Patrick J. Irwin and Sondra Irwin v. Nortex Foundation Designs, Inc. and Jerry Coffee, P.E. ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-436-CV
PATRICK J. IRWIN AND SONDRA APPELLANTS
IRWIN
V.
NORTEX FOUNDATION DESIGNS, APPELLEES
INC. AND JERRY COFFEE, P.E.
------------
FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
------------
MEMORANDUM OPINION 1
------------
I. INTRODUCTION
The trial court granted summary judgment for Appellees Nortex
Foundation Designs, Inc. and Jerry Coffee, P.E. on the breach of implied
warranty and negligence claims of Appellants Patrick J. Irwin and Sondra Irwin.
1
… See Tex. R. App. P. 47.4.
In four issues, Appellants argue that the trial court improperly granted the final
summary judgment. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
Appellants purchased a home located in Flower Mound from Randy Bollig
Builder, Inc. Bollig constructed the home; Nortex had contracted with Bollig to
design the home’s foundation; and Coffee, a Nortex employee, had stamped the
engineer-designed plans for the home’s foundation on behalf of Nortex. Home
Owners Management Enterprises, Inc. d/b/a Home of Texas and Warranty
Underwriters Insurance Company (collectively “HOME”) issued a homeowner’s
insurance policy on the home. Appellants never had a contract with Appellees.
Appellants moved into the home in April 2002. In August 2006, they
sued Bollig and HOME for alleged construction defects to the home. According
to their third amended petition, the home had “sustained substantial movement
of the foundation systems and footings, load-bearing beams, girders, lintels,
columns, bearing walls, floor framing members[,] and roof framing members”
and had shifted and cracked to such an extent “as to vitally affect the use of
the home for residential purposes.” Appellants averred that these and other
defects in the home constituted “Major Structural Defects.”
In October 2006, the trial court abated the case for arbitration between
Appellants, Bollig, and HOME, and Appellants sued Appellees. The case was
2
eventually reinstated, and Appellants alleged in their third amended petition that
Appellees negligently designed the foundation and breached their “common law
implied warranties that the foundation was designed in a good and workmanlike
manner.” 2
In October 2007, HOME paid Appellants $375,000 to settle Appellants’
claims against them.3 Thereafter, Appellees filed a motion for summary
judgment on Appellants’ breach of implied warranty and negligence claims.
Appellees argued that Texas law does not recognize Appellants’ implied
warranty claim and that Appellants failed to allege the negligence action within
the applicable two-year limitations period. Appellees also sought summary
judgment under the “one satisfaction rule,” arguing that Appellants had been
fully compensated for all of their damages. The trial court granted Appellees’
motion for summary judgment. Appellants filed a motion for new trial, which
was overruled by operation of law, and this appeal followed. See Tex. R. Civ.
P. 329b(c).
2
… This petition omitted Bollig, who filed a “suggestion of bankruptcy”
in May 2007, as a named defendant.
3
… Appellees were not part of the settlement agreement.
3
III. S TANDARD OF R EVIEW
In a summary judgment case, the issue on appeal is whether the movant
met the summary judgment burden by establishing that no genuine issue of
material fact exists and that the movant is entitled to judgment as a matter of
law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,
215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,
678 (Tex. 1979). The burden of proof is on the movant, and all doubts about
the existence of a genuine issue of material fact are resolved against the
movant. Sw. Elec. Power Co., 73 S.W.3d at 215.
When reviewing a summary judgment, we take as true all evidence
favorable to the nonmovant, and we indulge every reasonable inference and
resolve any doubts in the nonmovant’s favor. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant’s
position will not be considered unless it is uncontroverted. Great Am. Reserve
Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).
But we must consider whether reasonable and fair-minded jurors could differ in
their conclusions in light of all of the evidence presented. See Wal-Mart Stores,
Inc. v. Spates, 186 S.W.3d 566, 568 (Tex. 2006); City of Keller v. Wilson, 168
S.W.3d 802, 822–24 (Tex. 2005). The summary judgment will be affirmed
only if the record establishes that the movant has conclusively proved all
4
essential elements of the movant’s cause of action or defense as a matter of
law. Clear Creek Basin Auth., 589 S.W.2d at 678.
