In The Court of Appeals Seventh District of Texas at Amarillo
No. 07-25-00169-CV
GLEASON & MESSENGER FARMS, LLC, APPELLANT
V.
JAMES SCOTT D/B/A LONESTAR STEEL BUILDINGS, APPELLEE
On Appeal from the 31st District Court Wheeler County, Texas Trial Court No. 14343, Honorable Steven R. Emmert, Presiding
May 4, 2026 MEMORANDUM OPINION Before DOSS and PRATT, JJ., and QUINN, S.J.1
Contracts to build three metal buildings underlie this appeal. Gleason &
Messenger Farms, LLC (Gleason), contracted with James Scott, d/b/a Lonestar Steel
Buildings (Lonestar), to perform the construction. Gleason intended to use building 1 for
storage, while buildings 2 and 3 were intended to serve as “barndominiums” (barndos)
within which people would reside. Yet, regarding the barndos, Lonestar’s obligation
1 Brian Quinn, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. consisted of simply pouring slabs and constructing their shells or exteriors; others were
to complete them.
Construction of each facility ensued, resulting in complaints by Gleason about the
buildings’ quality and characteristics. Though the company paid Lonestar for the storage
facility and Barndo 2, it only partially paid for Barndo 3. A suit followed with Gleason
asserting claims sounding in breached contract and deceptive trade practices. Lonestar
counterclaimed for the balance due on Barndo 3. Trial was to a jury, which ultimately
rendered a verdict denying Gleason recovery while sustaining Lonestar’s claim of
breached contract. The trial court entered judgment upon that verdict.
Six issues pend for review. They involve the sufficiency of the evidence, the trial
court’s exclusion and admission of evidence, the denial of requested jury questions,
attorney’s fees, and post-judgment interest. We reverse in part.
Issue One
Gleason’s first issue contains multiple sub-issues. Each pertains to the quantum
of evidence underlying the jury’s rejection of its claims. Generally labelled as attacks
upon the factual sufficiency of the evidence underlying the verdicts, one purports to also
implicate the legal sufficiency of the evidence underlying Lonestar’s recovery against
Gleason.2 We sustain one contention, overrule another, and find no need to address the
remaining.
2 In effect, it too is a factual sufficiency attack since Gleason did not brief the legal sufficiency aspect
of the contention. Thus, that aspect of the issue was waived and will go unaddressed. See Smith v. Dixon, No. 07-20-00197-CV, 2021 Tex. App. LEXIS 5592, at *6 (Tex. App.—Amarillo July 14, 2021, pet. denied) (mem. op.) (finding appellant’s issues waived for inadequate briefing and brief lacked substantive argument and citation to legal authority and record). 2 The pertinent standards of review are settled and need little comment. We cite the
parties to City of Amarillo v. Nurek, 639 S.W.3d 760 (Tex. App.—Amarillo 2021, pet.
denied), for their explanation. Yet, we take a moment to highlight several considerations.
First, when attacking solely the factual sufficiency of the evidence underlying a verdict,
the party implicitly concedes that the verdict has the support of legally sufficient evidence.
Soap Eng’g, LLC v. Infiniti Integration Servs. Corp., No. 07-24-00304-CV, 2025 Tex. App.
LEXIS 3944, at *6 (Tex. App.—Amarillo June 10, 2025, no pet.) (mem. op.); Wolf v. Starr,
617 S.W.3d 898, 903 (Tex. App.—El Paso 2020, no pet.). Secondly, both standards bar
us from simply substituting our interpretation of the evidence for that of the factfinder.
Nurek, 639 S.W.3d at 765. Under both, the factfinder remains the sole judge of the
credibility of the witnesses and the weight to be given their testimony. In re A.C.B., 302
S.W.3d 560, 564 (Tex. App.—Amarillo 2009, no pet.). That said, we turn to the issues.
