues will cease as of this moment.‖

Kramer replaced the window sills, but according to Melissa Hollmann, the leaks

remained.

12
 Later that year, Kramer stated in response to an inspector‘s report

regarding an exposed attic gas line, ―I now understand that covering up this line

resulted in the creation of a water leak that now has to be delt with and it will be

handled.‖ Kramer also stated that the house was ―very well built and whatever

minor problems that come up will always be handled.‖ According to Melissa

Hollmann, the problems with the house at the time were not minor. She said,

―We had a roof that was leaking. We had mold on our walls. Our library was torn

up with mold. We had water under windows . . . . It was a mess. It was serious

stuff.‖ She also said that Kramer did not fix the leak.

Twenty-two months later, the Hollmanns discovered additional mold and

moisture problems. In response to the Hollmanns‘ complaints, Kramer claimed

that he found no moisture in the walls but stated that any moisture in the walls

was ―caused by the irrigation system . . . spraying . . . on the house.‖

Homebuilder replaced the suspect sprinkler heads, but the problem remained.

Further, the Hollmanns‘ own investigation found moisture in the walls, contrary to

Kramer‘s claim.

Finally, one month before the Hollmanns vacated the house due to mold

contamination, Kramer stated that ―there is nothing inherently wrong with the

house.‖ Additionally, Kramer claimed that the Hollmanns were ―over-react[ing]‖

and stated that the problems were not serious enough to justify asking

Homebuilder to buy back the house. However, Kramer contradicted this claim in

two letters he wrote to the air conditioning and window subcontractors, in which

13
he acknowledged that the house suffered from ―significant mold, air quality, and

related damage problems.‖ In one letter, Kramer even admitted that ―living in a

home with these conditions probably wouldn‘t be acceptable to anyone under

any conditions.‖ Additionally, the Hollmanns contradicted Kramer‘s claim at trial

with expert reports and testimony showing that the house contained unhealthy

mold levels requiring remediation.

Based on the above, the jury could have reasonably concluded that

Kramer engaged in false, misleading, or deceptive acts or practices that the

Hollmanns relied on to their detriment and that such acts were a producing cause

of damages to the Hollmanns because Kramer represented that goods or

services had or would have characteristics that they did not have or that goods or

services were or would be of a particular quality when they were of another. See

Tex. Bus. & Com. Code Ann. § 17.46. Further, the credible evidence supporting

the finding is not so weak or so contrary to the overwhelming weight of all of the

evidence that the jury‘s answer should be set aside. Therefore, the evidence is

both legally and factually sufficient to support the finding, and we overrule

Homebuilder‘s seventh issue.

C. Limitations

In its ninth issue, Homebuilder argues that the evidence is legally

insufficient to establish that Kramer violated the DTPA because the Hollmanns

failed to sue him within the two-year DTPA statute of limitations. See Tex. Bus.

& Com. Code Ann. § 17.565 (West 2011).

14
 Statute of limitations is an affirmative defense, and a defendant bears the

burden to plead, prove, and secure findings to support the defense. See Tex. R.

Civ. P. 94 (requiring a responding party to plead limitations as an affirmative

defense); see also Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 517 (Tex.

1988) (holding that the affirmative defense of limitations must be proven by the

asserting party). In order to prove that limitations bars a plaintiff‘s cause of

action, a defendant must establish the date on which the plaintiff‘s cause of

action accrued. Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex. App.—

Houston [1st Dist.] 1984, writ ref‘d n.r.e.).

The Hollmanns brought both breach of warranty and DTPA claims against

PK Industries when they intervened in PK Industries‘ lawsuit against Houk in

November 2008. In June 2009, the Hollmanns added Kramer under the same

claims. Although PK Industries pleaded limitations, Kramer, representing himself

pro se, did not. Additionally, neither party asked the jury to determine the date

on which the Hollmanns‘ causes of action accrued or objected when the charge

did not ask this question.

Homebuilder claims that Kramer‘s unpleaded limitations defense was tried

by consent during the suit‘s summary judgment phase. After the Hollmanns

added Kramer to the suit, PK Industries moved for summary judgment, claiming

that the DTPA claim was barred by limitations. PK Industries and the Hollmanns

briefed the issue, and the trial court denied PK Industries‘ motion. Later, Kramer

moved for summary judgment, claiming that the Hollmanns produced no

15
evidence that PK Industries was Kramer‘s alter ego, but he did not raise a

limitations defense. On appeal, Homebuilder argues that PK Industries‘

summary judgment motion served to raise Kramer‘s unpleaded limitations

defense and to try it by consent.

Trial by consent is an exception to the rule requiring adequate pleadings

and occurs when a party allows an unpleaded claim or defense to be tried and

submitted without objecting to the lack of a pleading. Tex. R. Civ. P. 67; Roark v.

Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991); In re A.B.H., 266

S.W.3d 596, 600 (Tex. App.—Fort Worth 2008, no pet.) (op. on reh‘g). An

unpleaded limitations defense may be tried by consent. See Collins v. Collins,

345 S.W.3d 644, 648 (Tex. App.—Dallas 2011, no pet.) (holding that unpleaded

affirmative defenses may be tried by consent). However, trial by consent does

not apply in ―doubtful situation[s],‖ and the record must show that the evidence

was developed under circumstances indicating that both parties understood the

issue was in the case. A.B.H., 266 S.W.3d at 600.

Homebuilder claims that the parties understood limitations was an issue in

the case as to Kramer because the parties briefed it in response to PK Industries‘

motion for summary judgment. However, Kramer and PK Industries are different

parties, and Kramer did not brief the issue during summary judgment

proceedings. Although the Hollmanns responded to PK Industries‘ summary

judgment motion, Kramer never raised a limitations defense, nor was he a party

to PK Industries‘ summary judgment motion. Indeed, the first time the record

16
mentions Kramer in conjunction with PK Industries‘ limitations defense is in

Homebuilder‘s amended motion for a new trial. Further, the only evidence in the

record indicating that Kramer even knew about PK Industries‘ limitations defense

was the fact that the Hollmanns served him with their response to PK Industries‘

motion.5 Therefore, it does not appear that both Kramer and the Hollmanns

understood that the limitations defense for Kramer was an issue in the case, and

we hold that Kramer‘s limitations defense was not tried by consent. See id.

Because Kramer waived this affirmative defense by failing to plead it or otherwise

assert it in the trial court, we overrule Homebuilder‘s ninth issue.

IV. Remaining Issues

We review for an abuse of discretion Homebuilder‘s remaining five issues,

in which it complains about the trial court‘s decisions to (1) sever its claims

against some of the subcontractors from the Hollmanns‘ claims against

Homebuilder, (2) restrict Kramer‘s cross-examination of Deepak Ahuja, the

Hollmanns‘ construction expert, (3) admit Ahuja‘s testimony on repair costs, and

(4) exclude photographs and (5) the construction code book that rebutted Ahuja‘s

testimony. See Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 235 (Tex. 2011)

(stating that a trial court‘s decision to admit or exclude evidence is reviewed for

an abuse of discretion); F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d

680, 693 (Tex. 2007) (applying abuse of discretion standard to severance);

5
PK Industries did not serve a copy of its summary judgment briefs on
Kramer.

17
Austin Rd. Co. v. Ferris, 492 S.W.2d 64, 74 (Tex. Civ. App.—Fort Worth 1974,

writ ref‘d n.r.e.) (stating that the trial court has discretion to manage the scope

and extent of cross-examination).

Homebuilder has failed to preserve several of these issues for our review.

To preserve a complaint for appellate review, a party must have presented to the

trial court a timely request, objection, or motion that states the specific grounds

for the desired ruling, if they are not apparent from the context of the request,

objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid. 103(a)(1). If

a party fails to do this, error is not preserved, and the complaint is waived.

Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh‘g). The objecting

party must get a ruling from the trial court. Tex. R. App. P. 33.1(a)(2), (b). This

ruling can be either express or implied. Id.; Frazier v. Yu, 987 S.W.2d 607, 610

(Tex. App.—Fort Worth 1999, pet. denied).

A. Severance

In its first issue, Homebuilder argues that the trial court abused its

discretion by severing its claims against the subcontractors with whom the

Hollmanns settled before trial at the ―eleventh hour.‖ However, the record does

not reflect that Homebuilder objected to the severance or otherwise sought relief

from the trial court‘s decision to sever. See Tex. R. App. P. 33.1(a); Gammill v.

Fettner, 297 S.W.3d 792, 803 (Tex. App.—Houston [14th Dist.] 2009, no pet.)

(holding that appellants failed to preserve error as to severance complaint when

18
they did not object to the severance in the trial court). Accordingly, Homebuilder

has failed to preserve this issue for review, and we overrule its first issue.

B. Cross-Examination and Cost of Repair

In its second issue, Homebuilder asserts that the trial court abused its

discretion by limiting Kramer‘s cross-examination of Ahuja, and in its third issue,

it argues that the trial court erred by allowing Ahuja to testify regarding the cost to

repair construction defects.

Kramer appeared at trial pro se, and the trial court limited his cross-

examination of Ahuja after warning Kramer as follows:

[Y]our questions are becoming repetitive. You‘re spending a lot of
time formulating your questions and beginning to waste time. So
when we get back from lunch, I‘m going to give you 20 more minutes
to examine this witness, and then you will pass the witness and we‘ll
go to Mr. Green.

When trial resumed, Kramer passed the witness to PK Industries‘ counsel, who

had no questions. The trial court then asked Kramer if he had further questions,

and Kramer responded that he had ―no further questions.‖

When a party is prevented from conducting a complete cross-examination

by the trial court, the party must object, obtain a ruling, and make an offer of

proof as to the evidence excluded by the trial court in order to preserve error for

our review. See Tex. R. App. P. 33.1; Palmer v. Miller Brewing Co., 852 S.W.2d

57, 63 (Tex. App.—Fort Worth 1993, writ denied); see also Gonzalez v.