IV. IMPLIED W ARRANTY
In their first issue, Appellants argue that the trial court erred by granting
summary judgment on the claim that Appellees breached their common law
warranty that they designed Appellants’ foundation in a good and workmanlike
manner. Appellants acknowledge this court’s opinion in Glenn v. Nortex
Foundation Designs, Inc., which (1) recognized that Texas courts have
consistently held that a property owner may not recover from a subcontractor
with whom the owner had no direct contractual relationship,4 (2) observed that
this court had specifically held that a homeowner’s implied warranty claim
against a subcontractor is barred as a matter of law,5 and (3) held that in a suit
by a homeowner against a licensed structural engineer, it is not an exception
to the rule that a homeowner has no claim for breach of an implied warranty
against a subcontractor “where the structural engineer, who designed the
foundation and applied his engineering seal to the foundation plans, failed to
4
… See J.M. Krupar Constr. Co. v. Rosenberg, 95 S.W.3d 322, 332 (Tex.
App.—Houston [1st Dist.] 2002, no pet.); Raymond v. Rahme, 78 S.W.3d 552,
563 (Tex. App.—Austin 2002, no pet.); Codner v. Arellano, 40 S.W.3d 666,
672–74 (Tex. App.—Austin 2001, no pet.).
5
… See Rayon v. Energy Specialties, Inc., 121 S.W.3d 7, 21 (Tex.
App.—Fort Worth 2002, no pet.).
5
properly design the foundation upon which the future homeowner’s home
would rest.” No. 02-07-00172-CV, 2008 WL 2078510, at *3 (Tex.
App.—Fort Worth May 15, 2008, no pet.) (mem op.).
Nonetheless, and notwithstanding the obvious similarities between the
status of the parties in this case and the parties in Glenn, 6 Appellants argue that
an implied warranty of good workmanship should be imposed in this case
because their remedy against Bollig, the builder of the home, was nullified by
its bankruptcy, thus creating a compelling need for recognizing the warranty
against Appellees. As support for this argument, Appellants rely on language
in Codner, which states that “[a]n implied warranty will not be imposed unless
there is a demonstrated, compelling need for it” and that “[i]t is not necessary
to impose an implied warranty as a matter of public policy if the plaintiff has
other adequate remedies to redress the alleged wrongs committed by the
defendant.” 40 S.W.3d at 672 (citing Rocky Mountain Helicopters, Inc. v.
Lubbock County Hosp. Dist., 987 S.W.2d 50, 53 (Tex. 1998)); see also Trans-
Gulf Corp. v. Performance Aircraft Servs., Inc., 82 S.W.3d 691, 696–97 (Tex.
6
… Appellants are homeowners just like the appellant in Glenn. See 2008
WL 2078510, at *1. And Appellees, an engineering firm and licensed
structural engineer who contracted with the builder of the home—not the
homeowner—to design the home’s foundation, are the same appellees as in
Glenn. See id.
6
App.—Eastland 2002, no pet.) (stating that public policy does not justify
imposing an implied warranty for service transactions in the absence of a
demonstrated, compelling need).
The court of appeals in Codner declined to apply, as a matter of public
policy, an implied warranty between a subcontractor and a homeowner because
the appellant “clearly had adequate remedies to redress the wrongs he
allege[d]” against the subcontractor. 40 S.W.3d at 674. Similarly, in Glenn,
this court declined to apply an implied warranty between the homeowner and
the subcontractor who designed the homeowner’s alleged flawed foundation
in part because the homeowner had recovered via an arbitration award over
$227,000 in damages from the builder of the home and the insurance
company. 2008 WL 2078510, at *1, 3. In this case, Appellants have already
recovered $375,000 as a result of settling their claims against HOME for the
defects to their home. Appellants recovered the $375,000 from HOME
notwithstanding Bollig’s filing a “declaration of bankruptcy.” Thus, like in Glenn
and Codner, Appellants have an “other adequate remed[y] to redress the alleged
wrongs committed by” Appellees. See Codner, 40 S.W.3d at 672.
