Hennen v. McGinty
335 S.W.3d 642
Tex. App.2011Background
- Hennen contracted with Villas By Design, Inc. (VBD) to build a residence on a vacant lot; McGinty signed on behalf of VBD.
- After moving in (Nov. 2002), Hennen experienced extensive water intrusion and mold, with numerous leaks documented in communications to VBD.
- Hennen warned of impending legal action in June 2003 and later retained counsel; in January 2007 an expert estimated the cost to repair at $651,230.72.
- Suit was filed June 22, 2005, asserting breach of contract, DTPA violations, and breach of express/implied warranties; jury found damages on several theories.
- Trial court granted partial JNOV, limiting damages and dismissing certain claims; final judgment awarded $651,230.72 against VBD only, plus no attorney’s fees.
- On appeal, Hennen challenged the judgment for failure to add prejudgment interest and attorney’s fees, and whether limitations barred some claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prejudgment interest must be awarded | Hennen seeks prejudgment interest as a matter of course on property-damage damages. | VBD/McGinty contend no prejudgment interest was awarded in the final judgment. | Reversed; prejudgment interest must be included |
| Entitlement to attorney's fees in final judgment | Reasonable and necessary fees ($175,000 prep/trial, $15,000 appeal, $10,000 potential Supreme Court appeal) should be awarded. | Failure to award attorney's fees was harmless error. | Reversed; include reasonable attorney's fees |
| Are negligence and DTPA claims barred by limitations? | Discovery-rule may postpone accrual for certain claims. | Accrual occurred by June 20, 2003, making suit within two years improper. | Barred by limitations; JNOV proper |
| McGinty liable for breach of warranties | McGinty breached express and implied warranties; trial court should enter judgment against him. | No evidence McGinty sold services or provided warranties; some warranty claims were improperly submitted. | Partial reversal; no damages against McGinty for express/implied warranty due to pleading/ evidentiary issues, but other rulings preserved |
Key Cases Cited
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard of review and sufficiency guidance)
- Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (evidence of reasonableness requires independent proof beyond mere cost quotes)
- Dallas Ry. & Terminal Co. v. Gossett, 294 S.W.2d 377 (Tex. 1956) (proof of reasonableness and damages standards)
- O & B Farms, Inc. v. Black, 300 S.W.3d 418 (Tex. App.-Hou. [14th Dist.] 2009) (evidence sufficiency for damages and reasonableness)
- Brighton Homes, Inc. v. McAdams, 737 S.W.2d 340 (Tex. App.-Houston [14th Dist.] 1987) (proper measure of damages when repairs are feasible)
- Porras v. Craig, 675 S.W.2d 503 (Tex. 1984) (homeowner valuation testimony admissible; market value considerations)
- Hernandez v. Lautensack, 201 S.W.3d 771 (Tex. App.-Fort Worth 2006) (evidence sufficiency for reasonableness of repair costs; comparative pricing)
- Cordova v. Southwestern Bell Yellow Pages, Inc., 148 S.W.3d 441 (Tex. App.-El Paso 2004) (fees and contract damages standards)
- S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996) (discovery rule governing limitations)
- KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746 (Tex. 1999) (limitations and accrual principles)
- Brighton Homes, Inc. v. McAdams, 737 S.W.2d 340 (Tex. App.-Houston [14th Dist.] 1987) (continuing-damage damages rule for repair costs)
- Allright, Inc. v. Lowe, 500 S.W.2d 190 (Tex. App.-Houston [14th Dist.] 1973) (evidence sufficiency standards for damages)
- Ebby Halliday Real Estate, Inc. v. Murnan, 916 S.W.2d 585 (Tex. App.-Fort Worth 1996) (damages and evidentiary considerations)