Emory Powitzky Jr. v. Tilson Custom Homes, A/K/A Tilson Home Corporation
13-15-00137-CV
| Tex. App. | Jun 11, 2015Background
- Plaintiff Emory Powitzky sued Tilson Custom Homes claiming construction defects in a residence built circa 1983; the suit was filed more than 30 years after construction.
- Defendant moved for summary judgment asserting the ten-year statute of repose in Tex. Civ. Prac. & Rem. Code § 16.009 bars the claims.
- Plaintiff relied on the §16.009(e)(3) exception for willful misconduct or fraudulent concealment to avoid repose, submitting two affidavits (Rolando Romo, a contractor, and Emory Powitzky).
- Trial court granted summary judgment for Tilson; plaintiff appealed arguing (1) the affidavits raised fact issues on willful misconduct/fraudulent concealment, (2) the trial court erred by not explaining its ruling, and (3) the court should have allowed curing of alleged evidentiary defects.
- Appellee argues the affidavits are conclusory and fail to show actual knowledge required by Ryland; also contends there is no legal duty for a trial court to state reasons for granting summary judgment and no reversible error on evidentiary objections.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiff raised fact issue that Tilson engaged in willful misconduct or fraudulent concealment to defeat §16.009 repose | Powitzky says affidavits show concealment/willful misconduct as exception to repose | Tilson says affidavits are conclusory, lack evidence of actual knowledge and thus fail under Ryland | Court found affidavits insufficient; no proof Tilson had actual knowledge, summary judgment proper |
| Sufficiency of Romo affidavit (contractor opinion on concrete depth/knowledge) | Romo’s statements create factual dispute about concrete thickness and foreman knowledge | Tilson: Romo uses speculation, ‘‘knew or should have known,’’ and references current slab condition not original 1983 condition | Court treated Romo affidavit as conclusory and inadequate to show actual knowledge or willful misconduct |
| Sufficiency of Powitzky affidavit (owner’s recollection/assurances from foreman) | Powitzky testifies foreman assured work met plans, implying concealment | Tilson: Powitzky did not observe pour, offers no evidence of Tilson’s knowledge at time of pouring | Court held Powitzky’s affidavit does not supply actual-knowledge evidence; insufficient to avoid repose |
| Whether trial court had to explain reasons for granting summary judgment or allow cure of evidentiary defects | Plaintiff contends court should state reasons and afford chance to cure affidavit defects | Tilson argues no rule requires courts to explain grant of summary judgment; substantive evidentiary defects can be raised on appeal | Court was under no obligation to explain ruling; absence of explanation does not create reversible error; objections to substantive defects may be raised on appeal |
Key Cases Cited
- The Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) (affidavits must show actual knowledge to establish willful misconduct/fraudulent concealment exception to repose)
- In re Toyota Motor Sales U.S.A. Inc., 407 S.W.3d 746 (Tex. 2013) (addressed motion for new trial; not controlling for summary-judgment explanation requirement)
- Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623 (Tex. 1996) (absence of stated reasons means appellate review may consider all grounds presented)
- Simmons v. Healthcare Ctrs. of Tex., Inc., 55 S.W.3d 674 (Tex. App.—Texarkana 2001) (discussion of appellate review when trial court does not state reasons)
- Strather v. Dolgencorp of Texas, 96 S.W.3d 420 (Tex. App.—Texarkana 2002) (noting no legal duty for trial courts to explain summary-judgment rulings)