Appellants contend that their mediation and settlement with HOME was
“not an adequate remedy” because their damages exceed $700,000, excluding
attorneys’ fees and punitive damages, and because they continued to have
7
claims pending against Appellees. But Appellants’ opinion that they are entitled
to recover an amount greater than the $375,000 they recovered from HOME
does not obviate their remedy and recovery against HOME.
Appellants have no compelling need that justifies imposing an implied
warranty in this case in light of their settlement with HOME, an entity with
whom Appellants had a contract. See Rocky Mountain Helicopters, 987
S.W.2d at 53; Glenn, 2008 WL 2078510, at *3. Accordingly, we hold that the
trial court did not err by granting Appellees’ motion for summary judgment on
Appellants’ implied warranty claim. We overrule Appellants’ first issue.
V. N EGLIGENCE
In their second issue, Appellants argue that the trial court erred by
granting summary judgment on their negligence claim. They contend that
Appellees failed to plead the affirmative defense of limitations in their answer
and that there is a genuine issue of material fact regarding when they knew or
should have known that Appellees had allegedly negligently designed their
home’s foundation.
A. No Objection to Limitations Affirmative Defense
Appellees did not plead the affirmative defense of limitations in their
original answer (which is their only answer in the record), but they included the
following bold heading and statement in their motion for summary judgment:
8
V. SUPPLEMENTAL ANSWER AND DISCLOSURES
25. Defendants do hereby supplement their latest answer and all
disclosures with all defensive theories and claims presented in this
motion.
By arguing that Appellees are not entitled to summary judgment on their
limitations affirmative defense because they failed to plead the defense in an
answer, Appellants implicitly contend that the above statement contained in the
motion for summary judgment is insufficient to properly plead the affirmative
defense. See Tex. R. Civ. P. 94. We need not decide whether this statement
is sufficient to plead the affirmative defense of limitations, however, because
Appellants never objected to Appellees’ alleged failure to plead the defense.
An unpleaded affirmative defense may serve as the basis for a summary
judgment when it is raised in the summary judgment motion and the opposing
party does not object in writing to the lack of a rule 94 pleading. Roark v.
Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494–95 (Tex. 1991) (reasoning
that the failure to plead an affirmative defense under rule 94 is an issue that
must be raised in the trial court or it may not be urged on appeal); see
McConnell v. Southside ISD, 858 S.W.2d 337, 341 (Tex. 1993) (“[I]ssues a
nonmovant contends avoid the movant’s entitlement to summary judgment
must be expressly presented by written answer to the motion or by other
written response to the motion and are not expressly presented by mere
9
reference to summary judgment evidence.”); Red Roof Inns, Inc. v. Murat
Holdings, L.L.C., 223 S.W.3d 676, 688 (Tex. App.—Dallas 2007, pet. denied).
If the nonmovant does not object to a variance between the motion for
summary judgment and the movant’s pleadings, it would advance no compelling
interest of the parties or of our legal system to reverse a summary judgment
simply because of a pleading defect. Roark, 813 S.W.2d at 495.
Here, Appellants objected in their response to Appellees’ motion for
summary judgment that Appellees had failed to plead the “one satisfaction rule”
defense in their answer, but they did not object that Appellees had failed to
plead the affirmative defense of limitations. Appellants also argued in their
response that Appellees did not “prove all elements of its [limitations]
affirmative defense,” but this contention challenges the trial court’s ruling on
the merits of the defense, not on the absence of the rule 94 pleading.
Accordingly, because Appellants did not notify the trial court in a written
answer or response objecting that Appellees had failed to include the limitations
affirmative defense in their answer, Appellants’ objection may not be raised for
the first time on appeal. See Roark, 813 S.W.2d at 495; see also McConnell,
858 S.W.2d at 341; Red Roof Inns, Inc., 223 S.W.3d at 688. We overrule this
part of Appellants’ second issue.
