Court of Appeals of Texas, Seventh District, Amarillo
On Appeal from the 169th District Court Bell County, Texas Trial Court No. 239, 013-C; Honorable Gordon Adams, Presiding
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Patrick A. Pirtle, Justice
Appellants, Gabriel and Elisabeth Barocio, appeal the entry of a take-nothing judgment following the granting of a "no evidence" summary judgment in favor of Appellees, General Electric Company and Randy Britt d/b/a Britt Heating & Air, on the Barocios' claim under the Deceptive Trade Practices Act for breach of implied warranty. We affirm.
In early 2003, the Barocios began building a new house in Bell County, Texas. In May, they purchased a heating and air conditioning system (hereinafter, simply the "system") from Britt Heating & Air containing a blower motor manufactured by General Electric. Britt installed the system but did not connect it to the house's electrical wiring. Leon Brown was hired to do the electrical work for the Barocios' house and installed all the electrical wiring. In December of 2003, Britt started the system and the Barocios moved into their house. Shortly thereafter, Britt returned to adjust the system's thermostat. From January 2004 until December 2008, the Barocios did not experience any problems with the system.
In late December 2008, Elisabeth noticed the house lights flickered and dimmed when the system was activated. No one was called to check the house's wiring or the system. On New Year's Eve, Elisabeth heard the system activate and saw the lights flicker. She then heard a loud pop. Approximately ten minutes later, she walked out the back door and heard a sizzling sound. When she looked up, she saw the roof was afire. The fire department was called, the fire was extinguished, and the roof collapsed.
Bell County's Fire Marshal, Steve Casey, arrived after the system had been removed from the attic area and hauled off—all that remained was the system's blower motor. When he checked the house's breaker box to see if a short in the system had tripped a breaker, he could not tell whether the breaker had been tripped because all breakers had been turned off before he arrived. On January 6, 2009, Casey issued a report indicating the fire's point of origin was the "[h]eating unit" and the ignition source was "[e]lectrical." His report concluded the fire's cause was a "[m]alfunctioning ac/heating fan motor." He noted the heating unit's electric motor "was frozen and heavily charred, indicating to [him] that the electric motor had malfunctioned shorted out and caught fire. This intern [sic] caught the house on fire in the roof area."
Elisabeth's sister, Elsie, was also building a house at the same time the Barocios were building their house. Both used Leon Brown to wire their houses. After the fire, Gabriel learned Elsie's wiring was redone because the wire used by Brown was not the proper size.
In March 2009, the Barocios filed their Original Petition against Rheem Manufacturing Company and Britt alleging an action, among others, under the Deceptive Trade Practices Act for breach of implied warranty. In December 2010, the Barocios filed their First Amended Petition and, in February 2011, filed their Second Amended Petition. In September 2011, Britt filed its Motion For Leave To Designate A Responsible Third Party seeking to designate General Electric, manufacturer of the blower motor, as a responsible third party. In October, the Barocios filed their Third Amended Petition seeking to add General Electric as a third-party defendant and adopting Britt's claims and allegations against General Electric. In March 2012, the Barocios filed their Fourth Amended Petition stating they "did not give General Electric notice of the product defect prior to naming [General Electric] as a party to [the] lawsuit."
In 2012, General Electric and Britt filed no-evidence motions for summary judgment. After a hearing, on May 25, 2012, the trial court granted each motion and issued a take-nothing judgment in favor of General Electric and Britt. This appeal followed.
By three issues, the Barocios assert the trial court erred by granting Britt's and General Electric's motions because there was more than a scintilla of evidence establishing a genuine issue of material fact that (1) General Electric's blower motor was defective when it left General Electric's or Britt's possession and (2) that defect was a producing cause of the fire that destroyed the Barocios' home. The Barocios further contend the trial court erred in finding (3) they were required to give General Electric notice ...