Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Perry Homes constructs and sells residential property across the state of Texas. One of the houses they built was purchased by the Delfinos. During the course of the construction of this house, Suncoast Post-Tension LP, the foundation sub-contractor, notified Perry Homes that they were “unable to complete the stressing operation due to a blowout.” It appears from the record that Perry Homes authorized a work order so that Suncoast could fix the problems. A couple who initially had planned to buy the house decided not to purchase it and backed out of their earnest-money contract with Perry Homes. This was due in large part to their independent inspector’s report noting that he observed that “exposed grade beam surface revealed what appeared to be small circular patches.” It is not clear from the record, but apparently some work was done by Suncoast to alleviate the issue in the inspector’s report. A Suncoast engineer, in a letter to Perry Homes entitled “Certification,” stated “the stressing tails were cut and the stressing pockets grouted.” The Delfinos purchased the house a few months later. Thomas Delfino testified in an affidavit that Perry Homes never mentioned any previous problems with the foundation in response to his questions about it. He also testified that he learned of the house’s foundation problems from his next-door neighbor. At the Delfino’s request, Perry Homes and Suncoast came out to test the tendons in the foundation. Problems with some of the tendons were discovered, which Suncoast blamed on “the poor quality workmanship of the concrete finisher,” and repaired. After the work was finished, Suncoast told Perry Homes that “it is our opinion that the foundation will perform as designed provided proper drainage and moisture maintenance practices are followed.” The Delfinos, unsatisfied, filed suit, alleging in their original petition civil conspiracy, fraud and constructive fraud, statutory fraud in a real estate transaction, fraudulent inducement to contract, negligent misrepresentation, and violations of the Texas Deceptive Trade Practices Act (DTPA). Perry Homes then filed a Rule 166a(i) motion for summary judgment entitled “Motion for Summary Judgment.” Perry Homes also filed a 166a(c) motion for summary judgment entitled “Defendant Perry Homes, A Joint Venture’s Motion for Summary Judgment,” contending that the Delfinos 1. could not prove any damages and 2. that there was no duty of disclosure on its part. The Delfinos filed a second amended petition, this time alleging fraud, constructive fraud, statutory fraud in a real estate transaction, fraudulent inducement to contract, and violations of the DTPA. The trial court granted the “Defendant Perry Homes, A Joint Venture’s” motion (the Rule 166a(c) motion) for summary judgment and rendered final judgment. HOLDING:Affirmed. Perry Homes, relying on Blum v. Julian, 977 S.W.2d 819, 823 (Tex. App. – Fort Worth, 1998, no pet.), claims that the trial court impliedly sustained Perry Homes’s objections to the Delfinos’ summary judgment evidence when the court granted Perry Homes’s motion for summary judgment. The court states that Blum does not stand for this proposition, but Frazier v. Yu, 987 S.W.2d 607 (Tex. App. – Fort Worth 1998, pet. denied), does. The court disagrees, adopting the reasoning of Well Solutions Inc. v. Stafford, 32 S.W.3d 313 (Tex. App. – San Antonio 2000, no pet.). The Well court stated: “rulings on a motion for summary judgment and objections to summary judgment evidence are not alternatives; nor are they concomitants. Neither implies a ruling � or any particular ruling � on the other. In short, a trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not ‘capable of being understood’ from the ruling on the motion for summary judgment. We therefore reject the reasoning in Blum and Frazier.” The court holds that the trial court did not impliedly sustain Perry Homes’ objections to the Delfinos’ summary judgment evidence. Perry Homes also contends that the summary judgment evidence from the Delfinos’ experts’ testimony is not enough to create a material fact issue. One of the experts testified that there may be nothing wrong with the foundation � this is enough to preclude creation of a material fact issue because that statement belies any certainty as to whether damages exist at all. Uncertainty as to the fact of legal damages is fatal to recovery. OPINION:Nuchia, J.; Radack, C.J., Taft and Nuchia, J.J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.