Todd v. Perry Homes

Evidence of a risk of future problems does not create a fact issue with respect to the home's current condition or suitability for habitation.

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Click here for the full text of this decision FACTS:Michael and Elaine Todd were subsequent purchasers of a house built by Perry Homes. The Todds sued Perry for damages resulting from allegedly defective drainage design. The Todds asserted a cause of action for construction defect under Property Code 27.001, et seq., as well as breach of various warranties and Deceptive Trade Practices Act violations. Perry filed traditional and no-evidence summary judgments on all of the Todds’ claims. The trial court granted the no-evidence motion on the DTPA, unconscionable conduct and breach of implied warranty of habitability claims. The rest of the claims went to trial. The Todds appealed the grant of summary judgment on some of the claims. HOLDING:Affirmed. The court finds the Todds did not raise a genuine issue of material fact as to the element of habitability. The Todds presented evidence that the drainage problems created a risk of mold, rot, or termites, but evidence of a risk of future problems does not create a fact issue with respect to the home’s current condition or suitability for habitation, the court holds. Additionally, the implied warranty of habitability applies only to latent defects, and the drainage problem in this case was a visible condition. As to the DTPA claim, without evidence of a connection between the Perry’s actions and the sale of the house to the Todds, Perry cannot be held liable for unconscionable conduct under the DTPA. OPINION:Joseph B. Morris, J.; Morris, Moseley and FitzGerald, JJ

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