Emory Powitzky Jr. v. Tilson Custom Homes, A/K/A Tilson Home Corporation
13-15-00137-CV
| Tex. App. | Oct 29, 2015Background
- In 1982 Powitzky contracted with Tilson to build a custom home; plans required a reinforced concrete slab about 3.5 inches thick; house completed in 1983.
- In 2013, during remodeling, Powitzky discovered the slab was about 1.5 inches thick, cracked and crumbling, and sued Tilson for construction defects.
- Tilson moved for traditional and no-evidence summary judgment asserting the ten-year statute of repose (Tex. Civ. Prac. & Rem. Code §16.009) barred the claims; trial court granted summary judgment without stating the basis.
- Powitzky invoked the §16.009(e)(3) exception for wilful misconduct or fraudulent concealment and submitted his affidavit and an affidavit from contractor Rolando Romo as evidence.
- Tilson objected that the affidavits were conclusory and lacked personal knowledge; the trial court granted summary judgment and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether statute of repose bars suit | Powitzky argued exception for wilful misconduct/fraudulent concealment prevents repose bar | Tilson argued suit filed after 10 years so repose applies | Court: Repose applies; Tilson met burden to show claim outside 10 years |
| Whether Powitzky raised fact issue of Tilson's actual knowledge | Powitzky relied on Romo and his affidavits to show Tilson knew of defect and concealed it | Tilson argued affidavits are conclusory, speculative, not personal knowledge | Court: Plaintiff failed to produce more than a scintilla that Tilson had actual knowledge; affidavits only posited "if" Tilson knew |
| Sufficiency of expert/contractor affidavit to defeat summary judgment | Romo’s affidavit provided opinion on how slab was poured and that a foreman/contractor "knew or should have known" | Tilson argued opinions and statements of "should have known" are insufficient to show actual knowledge | Court: Conclusory statements and hypothetical "if then" opinions do not raise fact issue; summary judgment proper |
| Whether trial court had to state basis of summary-judgment ruling or allow cure of affidavit defects | Powitzky argued court should specify basis and allow cure if affidavits defective | Tilson argued no rule requires stating basis or giving opportunity to cure in summary-judgment context | Court: No requirement to state rationale for summary judgment; did not reach cure argument; affirmed summary judgment |
Key Cases Cited
- Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) (fraudulent concealment and wilful misconduct exceptions to repose require actual knowledge; expert affidavits must provide probative evidence)
- Ford Motor Co. v. Ridgway, 135 S.W.3d 598 (Tex. 2004) (evidence that only raises surmise or suspicion is legally insufficient — mere scintilla is not enough)
- Joe v. Two Thirty Nine J.V., 145 S.W.3d 150 (Tex. 2004) (trial courts are not required to state the basis of summary-judgment rulings)
- Cortina v. P.I. Corp., 385 S.W.3d 613 (Tex. App. — Corpus Christi 2012) (appellate rule: when trial court doesn't specify ground, affirm on any preserved ground with merit)
- Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420 (Tex. 1997) (movant's burden on traditional summary judgment)