Deceptive Trade Practices
Question One of the jury charge asked whether Scott d/b/a Lonestar Steel
Buildings “engage[d] in any false, misleading, or deceptive act or practice that Gleason &
Messenger Farms, LLC relied upon to its detriment and that was a producing cause of
damages to Gleason & Messenger Farms, LLC?” Via Question Two, the trial court asked
the jury to determine if the failure of James Scott d/b/a/ Lonestar Steel Buildings “to
comply with a warranty was a producing cause of damages?”3 To both, the jury
answered: “No.” Here, Gleason argues that “the following jury findings are against the
great weight and preponderance of the evidence: (1) Lonestar did not engage in any false,
misleading, or deceptive act or practice that Gleason & Messenger relied upon to its
3 A definition accompanied the question, which definition told the jury that the failure to comply with
a warranty meant “[f]ailing to perform services in a good and workmanlike manner.” 3 detriment and was a producing cause of its damages and (2) Lonestar’s failure to comply
with a warranty was not a producing cause of damages to Gleason & Messenger.” As
can be seen, only the factual sufficiency of the evidence underlying the jury’s answers is
attacked. So, in effect, Gleason concedes the existence of some evidence or legally
sufficient evidence supporting the jury’s verdicts. And, in determining the viability of its
contentions, we begin by analyzing the factual sufficiency of the evidence underlying the
answer to Question Two.
a. Warranty of Good and Workmanlike Performance
Gleason contracted for the construction of steel buildings, the frames of which
were steel tubing. Those tubes were to be welded to each other. Codie Ivins, Gleason’s
welding expert, inspected 75% of those welds in the two buildings which had yet to be
insulated, that is, Barndos 2 and 3. Of that 75%, less than 10% passed his visual
inspection. Those that failed depicted 1) porosity (voids within the welds); 2) blow
throughs (punctures in the tubing); 3) mere tacks as opposed to complete welds; 4) welds
that incorporated paint from the tubing; 5) slag (solidified remains of welding flux); 6)
undercuts (welds containing a raised edge that remained unfilled) susceptible to cracking;
or 7) welds that did not actually meld together the tubing. Such defects were captured in
numerous photos admitted into evidence, a representative sampling of which includes the
following:4
4 Truly, a picture best paints what words deficiently describe.
4 5 Each posed a point of possible failure, according to Ivins. Lonestar did not deny the
existence of such welds.
Rather, Lonestar’s expert, Jim McCarroll, characterized the defects found by Ivins
as merely “cosmetic,” “ugly,” and “need[ing] to be cleaned-up.” Furthermore, cleaning
them up, in his view, consisted of using a grinder with a wire brush to remove surface
material followed by the use of a MIG welder to reweld the joint. He then added that 1)
some welds needed to be “fixed”; 2) he was not “saying they [the welds] was [sic] all
good”; 3) he would make the welds “presentable,” “fix” the holes, and reweld the porous
welds; 4) he would not just leave flux or slag on a weld and “walk-off”; 5) “top side [welds]
really didn’t look much better”; 6) repairs would run from $2,500 to $4,500; and 7) he had
no concern about using the buildings as they were being used when he inspected them,
that is, as animal shelters.5 In short and despite calling them “cosmetic,” Lonestar’s own
expert recognized the presence of welding defects necessitating repair, as did Ivins.
5 Again, Barndos 2 and 3 were to be built as human living quarters, not structures to house livestock
or animals. So, McCarroll suggesting the structures as built were fit for housing animals is no evidence that they were fit to house humans. 6 Indeed, he opined that he would not have left several of the welds he encountered had
he been the welder.
To the foregoing, we now add Scott’s own words. He was asked “how do you
decide – what do you go by to decide if you think the weld is approved or not?” His reply
was “[t]he most important thing, I mean, is if they’re cracked or pulled apart. If there’s –
that would be the first sign, is if they haven’t held, then structurally they’re not good.”
Welds found in the buildings depicted those very conditions, as illustrated by two of the
foregoing pictures. So, some met Scott’s own criteria as objectionable or unsatisfactory.
