File: 060139F - From documents transmitted: 07/12/2007
AFFIRM and Opinion Filed July 12, 2007

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-06-00139-CV

On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-04055-G
Before Justices Morris, Wright, and FitzGerald
Opinion By Justice FitzGerald
        After a trial without a jury, David Hawkins, individually and d/b/a Davis Hawkins Homes, appeals the trial court's judgment against him on Rodrick and Linda Jones's counterclaims. In six issues, Hawkins challenges the legal and factual sufficiency of the evidence to support the Joneses' breach of warranty and DTPA claims, the trial court's rescission award and damage calculation, the admission of certain evidence, and the denials of his motion for continuance and plea in abatement. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. The facts and procedural history of this appeal are known to the parties; we do not relate them in detail here. We affirm the trial court's judgment.         This dispute arose after Hawkins sold a home to the Joneses in an owner-financed transaction. Several closing documents contained the incorrect lot number for the property. After their unsuccessful attempts to correct the title issue, the Joneses stopped paying their mortgage and moved out of the home. Hawkins then sued the Joneses for a declaration that they were liable under the note and deed of trust and for the costs of repairing the property. He also sought a declaration that he had no liability to the Joneses. The Joneses filed a counterclaim alleging breach of warranty, deceptive trade practices, and fraud in a real estate transaction. They sought compensatory, multiple and exemplary damages, as well as rescission of the contract.
        The trial court rendered a take nothing judgment on Hawkins's claims and found in favor of the Joneses on each of their claims. The trial court awarded damages of $10,746.42, additional damages of $10,746.42 and rescinded the contract. Hawkins appeals.
        In his first two issues, Hawkins contends the evidence was legally and factually insufficient to support the Joneses' claims for breach of warranty and DTPA violations. The Joneses respond that Hawkin's failure on appeal to challenge the trial court's conclusion that he violated section 27.01 of the Texas Business and Commerce Code makes it unnecessary to address these issues. They argue we must therefore affirm the trial court's judgment based on the unchallenged ground. We agree.
        On appeal, an appellant must attack all independent grounds that fully support a judgment. Britton v. Tex. Dep't of Crim. Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.). Here, the judgment indicates the trial court ruled in favor of the Joneses not only on their DTPA and breach of warranty claims, but also on their claim for fraud in a real estate transaction pursuant to section 27.01 of the business and commerce code. The trial court's judgment in favor of the Joneses is fully supportable on the section 27.01 claim. Because Hawkins has not challenged the claim based on section 27.01, we must affirm the judgment on this unchallenged ground. See id. Accordingly, we need not address Hawkins's first two issues challenging the alternative grounds for the judgment because any error with respect to these claims would be harmless. See id.
        In his third issue, Hawkins contends the trial court abused its discretion in rescinding the contract between the parties. Hawkins's argument under this issue appears to be premised on the principle that rescission is normally not available when damages for breach of contract are available. However, as noted above, the trial court's judgment was not based solely on the Joneses' breach of warranty claim, but also on their claim for fraud in a real estate transaction. Rescission of a contract is an available remedy when one contracting party is induced to contract by the fraud of the other. Boulle v. Boulle, 160 S.W.3d 167, 176 (Tex. App.-Dallas 2005, pet. denied). Because Hawkins has not shown the trial court abused its discretion in rescinding the contract, we resolve his third issue against him.
        In his fourth issue, Hawkins asserts the trial court erred in calculating damages. Specifically, Hawkins contends the Joneses failed to plead the consequential damages they were awarded, the trial court should have offset the Jones's damage amount with the rental value of the home for sixteen months, and there was no evidence for the trial court's award of $10,746.42 in additional damages. With respect to consequential damages, Hawkins fails to identify which damages he considers consequential. Moreover, his argument only discusses consequential damages as it relates to the Joneses' DTPA claims and ignores the other two causes of action on which the trial court also found in favor of the Joneses. Consequently, Hawkins has not demonstrated that the trial court's damage award was improper. With respect to the other two arguments under this issue, Hawkins has provided no legal authority or discussion to support his contentions. As such, he has waived these complaints for appellate review. See Tex. R. App. P. 33.1 (h). We resolve Hawkins's fourth issue against him.
        In his fifth issue, Hawkins challenges the trial court's admission of evidence on attorney's fees and other evidence that he asserts was not disclosed through written discovery. We review a trial court's evidentiary rulings for an abuse of discretion. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000). Moreover, a successful challenge to an evidentiary ruling requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995).
        In their responses to Hawkins's requests for disclosure, the Joneses indicated that they would be seeking attorney's fees and designated their counsel as an expert witness on attorney's fees. Because upon the disclosure before it, we cannot conclude the trial court abused its discretion in allowing testimony on attorney's fees. If Hawkins considered this response inadequate, he could have moved for a motion to compel under rule 215 of the Texas Rules of Civil Procedure. He did not. Accordingly, the trial court did not abuse its discretion in allowing testimony on attorney's fees.
        The remaining part of the argument under this issue generally complains about evidence admitted that was not disclosed in discovery. However, Hawkins only provides one example involving the testimony of Hawkins's agent, Dee Dee Jeffers. Moreover, Hawkins provides no discussion as to how this testimony probably caused rendition of an improper judgment. Accordingly, he has waived any error with respect to the admission of this evidence. See Tex. R. App. P. 38.1(h).
        In his sixth issue, Hawkins contends the trial court erred in denying his motion for continuance and plea in abatement. We apply an abuse of discretion standard in reviewing both of these rulings. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 151 (Tex. 2004) (motion for continuance); Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988) (plea in abatement).
        Hawkins's motion for continuance was filed six days before the scheduled trial date and was based on his desire to file foreclosure proceedings against the Joneses for their default on the note. The Joneses' default occurred nine months earlier. We conclude the trial court's denial of Hawkins's request on the eve of trial for additional time to institute proceedings that could have been filed nine months earlier was not an abuse of discretion. Likewise, Hawkins's plea in abatement, also filed six days before trial, was untimely filed. See Tex. Bus. & Com. Code Ann. 17.505(c) (Vernon 2002) Accordingly, the trial court's denial of the plea was not error.
        We affirm the trial court's judgment.

                                                          KERRY P. FITZGERALD




File Date[07/12/2007]
File Name[060139F]
File Locator[07/12/2007-060139F]