Gary Jones and Carolyn Jones v. Pesak Brothers Construction, Inc.
416 S.W.3d 618
| Tex. App. | 2013Background
- Gary and Carolyn Jones contracted with Pesak Brothers to build a house in 2006; the written construction agreement did not mention final grading and the parties negotiated some work and costs during construction.
- The Joneses arranged for hardscaping (driveway, patio, sidewalks) via a third party and Mr. Jones performed some contouring himself; Pesak testified it offered to perform grading at the contract’s cost-plus rate but the Joneses declined.
- After moving in, the house developed cracking, sticking doors/windows, and slab heaving; engineer and TRCC inspector reports attributed the damage to improper grading/drainage around the foundation.
- Pesak sent a TRCC-response letter offering to perform specified repairs (including regrading the west side to a 5% slope); the Joneses sued before accepting the offer and sought damages under breach of contract, express and implied warranties, negligence, and the DTPA (including claims for Mr. Jones’s heart attack).
- At trial the jury returned a take-nothing verdict for the Joneses; the trial court denied submission of a separate negligence claim and struck a late amended petition. The court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether TRCC inspector report conclusively established breach of contract/warranty | TRCC report creates presumption establishing defect and shifts burden, entitling Joneses to judgment as a matter of law | The presumption establishes a defect but not Pesak’s contractual liability; Joneses still must prove Pesak assumed grading responsibility | Court: No conclusive liability; presumption does not eliminate Joneses’ burden to prove Pesak had duty to grade |
| Factual sufficiency of evidence that Pesak was responsible for improper grading and resulting damage | Evidence (inspector, engineers, Jones’s testimony, Pesak’s repair offer) shows Pesak liable | Evidence that Joneses declined Pesak’s offer, signs they assumed grading, conflicting testimony — jury could credit Pesak | Court: Jury verdict supported; evidence not against great weight and preponderance |
| Whether negligence/voluntary-undertaking claim should have been submitted | Negligent construction and site-selection caused damages and heart attack; Scharrenbeck supports tort recovery where conduct causes harm beyond contract | Duty arose only from the contract; no independent legal duty or separate injury beyond economic loss; no proof of increased risk from a separate undertaking | Court: Trial court correctly refused negligence submission — no independent duty or separate tort shown |
| Evidentiary rulings and striking of late amended petition | Excluded cardiologist causation testimony and Jones’s notes; admitted defendant expert testimony; denied late amendment | Exclusion proper because negligence causation irrelevant given contract-based duties; opposing expert qualifications adequate; amendment filed <7 days before trial without leave | Court: No abuse of discretion in evidentiary rulings or refusing late sixth amended petition |
Key Cases Cited
- Dow Chem. Co. v. Francis, 46 S.W.3d 237 (Tex. 2001) (standard for legal and factual sufficiency challenges)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (jury credibility and sufficiency review principles)
- Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986) (economic-loss principle limiting tort recovery for construction defects)
- Montgomery Ward & Co. v. Scharrenbeck, 204 S.W.2d 508 (Tex. 1947) (older authority allowing tort recovery where negligent performance caused harm beyond contract)
- Formosa Plastics Corp. v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41 (Tex. 1998) (distinguishing contract vs. tort duties)
- Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (elements for negligent undertaking liability)
- Centex Homes v. Buecher, 95 S.W.3d 266 (Tex. 2002) (scope of implied warranty and disclaimer principles)