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Fitzgerald v. Water Rock Outdoors, LLC

Court of Appeals of Texas, Seventh District, Amarillo

December 1, 2017

TIMOTHY FITZGERALD AND WYNNE A. FITZGERALD, APPELLANTS
v.
WATER ROCK OUTDOORS, LLC D/B/A ARTISAN HOMES, GRANT WILSON, AND INGRAM CONCRETE, LLC, APPELLEES

         On Appeal from the 237th District Court Lubbock County, Texas Trial Court No. 2015-514, 158, Honorable Les Hatch, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          OPINION

          Judy C. Parker Justice

         Appellants, Timothy and Wynne Fitzgerald, appeal the trial court's grant of partial summary judgment and its final judgment in their suit against appellees, Water Rock Outdoors, LLC d/b/a Artisan Homes; Grant Wilson; and Ingram Concrete, LLC. We will affirm the trial court's judgments.

          Factual and Procedural Background

         In 2013, Artisan Homes began construction on a new home at 3805 101st Street in Lubbock, Texas. Prior to completion, the Fitzgeralds decided to buy the home and entered into a residential construction contract with Artisan. The Fitzgeralds asked to move into the home before its contractual completion date. After the Fitzgeralds moved into the home, they notified Artisan that there were a number of defects in the home that needed repair. Artisan repaired some of these items but the Fitzgeralds were not satisfied with the repairs. Artisan continued to offer to repair the defects but the Fitzgeralds denied Artisan further opportunities to do so.

         In January of 2015, the Fitzgeralds filed suit against Artisan and its owner, Grant Wilson, asserting claims for breach of contract, breach of implied warranty, breach of express warranty, breach of implied warranty of good workmanship, fraud in the inducement, common law fraud, and unjust enrichment. Subsequently, the Fitzgeralds amended their petition to add claims of negligence against Ingram relating to its supply of concrete used in construction of the home. After filing answers, Artisan and Wilson filed a motion for partial summary judgment asserting traditional and no-evidence grounds. In December of 2015, the trial court granted the motion and dismissed the Fitzgeralds' claims for common law fraud, fraud in the inducement, and unjust enrichment with prejudice.[1]

         In preparing their case, the Fitzgeralds retained Phillip King to testify as an expert regarding the defects in the home and the resultant damage. King prepared a written report in which he concluded that a failure to install reinforcing steel in the home's foundation violated Lubbock construction ordinances and necessitated that the home be demolished and rebuilt. Artisan filed a motion to exclude King's opinion testimony. A hearing was held on the motion. At this hearing, Artisan offered the testimony of Steven O'Neal, Chief Building Inspector for the City of Lubbock. O'Neal testified that the Lubbock ordinance relied on by King did not require continuous steel reinforcement in residential construction. At the close of the hearing, the trial court concluded that King's opinion was not reliable and excluded it from being offered at trial.

         Five days before trial was scheduled to commence, the Fitzgeralds moved for and were granted a continuance to supplement King's theory of damages. After reviewing King's supplemental opinion, Artisan and Ingram filed a joint motion to strike portions of King's supplemental expert testimony. By letter ruling, the trial court granted the motion to strike on the basis that King's supplemental opinion constituted a new theory of liability. However, the trial court expressly stated that King's supplemental opinion could be used as rebuttal evidence.

         In July of 2016, the Fitzgeralds' remaining claims were presented to a jury. The jury returned its verdict finding that Artisan did not breach the contract or its express warranties. The jury did find that Artisan breached the implied warranty of performing services in a good and workmanlike manner and awarded the Fitzgeralds $32, 250 as damages for this breach. The jury also found that Ingram was not negligent. The trial court entered its final judgment in conformity with the jury's verdict. The Fitzgeralds timely appealed.

          The Fitzgeralds present three issues by their appeal. Their first issue contends that the trial court erred in determining that King's opinion that the home needed to be demolished and rebuilt was unreliable. Their second issue contends that the trial court erred in granting Artisan and Wilson's motion for partial summary judgment. Their third issue contends that the trial court erred by striking King's supplemental opinion. We will address the propriety of the trial court's grant of partial summary judgment first.

         Partial Summary Judgment

         By their second issue, the Fitzgeralds contend that the trial court erred in granting summary judgment in favor of Artisan and Wilson on the claims of common law fraud, fraud in the inducement, and unjust enrichment.

         A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard of review. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). The party moving for a no-evidence summary judgment must assert that there is no evidence of one or more of the essential elements of the claim on which the nonmovant would have the burden of proof at trial. Tex.R.Civ.P. 166a(i); Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). The nonmovant must respond with evidence sufficient to raise a material fact issue as to the challenged elements of its cause of action. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). If the nonmovant fails to produce summary judgment evidence raising a genuine issue of material fact on the challenged elements, the trial court must grant the motion. Hamilton, 249 S.W.3d at 426. The nonmovant need not prove the challenged elements; rather, its response must only raise a fact issue as to those elements. Id. In determining whether the nonmovant has met its burden, we view the evidence in the light most favorable ...


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