Nevertheless, he, like McCarroll, also generally described the welds as merely “ugly” or
having “cosmetic” defects. That leads one to reasonably wonder if “ugly” and “cosmetic”
included welds of the ilk encompassed by his definition of unapproved. Be that as it may
for Scott also suggested they could be “fixed.”6 These opinions of his apparently were
derived after conducting his own inspection. Yet, his own words rendered suspect the
extent of that inspection. For instance, when queried about it, he could remember “getting
up and looking” on only one of the three buildings. “[G]etting up and looking” on only one
building weakens the foundation underlying his opinion about the structural acceptability
of all the welds in all the buildings.
In turn, the actual welder and Scott’s nephew (Head) also acknowledged the
presence of “ugly” welds.7 They needed to be touched up in his view. This witness also
described how two other workmen had the initial duty of “tacking” the steel tubing together
6 That harkens to a twist on the old adage of “don’t fix what ain’t broke” . . . “if it ain’t broke, then
why fix it.”
7 It seems rather interesting that “ugly” apparently includes welds that do not bridge gaps between
the metal, contain pockets of porosity (bubbles), or include holes blown in the surrounding metal. 7 to set them in place. Once tacked, Head was to then follow up and complete the weld.
But, as depicted by exhibits of record, welds were found that simply consisted of tacking;
apparently, they were not completed. Head then revealed that, though Gleason was not
a welder, only those welds which Gleason questioned would undergo repair or touch-up.
As for evidence about the structural integrity of the welds, several witnesses
considered them sound. They arrived at that belief after conducting visual inspections.
But again, the extent of those inspections was suspect. To reiterate, Scott merely viewed
the welds of one while McCarroll merely stood on the ground to examine ceiling welds.
And it seems that those purported inspections missed defects like the ones depicted in
the aforementioned pictures.
Performing in a good and workmanlike manner does not mean perfection. It
means providing that quality of work done “by one who has the knowledge, training, or
experience necessary for the successful practice of a trade or occupation and performed
in a manner generally considered proficient by those capable of judging such work.”
Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987) (op. on reh’g); accord
Ewing Constr. Co. v. Amerisure Ins. Co., 420 S.W.3d 30, 37 (Tex. 2014) (same). When
the welder charged with welding Gleason’s buildings admits to the presence of welds
needing to be fixed . . . when expert welders presented by both litigants admit to the
presence of welds needing attention . . . and when the jury has before it numerous
pictures of numerous welds requiring attention, the jury had overwhelming evidence of
work done in less than a good and workmanlike manner. Lonestar’s witnesses may call
them “cosmetic” or non-structural defects, but those same witnesses nonetheless
8 acknowledged the need for repair. And, Lonestar’s own expert provided his estimate as
to the monetary cost of those repairs.
To the foregoing we also note undisputed evidence regarding the manner by which
a porch and carport were attached to the buildings. In both instances, they were affixed
via screws merely screwed into the sheet metal of the respective main building (as
opposed to a beam), and such sheet metal was not designed to withstand the load of
either a porch or carport. Again, Lonestar did not dispute that; instead, Scott himself
acknowledged the condition. He tried to justify it by saying not only that his employees
forgot to bring bolts but also that he intended to return to fix the problem. But, like the
welds, the defect remained.
In short, the foregoing evidence depicts universal concession as to the need for
further repairs. That leads us to hold that the jury’s rejection of Gleason’s deceptive trade
practice claim founded on breached warranty of good and workmanlike conduct was and
is so against the great weight and preponderance of the evidence as to render it clearly
wrong and unjust. Thus, we sustain issue two, and that requires a new trial on the claim.
See Dubree v. Blackwell, 67 S.W.3d 286, 289 (Tex. App.—Amarillo 2001, no pet.) (noting
new trial to be the applicable remedy when a verdict is not supported by factually sufficient
evidence).
b. Misrepresentations
Next, we turn to Gleason’s attack upon the jury’s answer to Question One. Again,
the factfinder answered “no” when asked if Lonestar “engage[d] in any false, misleading,
or deceptive act or practice that Gleason & Messenger Farms, LLC relied upon to its
detriment.” The purportedly false, misleading or deceptive acts concerned
9 representations about the ability of the buildings to withstand 120 mph winds, the
habitability of Barndos 2 and 3, the presence of adequate footing, and out-of-plumb
beams.
