This is a Deceptive Trade Practices-Consumer Protection Act (DTPA) case arising out of the construction of a new home. Thomas Kennemore and wife Charla Ken-nemore contracted for builder Bill Bennett to construct a home. After the Kenne-mores took possession of the home, Bennett brought suit seeking injunctive relief, judicial foreclosure of a mechanic’s lien and recovery of the contract price. The Kenne-mores counterclaimеd under the DTPA, alleging that the builder failed to construct the house in a good and workmanlike manner. The Kennemores eventually paid the amounts demanded by Bennett, extinguishing his original action for injunction and foreclosure. Proceeding to trial on the DTPA counterclaim, the trial court directed a verdict for Bennett on grounds that the Kennemores waived their claims that the house contained defects and were thereby estopped from asserting either a contractual or DTPA action. The court of appeals affirmed.
The Kennemores contracted for Bennett to build a home on рroperty owned by the Kennemores in Dallas County. After construction commenced, the Kennemores executed a mechanic’s lien contract in favor of Bennett. Upon completion, but prior to closing, the Kennemorеs moved into the house and changed the exterior locks. Bennett demanded payment of the contract price plus “extras” totalling $4,542.55. The Kennemores initially refused to close the transaction because of alleged dеfects, variances from the plans and specifications and a dispute over the charge for “extras.”
After Bennett initiated an action for in-junctive relief, judicial foreclosure of the mechanic’s lien, and contractuаl damages, the Kennemores paid the amounts demanded by Bennett. Nevertheless, the parties proceeded to trial on the Kennemores’ counterclaim for DTPA violations. Specifically, the Kennemores complain of numerous defects that allegedly constitute a misrepresentation under section 17.46(b)(7) and a breach of an implied warranty that the home would be built in a good and workmanlike manner. Tex.Bus & Com.Code Ann. §§ 17.46(b)(7), 17.50(a)(2) (Vernon 1987). The Kennemores also complained of Bennett’s false representations regarding supervision and inspection of work performed as an unconscionable action or course of action under section 17.50(a)(3).
After the close of the Kennemores’ evidence, the trial court granted Bennett’s motion for directed verdict and rendered judgment that the Kennemores take nothing. In granting the motion in its entirety, the trial court predicated its judgment on grounds that the Kennemores waived any сomplaint of defects, or complaint that the house was not built in a good and workmanlike manner, and were thereby es-topped from asserting such claims. In affirming, the court of appeals concluded that by taking possession of the home and paying Bennett’s demands, the Kenne-mores fully accepted Bennett’s performance. The court of appeals therefore held that the Kennemores were estopped from seeking contractuаl relief and had waived any complaint that the work varied from the plans and specifications.
Although the court of appeals provides an accurate synopsis of cases advancing waiver and estoppel theories,
id.,
these cases involved contract actions.
See Anderson Development Corp. v. Coastal States Crude Gathering Co.,
The motion urges a waiver and estoppel theory as well as complaints of factually and legally insufficient evidence. Bennett maintains that the Kennemores waived all complaints regarding the alleged defects and are therefore estopped from asserting any claim for defects, including the claims under the DTPA. We disagree. The remedies under the Act are available to any consumer, and they are not waived merely because the consumer accepts the allegedly defective performance. Nothing in the language or policy of the Act requires the cоnsumers to withhold performance themselves in order to allege violations against the other party. Such a policy would discourage the resolution of disputes and the settlement of claims without any corresponding benefits. In the аbsence of an express settlement or other express waiver, therefore, the Kennemores had every right to proceed with their case. The court of appeals accordingly erred in affirming the trial court’s directеd verdict on grounds of estoppel based on waiver. We must now determine if the directed verdict is otherwise supportable under alternative evidentiary grounds.
Viewing the evidence in a light most favorable to the Kennemores as nonmоv-ants,
Corbin v. Safeway Stores, Inc.,
To establish a breach of the implied warranty that the home would be constructed in a good and workmanlike manner, the Kennemores must show that Bennett failed to construct the home in a manner generally considered proficient by those capable of judging such work.
Melody Home Mfg. Co. v. Barnes,
The Kennemores’ final contention complains that Bennett’s failure to supervise his subcontractors constituted an unconscionable act or course of action under section 17.50(a)(3). The record reflects testimony that while the house was under construction, the Kennemores continually pointed out defects and variances and that they were each time reassured by Bennett that he would speak with his responsible subcontractor. The defects and variances were never corrected and Bennett has refused to repair or in any way satisfy these complaints.
An act or practice must fit within the definition set forth in section 17.45(5) to be considered unconscionable under section 17.50(a)(3). Section 17.45(5) describes such an act which, to a person’s detriment:
(A) takes advantage of the lack of knowledge, ability, experience, or capacity of a person to a grossly unfair degree; or
(B) results in a gross disparity between the value received and consideration paid in a transaction involving transfer of consideration.
Tex.Bus & Com.Code Ann. § 17.45(5) (Vernon 1987). To avoid a directed verdiсt, the Kennemores need only produce some evidence under either definition of unconscion-ability.
See Brown v. Galleria Area Ford, Inc.
By submitting a competitive bid on the Kennemores’ house, Bennett undertook the construction to the exclusion of other qualified builders. Testimony regarding Bennett’s false representations that hе would personally oversee the work, his continued reassurances that he would discuss the defects and variances with his subcontractors and his flagrant failure to correct the problems was some evidence that Bennett took advantage of the Kennemores’ lack of knowledge of the construction business and lack of ability to correct the problems themselves. Such action is evidence upon which the jury could find an unconscionable act or сourse of action as defined under section 17.45(5)(A). Having found some evidence under section 17.45(5)(A), there is no need to consider whether any evidence exists under the alternative definition. Because there is legally sufficient evidencе in support of the DTPA claims raised by the Kennemores, the court of appeals erred in affirming tihe directed verdict in favor of Bennett.
The judgment of the court of appeals is reversed and this cause is remanded to the trial cоurt for a trial on the merits.
Notes
. The record contains an extensive list of problems with the home about which the Kenne-mores had voiced continual complaints. Major problems include: every door and window leaks when it rains causing damage to carpet, doors and interior walls; improperly installed mason-ite siding has buckled and cracked; plumbing pipes were not adequately anchored, causing the entire house to vibrate any time water is turned on; the pipes have frozen and burst every winter; shingles frequently blow off the roof, causing the ceiling to leak; each time it rains the entire front yard and walkway are completely under water, causing the water to drain back into the house; the conсrete driveway has cracked and large portions have actually broken off; the chimney, fireplace and other brickwork were substantially different from the plans; shower stall doors are oversized by ten inches; doors installed in the living room do not match paneling as called for in the plans; no door connects the garage to the back yard as specified in the plans.