338 S.W.3d 615
Tex. App.2011Background
- All Metals Fabricating, Inc. sues Foster General Contracting, Inc. for breach of contract, breach of express warranty, and breach of implied warranty related to a building constructed in Allen, Texas.
- All Metals alleges foundational soil instability caused wall and floor cracking and equipment recalibration costs since 2000.
- The contract is the Standard Form of Agreement Between Owner and Construction Manager where the Construction Manager is also the Constructor, naming BEBDT-Realty, Ltd as Owner and Foster as Construction Manager; the contract’s signature by BEBDT is blank.
- Foster moved for summary judgment twice (Nov 8, 2005 and Jan 4, 2007), arguing it had no duty to ensure subcontractor performance and that All Metals lacked contract-related standing and proper warranties.
- All Metals offered evidence including Thrailkill’s affidavit asserting BEBDT assigned BEBDT’s claims to All Metals; Foster objected to the assignment and later submitted late evidence regarding assumed-name status; the trial court denied some objections but granted summary judgment on all claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether All Metals was a party to the contract | Thrailkill affidavit shows assignment to All Metals; evidence supports contract existence. | BEBDT, not All Metals, is the contract party; contract signature lacking; All Metals dissolved precludes standing. | Genuine fact issues exist; remand to resolve contract-party status. |
| Whether Foster breached the contract or an express warranty | Contract and AIA provisions impose duties beyond a bare construction manager; evidence of breach via site/work defects. | Construction Manager duties are limited; no breach given standard of care and roles; no express warranty. | There is a fact issue whether Foster breached contract and any express warranty. |
| Whether Foster breached an implied warranty | Implied warranty of good and workmanlike performance may arise in commercial construction. | No implied warranty applies; privity/reliance obstacles and policy reasons negate it here. | Summary judgment affirmed on implied warranty claim. |
| Whether Foster was properly challenged on late-filed evidence in the reply | No grounds bar Late-filed evidence should be considered; objections were adjudicated. | New grounds for summary judgment in a reply are improper and should not be considered as independent grounds. | Court sustained All Metals's challenge to relying on new grounds raised in Foster's reply. |
Key Cases Cited
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex. 1985) (traditional summary judgment standard; burden on movant; shifted to nonmovant)
- Gen. Mills Rests., Inc. v. Texas Wings, Inc., 12 S.W.3d 827 (Tex.App.-Dallas 2000) (no-evidence standard for summary judgments)
- Ramer Concrete, Inc. v. All Metals Fabricating, Inc., 338 S.W.3d 557 (Tex.App.-El Paso 2009) (assignment of owner's claims can negate summary judgment defenses)
- Anthony Equipment Corp. v. Irwin Steel Erectors, Inc., 115 S.W.3d 191 (Tex.App.-Dallas 2003) (implied warranties for commercial construction; public policy considerations)
- Ogden v. Dickinson State Bank, 662 S.W.2d 330 (Tex. 1983) (harmonization of conflicting contract provisions when possible)
- Coker v. Coker, 650 S.W.2d 391 (Tex. 1983) (interpretation of contract terms; harmonization of provisions)
- Sanders v. Capitol Area Council, 930 S.W.2d 905 (Tex.App.-Austin 1996) (no new independent grounds in a reply to preserve Rule 166a(c) notice requirements)
- Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41 (Tex. 1965) (evaluates admissibility of evidence in summary judgment context)