To reiterate, Gleason believed the jury’s answer lacked factually sufficient
evidentiary support. So, as before, we begin with the implicit concession about the verdict
having legally sufficient evidentiary support. Moreover, our review of the record failed to
nudge us toward the precipice of factual insufficiency.
For instance, while Scott knew Gleason intended to use Barndos 2 and 3 as
residences, he agreed to construct only a shell resting upon a foundation. An agreement
to build a shell lacking electricity, insulation, plumbing and the like, is not an agreement
to construct a habitable building. See Centex Homes v. Buecher, 95 S.W.3d 266, 273
(Tex 2002) (subst. op. on reh’g) (stating that habitability contemplates a “house that is
safe, sanitary, and otherwise fit for human habitation”); Lutfak v. Gainsborough, No. 01-
15-01068-CV, 2017 Tex. App. LEXIS 4554, at *20 (Tex. App.—Houston [1st Dist.] May
18, 2017, no pet.) (mem. op.) (same). Moreover, various witnesses opined that the
finished structures would be suitable for living quarters. As for beams being out of plumb,
that is supported by some evidence. But other evidence Lonestar proffered controverts
the proposition. The same is true of the footing. While Gleason offered testimony
indicating inadequate or absent footing, Lonestar proffered evidence illustrating
otherwise. Similarly, Scott testified that the buildings of the ilk at bar can withstand 120
mph winds and have historically withstood high winds. Of course, other evidence or
record exists on both sides of the argument. Yet, we need not detail it since we find the
evidence underlying the verdict to be factually sufficient. See Ibarra v. Noah’s Roofing &
10 Constr., 657 S.W.3d 412, 420–21 (Tex. App.—El Paso 2022, no pet.) (stating that
because “we uphold the factual sufficiency of the evidence, we need not otherwise give
details of all supporting evidence of record”). In effect, the jury was faced with credibility
choices and conflicting evidence. The task fell to its members to decided whom to believe
and what evidence to credit. And having performed it by rejecting the claim, we cannot
say its decision was or is clearly wrong or unjust.
c. Breached Contract
The remaining subparts of the first issue encompass the answers to Questions 4
and 7. Through 4, the jury said “no” when asked if Lonestar breached its contract with
Gleason. Through 7, it said “yes” when asked if Gleason breached the contract by failing
to pay. Yet, we need not address either subpart given our earlier disposition of the
warranty claim.
Simply put, the warranty of performing in a good and workmanlike manner is
implied into construction contracts like those here. See Nghiem v. Sajib, 567 S.W.3d 718,
725 (Tex. 2019). Furthermore, the tenor of Lonestar’s performance underlies an aspect
of Gleason’s claim of breached contract. Our having reversed that portion of the verdict
finding against Gleason on its good and workmanlike claim effectively nullifies the jury’s
answer to whether Lonestar breached the contract. That is, if on retrial the factfinder
determines that Lonestar failed to perform in a good and workmanlike manner, then it
breached its contract with Gleason, and that topic remains open.
As for the viability of the verdict favoring Lonestar’s claim of breached contract, a
later finding that it breached the same warranty could prevent or otherwise impact
Lonestar’s recovery. See Warren v. Denison, 563 S.W.2d 299, 303 (Tex. App.—Amarillo
11 1978, no pet.) (stating that “a finding that the builder did not complete the contract in a
good workmanlike manner does not necessarily mean that he has not substantially
performed the contract. The instances of failure to perform in a workmanlike manner are
often no more than deviations from perfect compliance, which reduce the recovery on a
contract otherwise substantially performed”). So, we are compelled to also return the
claims underlying Questions 4 and 7 to the trial court for new trial.
Issue Two
The next issue implicates the trial court’s rulings concerning the exclusion and
admission of evidence. Upon consideration of each argument, we overrule the issue for
the following reasons.