10
B. Limitations
Appellees argued in the trial court that summary judgment was properly
granted on Appellants’ negligence action because it was not filed within the
applicable two-year limitations period. They contended that the negligence
action, which was filed in October 2006, accrued—at the latest—in June 2004
because at that time, Appellants had hired a professional engineer to assess
their foundation, received a report detailing the engineer’s opinion about the
foundation, notified Bollig by letter of the report, and requested that Bollig make
numerous repairs to the house.7
The discovery rule defers accrual of a cause of action until the plaintiff
knows or, through the exercise of reasonable diligence, should know of facts
giving rise to the cause of action. Computer Assocs. Int’l, Inc. v. Altai, Inc.,
918 S.W.2d 453, 455 (Tex. 1996). The discovery rule is “a very limited
exception to statutes of limitations” and applies only when the plaintiff’s injury
is both inherently undiscoverable and objectively verifiable. Id. at 455–56. An
injury is inherently undiscoverable if, by its nature, it is unlikely to be discovered
within the prescribed limitations period despite the exercise of due diligence.
Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 734–35 (Tex. 2001). The
7
… Appellants do not dispute that their negligence action is governed by
a two-year statute of limitations.
11
question is not whether the particular injury was actually discovered by the
claimant within the limitations period but whether “it was the type of injury that
generally is discoverable by the exercise of reasonable diligence.” HECI
Exploration Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998).
A defendant who moves for summary judgment on the affirmative
defense of limitations has the burden to conclusively establish the defense,
which includes proving when the cause of action accrued and, if applicable,
negating the discovery rule by proving as a matter of law that there is no
genuine issue of material fact about when the plaintiff discovered or, in the
exercise of reasonable diligence, should have discovered the nature of its injury.
KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746,
748 (Tex. 1999); Dean v. Frank W. Neal & Assocs., Inc., 166 S.W.3d 352,
355–56 (Tex. App.—Fort Worth 2005, no pet.). If the movant establishes that
the statute of limitations bars the action, the nonmovant must then adduce
summary judgment proof raising a fact issue in avoidance of the statute of
limitations. KPMG Peat Marwick, 988 S.W.2d at 748.
Appellees included in their summary judgment evidence a May 31, 2004
report produced by a professional engineer at Appellants’ request. The report
is addressed to Appellants and states, “This report constitutes the engineering
opinion that you requested on the foundation at the referenced address. It
12
provides the professional opinion of the writer . . . .” The engineer who
authored the report made the following “Exterior distress symptoms and
observations” of the home: (1) “stairstep crack in brick and mortar to 1/8
[inch] wide”; (2) “wood to brick separation greater than ½ [inch] wide”; (3)
“crack in perimeter beam to 1/8 [inch] wide”; (4) “trim pulled apart at joints”;
(5) “gap between trim and top brickline”; and (6) “horizontal crack in mortar to
1/16 [inch] wide.” The engineer made the following “Interior Observations”:
(1) “Door at position ‘A’ is slightly off level and low towards the low
elevations”; (2) “Small crack in plaster joint in wall”; (3) “Repaired cracks in
ceiling”; (4) “Window sill is off level”; (5) “Walls lean out”; and (6) “Trim
buckle.”
Also included in Appellees’ summary judgment evidence is a June 11,
2004 letter drafted by Patrick Irwin and addressed to Bollig requesting that
Bollig take the following action: (1) “Adjust piers if needed or foundation
repairs”; (2) “Repair cracks and re-plaster and paint repairs”; (3) “Re-work trim
where needed”; (4) “Align doors in the specified areas”; and (5) “Re-mortar
exterior cracks as well as wing at garage.”
The summary judgment evidence demonstrates that the Appellants’
alleged negligently designed foundation was not inherently undiscoverable in
June 2004. The independent engineer’s report contained numerous details
13
identifying problems related to Appellants’ foundation, and Appellants sent a
letter to Bollig asking it to make foundation-related repairs to the house. To the
extent the summary judgment evidence demonstrates that Appellants had not
already discovered the alleged negligently designed foundation, Appellants could
have discovered the alleged negligently designed foundation by exercising
reasonable diligence with the information contained in the independent
engineer’s report. Appellees thus met their burden to show that in June 2004,
Appellants knew or, through the exercise of reasonable diligence, should have
known of facts giving rise to their negligence action. See KPMG Peat Marwick,
988 S.W.2d at 748; see also Horwood, 58 S.W.3d 732, 734–35.
Appellants respond that a genuine issue of material fact exists as to
whether their negligence action accrued in June 2004 because (1) they were
not aware of any “major structural issues” when the June 2004 letter was
drafted; (2) Bollig indicated that the matters were “cosmetic settling issues”;
(3) the independent engineer stated that they should “let everything settle and
then complete repairs in August [2004]”; and (4) the letter was “just to tell Mr.