Gonzalez, No. 13-02-00202-CV, 2003 WL 21674762, at *1 (Tex. App.—Corpus

Christi July 18, 2003, no pet.) (mem. op.) (holding that because appellant failed

19
to object on the basis of preclusion of full cross-examination of the appellee

during trial, he failed to preserve his complaint for appellate review). Because

Kramer failed to object and make an offer of proof and instead affirmatively

represented that he had no further questions to ask, he failed to preserve this

complaint for our review, and we overrule his second issue.

Further, an appellate brief must contain all points or issues relied upon,

argument and authorities under each point or issue, and all facts relied upon for

the appeal with references to the pages in the record where those facts can be

found. Weaver v. Sw. Nat’l Bank, 813 S.W.2d 481, 482 (Tex. 1991); see also

Tex. R. App. P. 38.1(f), (i). Although Homebuilder sets out its third issue

regarding Ahuja‘s testimony on the cost of repairs in the ―Issues Presented‖

section of its brief, it presents no argument, citations to the record, or citations to

authority to support this issue. Therefore, we overrule Homebuilder‘s third issue

for inadequate briefing. See Tex. R. App. P. 38.1(i).

C. Photographs and Code Book

In its fourth and fifth issues, Homebuilder complains that the trial court

erred by admitting into evidence only one photograph showing a space between

the stone veneer and the wood frame structure of the Hollmanns‘ house and by

excluding the rest of its photographs and by excluding a building code book

adopted by the City of Colleyville, where the Hollmanns‘ house was built.

During trial, one of the major issues was the cause of the moisture problem

that led to the development of mold. Several witnesses testified regarding the

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lack of an air gap between the house‘s stone veneer and the wood frame

structure as a potential cause of the problem, and Ahuja, the Hollmanns‘ expert,

testified that the house was improperly constructed with no gap, causing the

moisture problem. While questioning Kramer, PK Industries attempted to

introduce multiple photographs showing a one-inch gap between the stone

veneer and the wood frame structure, but Kramer was able to identify the specific

location depicted by the photographs in only one of the photographs. After two

unrecorded bench conferences, the trial court admitted the only photograph that

Kramer was able to identify and excluded all of the others. PK Industries did not

ask to have the excluded photographs included in the record.

When Kramer offered the code book into evidence, the Hollmanns

successfully objected, arguing that it had not been produced during discovery,

and Kramer failed to respond to their objection. After a recess, PK Industries‘

attorney argued that the code book had been made available during discovery in

response to the Hollmanns‘ request for production, offering his response to the

request as proof, which response stated that the documents were produced

―subject to and without waiving the foregoing objections, none other than as

produced elsewhere.‖ The trial court ruled that PK Industries offered insufficient

evidence to prove that it had produced the code book during discovery. Neither

Kramer nor PK Industries sought to have the excluded code book included for

record purposes during trial. After the case was submitted to the jury, Kramer

moved for the trial court to reopen evidence in order to introduce a City of

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Colleyville ordinance referencing the code book, and the trial court denied the

motion.

If error occurs in the exclusion of evidence, to preserve error, the

complaining party must (1) timely object or move to admit, stating the specific

ground of objection if the specific ground is not apparent from the context and (2)

present a formal bill of exception to the trial court unless the substance of the

excluded evidence was apparent from the context within which the questions

were asked. Tex. R. App. P. 33.2; Tex. R. Evid.103(a)(2). ―Appellate review of

alleged improperly excluded evidence is not possible without a showing of what

evidence would have been presented.‖ Hilliard v. Holland, No. 02-03-00287-CV,

2004 WL 2712159, at *1 (Tex. App.—Fort Worth Nov. 24, 2004, no pet.) (mem.

op.) (citing Wade v. Comm’n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex.

App.—Houston [1st Dist.] 1997, no writ)). The trial court excluded the

photographs following unrecorded bench conferences, and Homebuilder did not

seek to include the photographs in the record, thereby presenting nothing for our

review. See id. Likewise, the trial court excluded the code book, and neither

Kramer nor PK Industries sought to include the code book in the record, thus

presenting nothing for our review. See Tex. R. App. P. 33.2; Tex. R. Evid.

103(a)(2); Hilliard, 2004 WL 2712159, at *1. We overrule Homebuilder‘s fourth

and fifth issues.6

6
Further, the complaint on appeal must be the same as that presented in
the trial court. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). An

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 V. Conclusion

We affirm the trial court‘s judgment.

BOB MCCOY
JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: November 21, 2012

appellate court cannot reverse based on a complaint not raised in the trial court.
Id. Although Homebuilder argues in part of its fifth issue that the trial court erred
by excluding the code book because it was a ―publicly available record‖ and ―was
addressed during depositions,‖ we do not reach these arguments because they
were not made in the trial court. See id.

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