Exclusion of exhibits depicting footing
Regarding the exclusion of Gleason’s evidence purportedly “demonstrating
Lonestar’s failure to install appropriate footings,” Gleason both created the evidence and
disclosed it to Scott after lapse of the discovery deadline. That resulted in Lonestar
objecting to its admission. The trial court sustained the objection because of its policy
that “nothing’s admissible after the deadline [] [u]nless . . . leave is obtained” and “that
stuff doesn’t come in that’s produced after the date of the – end of the discovery deadline
unless there’s some extenuating circumstance to grant leave.” Before us, Gleason
characterizes the decision as reversible because the trial court “refused to consider the
lack of surprise or unfair prejudice to Lonestar.”
Generally, questions regarding the admission and exclusion of evidence are
reviewed under the standard of abused discretion. Fitzgerald v. Water Rock Outdoors,
LLC, 536 S.W.3d 112, 119 (Tex. App.—Amarillo 2017, pet. denied). Per that standard,
12 “before we can hold that a trial court erred . . ., it is incumbent upon the party having the
burden to prove error on appeal (i.e., the appellant) to negate each potential basis
supporting the ruling.” In re T.M., 33 S.W.3d 341, 348 (Tex. App.—Amarillo 2000, no
pet.). We further note authority saying that a party failing to make, amend, or supplement
discovery in a timely manner may not introduce in evidence the material or information
that was not timely disclosed unless the court finds 1) good cause for the failure or 2) the
failure does not unfairly surprise or unfairly prejudice the other parties. TEX. R. EVID.
193.6(a)(1)–(2); Jackson v. Takara, 675 S.W.3d 1, 6 (Tex. 2023) (per curiam).
Here, the reason offered by the trial court for excluding the evidence in question
tends to fall within the ambit of “good cause.” That is, Gleason did not obtain leave, based
on “extenuating circumstance[s],” to provide its opponent the evidence after the discovery
deadline lapsed. That smacks of lacking good cause justifying the failure to timely
supplement. On the other hand, the trial court said little about the topic of surprise and
prejudice. Yet, surprise and prejudice still justified exclusion of the evidence, as we now
discuss.
Lonestar complained about Gleason’s failure to comply with the discovery
deadline, which apparently fell on July 26, 2024. It also contended that Gleason’s expert
revealed during an earlier deposition that he had not dug around the buildings to
investigate whether Lonestar laid adequate footing. The purported absence of adequate
footing served as one basis for Gleason’s contention about breached contract and
deficient performance. Not until a week before trial and several weeks after the discovery
deadline lapsed did Gleason attempt to fill the void. Gleason did not explain to the trial
court why its expert witness had not timely attempted to obtain discovery supporting his
13 upcoming opinion. Indeed, Lonestar’s counsel noted that Gleason had more than a year
to seek discovery upon an important aspect of Gleason’s claims but nonetheless waited
until the eve of trial to act. Nor did Gleason explain why it had not obtained leave of court
to act belatedly. As argued by Lonestar, “[t]his issue [regarding footing] has been from
day 1, over 2 years ago, and they just now got a backhoe out there to see what they want
to now produce to us.”
The foregoing circumstances depict effort by Gleason to fill gaps in its evidence,
gaps that Lonestar earlier discovered and intended to exploit. It depicts Gleason’s effort
to shore up, after the discovery deadline, gaps in expert testimony to be proffered at the
impending trial. So, one (including a trial court) can reasonably deduce prejudice and
surprise underlying Lonestar’s objection. And, even if the trial court did not voice this
ground when sustaining the objection, the ground and circumstances supporting it
insulate the decision from reversal. As we have observed in the past, a trial court’s
decision may be upheld even on grounds no one, even the trial court, considered. See
Cantrell v. State, 280 S.W.3d 408, 411 (Tex. App.—Amarillo 2008, pet. ref’d); see also
CSL Sweatherford, LLC v. Arens, 668 S.W.3d 431, 437 (Tex. App.—Fort Worth 2023,
pet. denied) (noting the obligation to uphold a trial court decision on any theory supported
by the record when it does not make findings).
Evidence of Repair Costs
The next controversy concerns the exclusion of estimates about the costs to repair
the buildings being so high that the only option was to demolish and replace them.
