By Nate D. French and Mari Bryn Dowdy, Segal McCambridge Singer & Mahoney
This this construction defect case—on appeal from the 102nd District Court, Bowie County, Texas—Pleasant Grove Independent School District (“Pleasant Grove”) sued its general contractor, Altech, Inc. (“Altech”), for breach of warranty and the field manufacturer, FieldTurf USA, Inc. (“FieldTurf”), for breach of warranty and fraud relating to the manufacture and installation of the artificial-turf field as part of the construction of Pleasant Grove’s new football stadium. Prior to trial, the trial court granted summary judgment in favor of Altech and partial summary judgment in favor of FieldTurf as to Pleasant Grove’s fraud claims. Pleasant Grove then proceeded to trial on its warranty claim, where a jury awarded Pleasant Grove $175,000 in actual damages based on FieldTurf’s breach of warranty. Pleasant Grove and FieldTurf both appealed.
The court found that Altech’s motion for summary judgment was not facially defective for failing to specifically address Pleasant Grove’s claim that the field failed to meet the specified G-Max rating because Altech’s motion for summary judgment generally addressed the allegations and existence of evidence that Altech made and breached a warranty against the field’s defects. For reference, a G-Max rating is a test that measures the shock attenuation performance of a sports surface. G-Max testing is also quite useful in assessing the playability of a playing surface. Next, the Court interpreted Pleasant Grove’s argument as saying the trial court granted summary judgment on a ground Altech failed to plead in its motion. However, the court found that Altech did not need to specifically address Pleasant Grove’s claims that Altech had breached its express warranty that the field would meet the G-Max testing specifications because this was one of many listed ways in which the field was defective. The court found that Altech’s arguments in its traditional and no-evidence motion for summary judgment regarding the warranties it made pertaining to the inherent defects in the field were sufficient to respond to Plaintiff’s allegations. The appellate court ruled that the trial court erred in granting Altech’s motion for summary judgment as to the G-Max testing because Pleasant Grove’s G-Max report, which created a dispute regarding a material fact, remained a part of the summary judgment proof in the case after the trial court failed to reduce its ruling on the report to a written order and enter the order.
The appellate court further found that report created a fact issue regarding whether Altech breached the express warranty that the field would meet G-Max testing specifications. The report was attached to Pleasant Grove’s response to Altech’s motion and also attached to Pleasant Grove’s response to FieldTurf’s interrogatories. The court ruled that Pleasant Grove could not rely on its own interrogatory answers to defeat summary judgment. The trial court struck the report from the summary judgment evidence after a hearing argument, but never reduced its ruling to a written order, signed and entered in the clerk’s record. Thus, the objected-to report remained a part of the summary-judgment proof and created a dispute regarding a material fact.
As for FieldTurf’s Partial Motion for Summary Judgment, the appellate court affirmed. The court found no evidence that FieldTurf made an affirmative material misrepresentation to Pleasant Grove. The appellate court stated that the trial court’s granting of summary judgment necessarily implies a ruling excluding the Davis declaration and deposition testimony. Since the declaration and deposition are not a part of the summary judgment proof, there is no evidence that a FieldTurf representative made a material misrepresentation to Pleasant Grove. Pleasant Grove argued FieldTurf failed to disclose: (a) the fiber comprising the field it sold to Pleasant Grove would prematurely deteriorate; (b) FieldTurf had sued its fiber supplier in 2011 alleging that the fiber was defective because it prematurely degraded and disintegrated during the warranty period; and (c) FieldTurf settled its lawsuit against the fiber supplier in 2014. Pleasant Grove tried to argue that FieldTurf had a duty to disclose because it: (a) voluntarily disclosed partial information but failed to disclose the whole truth; and/or (b) FieldTurf made a partial disclosure that conveyed a false impression. The appellate court did not find any facts that could support the imposition of a duty to disclose on FieldTurf. The appellate court ultimately ruled that there was no summary judgment evidence that created a duty for FieldTurf to disclose.
In conclusion, the appellate court determined that a remand for a new trial was the appropriate remedy because the trial court’s erroneous pretrial order regarding Altech limited the evidence of fault presented to the jury. This case truly highlights the need to preserve error and get a written ruling on objections to summary judgment evidence. Lastly, it is worth noting that even if the trial court orally sustains an objection and strikes summary judgment evidence, a written order must be obtained on that objection.
Pleasant Grove Indep. Sch. Dist. v. FieldTurf USA, Inc.