Bollig of [their] plan to wait until August, and then [Bollig] should complete
these repairs.” But Appellants’ evidence regarding their subjective
interpretation of the independent engineer’s report is only relevant to whether
they knew of facts giving rise to their negligence action. In light of the
14
information contained in the engineer’s report identifying numerous foundation-
related issues with the home and of Patrick’s letter requesting repairs from
Bollig, Appellants’ evidence does not raise a genuine issue of material fact as
to whether, through the exercise of reasonable diligence, they should have
known in June 2004 about the facts giving rise to their negligence cause of
action. See Altai, Inc., 918 S.W.2d at 455–56.
We hold that Appellants failed to raise a genuine issue of material fact
that the discovery rule tolled the accrual of the applicable two-year statute of
limitations beyond June 2004. Because Appellants did not file their negligence
cause of action until October 2006, months beyond the running of the two-year
limitations period in June 2006, we hold that the trial court did not err by
granting Appellees’ motion for summary judgment on Appellants’ negligence
action. We overrule the remainder of Appellants’ second issue.
Because we have overruled Appellants’ first and second issues, we need
not consider their third issue, complaining that the trial court erred by granting
Appellees’ motion for summary judgment under the “one satisfaction rule.” See
Tex. R. App. P. 47.1.
VI. R EMAINING “C AUSES OF A CTION”
In their fourth issue, Appellants argue that the trial court erred by granting
a final summary judgment because Appellees did not challenge all alleged
15
“causes of action.” They contend that Appellees never challenged their
“actions” for agency/joint enterprise, unconscionable/knowing conduct,
damages, attorneys’ fees, litigation expenses, and mental anguish. According
to Appellants’ third amended petition, the only “causes of action” asserted
against Appellees include negligence and breach of warranties.8 We have
already held above that the trial court did not err by granting Appellees’ motion
for summary judgment on Appellants’ implied breach of warranty and
negligence actions. We overrule Appellants’ fourth issue.
8
… Agency and joint enterprise are theories of vicarious liability, see St.
Joseph Hosp. v. Wolff, 94 S.W.3d 513, 517 (Tex. 2002) and Crooks v. Moses,
138 S.W.3d 629, 637–38 (Tex. App.—Dallas 2004, no pet.); unconscionable
or knowing conduct refers to conduct relevant to a claim for violation of the
Deceptive Trade Practices Act, see Tex. Bus. & Com. Code Ann. § 17.50(a)(3),
(b)(1) (Vernon Supp. 2008); generally, attorneys’ fees or litigation expenses are
not recoverable unless allowed by statute or contract, see McDorman v.
Rogers, No. 09-06-00514-CV, 2008 WL 1970928, at *11 (Tex.
App.—Beaumont May 8, 2008, no pet.) (mem. op.); and even if there was a
fact issue as to when Appellants’ negligence claim accrued, which there is not,
damages for mental anguish are not recoverable in this case, see Glenn, 2008
WL 2078510, at *4 (“Because Glenn’s pleaded negligence cause of action was
for only professional engineering negligence that purportedly caused property
damage to her home, she is, as a matter of law, not entitled to mental anguish
damages . . . .”).
16
VII. C ONCLUSION
Having overruled Appellants’ first, second, and fourth dispositive issues,
we affirm the trial court’s order granting summary judgment in favor of
Appellees.
BILL MEIER
JUSTICE
PANEL: CAYCE, C.J.; DAUPHINOT and MEIER, JJ.
DELIVERED: August 13, 2009
17