Purportedly, such were “crucial to key issues [like] the severity of Lonestar’s breaches,
14 the reasonableness of the costs of repair, and difference-in-value damages.” We overrule
this complaint, as well.
To the extent that the evidence was relevant to the damages recoverable by
Gleason, we further note the presence of testimony admitted of record about the costs
involved and how they warranted demolition and reconstruction. According to Gleason’s
expert, they were “exorbitant,” and it was “significantly” less expensive to tear down the
existing buildings and “start with new ones.” So, assuming the trial court erred in
excluding the evidence, the alleged mistake was harmless given the presence of similar
evidence admitted elsewhere without objection. Washington v. State, No. 07-17-00427-
CR, 2018 Tex. App. LEXIS 8319, at *6–7 (Tex. App.—Amarillo Oct. 10, 2018, pet. ref’d)
(mem. op.) (holding that, even though the trial court erred in excluding “Granberry’s
testimony . . . the error was harmless given that substantially identical evidence was
admitted elsewhere without objection”); accord Gonzalez v. Delgado, No. 01-21-00217-
CV, 2022 Tex. App. LEXIS 6747, at *29 n.8 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022,
no pet.) (mem. op.) (same).
Gleason’s next complaint concerns evidence about flooring and a purported
agreement with Lonestar regarding same. At trial, counsel for Gleason asked if “there
[were] any other discussions about the way that the barndominiums would be built?” The
witness answered, in part, as follows: “I did make sure to tell him I wanted polished
concrete floors.” That elicited objection from Lonestar founded on the parol evidence
rule. The court initially “sustained” that objection. Yet, counsel for Gleason then
commented that he “wasn’t trying to get beyond that, but besides everybody’s talked
about polished concrete several times as well as several discussions about other matters
15 that were not within the four corners of the contract.” That led the trial court to think further
about the matter and utter: “I don’t think he [the witness] said it’s part of the contract. He
just – my understanding was he said he told them – or he – it’s his testimony that he told
him. Okay. I’m going to allow it. Go ahead.” That was followed by counsel for Gleason
saying, “And that’s all I’m getting at, Judge.” Thereafter, the witness was told it was “okay”
to “finish” his original answer to the question “about the way that the barndominiums would
be built,” which the witness did. These circumstances do not depict an exclusion of
evidence but, rather, permission for the witness to answer the question propounded to
him, over Lonestar’s objection. Being allowed to do what it sought provides Gleason no
basis for complaining, and we overrule the argument.8
Evidence of Other Suits
Lastly, Gleason complains of the trial court’s refusal to sustain its objection to
evidence about other lawsuits it initiated against third parties. Objection came when
Lonestar broached the lawsuit involving repairs to a skid steer. Though the trial court
overruled the objection, Gleason did not ask for a continuing or running objection as
Lonestar developed the topic. Nor did it object each time Lonestar queried the witness
about the skid steer dispute. Gleason also remained mute when Lonestar propounded
questions about other suits initiated by Gleason and unrelated to the skid steer. Given
that additional evidence of the skid steer suit was admitted without objection, as was
evidence of the other suits, Gleason waived or failed to preserve the current complaint.
8 As for the suggestion that the trial court somehow generally misapplied the parol evidence rule,
we say the following: It allegedly misapplied the rule, according to Gleason, because parol evidence involving other aspects of the parties’ agreement was admitted. Yet, Gleason does not direct us to where anyone objected or otherwise urged the rule to bar admission of evidence at those times. We hesitate to conclude that because unobjected-to parol evidence came in elsewhere means all parol evidence, even that which is inadmissible and to which one objects, automatically becomes admissible. 16 See In re A.J.C., No. 07-24-00331-CV, 2025 Tex. App. LEXIS 1650, at *3 (Tex. App.—
Amarillo Mar. 12, 2025, no pet.) (mem. op.) (holding that the complaint was not preserved
because the complainant failed to object each time the evidence was admitted or
otherwise request and obtain a running objection to that evidence); see also Lubbock
Cnty. v. Reyna, No. 07-19-00330-CV, 2021 Tex. App. LEXIS 33, at *10–11 (Tex. App.—
Amarillo Jan. 5, 2021, no pet.) (mem. op.) (holding that complaint was waived due to the
lack of repeated objections or securing a running objection).
