Childress Engineering Services, Inc. v. Nationwide Mutual Insurance Company, as Subrogee to Meritage Homes of Texas, L.L.C.
02-17-00109-CV
| Tex. App. | Dec 7, 2017Background
- Plaintiff Nationwide, as subrogee to Meritage, sued subcontractor Childress to recover $150,000 Meritage paid in settlement to a homebuyer (Kirk) for alleged defective foundation work designed by Childress.
- Kirk sued Meritage in 2011; Meritage settled for $150,000. Nationwide then filed this subrogation suit in 2013 against Childress (and Tealstone, who later settled).
- Nationwide’s theory relied on enforcing an October 29, 2002 subcontract (the “October 2002 Contract”) purporting to obligate Childress to indemnify Meritage.
- The October 2002 Contract in the summary-judgment record named a different entity (Legacy/Monterey Homes, dba Legacy Homes and MTH Homes—Texas, dba Hammonds Homes), not Meritage, and omitted an Exhibit A that defined the subcontract scope.
- The trial court struck Nationwide’s initial copy of the contract for evidentiary reasons, but later overruled objections, granted Nationwide summary judgment, and entered final judgment for Nationwide.
- On appeal the court focused on whether Nationwide conclusively proved (1) Meritage was a party to the subcontract and (2) the subcontract covered the foundation work on the Kirk home; the court found Nationwide failed to do so and reversed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Meritage was a party to the October 2002 Contract | Nationwide: the October 2002 Contract was Meritage’s subcontract and binds Childress | Childress: contract names Legacy, not Meritage; no record evidence linking Legacy to Meritage | Court: Nationwide failed to conclusively show Meritage was a party; genuine issue exists — reversal |
| Whether the contract’s scope covered the Kirk home foundation work | Nationwide: contract (and indemnity clause) applied to Childress’s design work on Kirk home | Childress: Exhibit A (defining scope) is missing; no proof the contract covered Kirk home | Court: Scope was undefined in record without Exhibit A; Nationwide did not conclusively prove coverage — reversal |
| Admissibility/weight of the October 2002 Contract | Nationwide: contract is authentic and not hearsay | Childress: contract is hearsay and not properly authenticated; objections sustained earlier | Court: trial court erred in relying conclusively on the contract absent linkage/authentication; summary judgment not supported |
| Whether summary judgment burden was met | Nationwide: established entitlement to judgment as matter of law by proving essential elements | Childress: material fact issues remain (party identity and scope) | Court: Nationwide did not meet summary judgment burden; judgment reversed |
Key Cases Cited
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (summary-judgment burden and review standard)
- Travelers Ins. Co. v. Joachim, 315 S.W.3d 860 (Tex. 2010) (de novo review of summary judgment)
- 20801, Inc. v. Parker, 249 S.W.3d 392 (Tex. 2008) (courts view evidence in light most favorable to nonmovant)
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (indulge every reasonable inference for nonmovant)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (consider whether reasonable jurors could differ)
- MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986) (plaintiff must conclusively prove all essential elements for summary judgment)