Issue Three
Via this issue, Gleason contends that the trial court erred in denying its request to
submit jury questions on 1) Lonestar’s purported breach of the implied warranty of
habitability and 2) his alleged knowing and intentional misrepresentation concerning the
quality of the buildings. We first review the decision regarding the question of breached
warranty of habitability.
The pertinent standard of review is one of abused discretion. See Thota v. Young,
366 S.W.3d 678, 687 (Tex. 2012) (stating that appellate courts “review a trial court’s
decision to submit or refuse a particular instruction under an abuse of discretion standard
of review”). “Discretion is abused when the trial court acts without reference to guiding
rules or principles; that is, when the decision is arbitrary or unreasonable.” In re
Guardianship of Tonner, 514 S.W.3d 242, 243 (Tex. App.—Amarillo 2014), aff’d, 513
S.W.3d 496 (Tex. 2016) (per curiam). We cannot say the trial court abused its discretion
in refusing the question about breaching the warranty of habitability. This is so because
the decision actually comports with the law.
17 Assuming arguendo that all involved knew Barndos 2 and 3 were to be residences,
no one denies that Lonestar’s contractual obligation consisted of only building shells and
laying foundation. In other words, the obligation merely consisted of providing incomplete
abodes. This is of import given the words of our Supreme Court in Centex Homes v.
Buecher. There, it said 1) the warranty of habitability, as opposed to one involving good
and workmanlike performance, “looks only to the finished product,” and 2) it “is a result
oriented concept.” Centex, 95 S.W.3d. at 273 (emphasis added). It further explained that
“[a]s compared to the warranty of good workmanship, ‘the warranty of habitability
represents a form of strict liability since the adequacy of the completed structure and
not the manner of performance by the builder governs liability.’” Id. (quoting Timothy
Davis, The Illusive Warranty of Workmanlike Performance: Constructing a Conceptual
Framework, 72 NEB. L. REV. 981, 1015 (1993)). If nothing else, these words restrict the
warranty of habitability to the provision of completed facilities. Lonestar’s obligations did
not encompass the provision of finished homes but, rather, building shells. So, unless
one ignores Centex, Gleason was unentitled to the issue sought. Moreover, Gleason’s
mention of March v. Thiery, 729 S.W.2d 889 (Tex. App.—Corpus Christi–Edinburg 1987,
no writ), does not change this for several reasons.
First, the court in March said nothing of Centex; of course, this may be because
the former intermediate court opinion was issued years before the latter Supreme Court
opinion. And, we all know Supreme Court rulings control. Second, and unlike the
circumstances here, the builder of the unfinished home and his family in March actually
lived in the abode for several years before selling it to Thiery. Id. at 892. This suggests
the abode was intended to be habitable at time of sale. Here, the structure in question
18 was a mere shell, lacking the amenities rendering the structure safe, sanitary, and
otherwise fit for human habitation. See Centex, 95 S.W.3d at 273 (stating that habitability
contemplates a “house that is safe, sanitary, and otherwise fit for human habitation”). As
we noted earlier, Lonestar having contracted to construct only a shell, it did not agree to
provide a house that is “safe, sanitary, and otherwise fit for human habitation.” Nor can
it be logically said the buyer contracted for a “house” or residence that is “safe, sanitary,
or otherwise fit for human habitation” when seeking only a shell. And, this may be why
our Supreme Court contemplated a finished product or residence in Centex as a
prerequisite to the existence of the warranty of habitability.
Finally, we are a bit troubled by a potential piecemeal application of the concept if
it is applied to construction short of complete. For instance, if an entity charged only with
erecting the slab, walls, and roof did so quite satisfactorily while a later contractor wired
or plumbed the abode so poorly it was not habitable, would the former be responsible for
the inhabitability of the house? After all, the edifice was not habitable when the former
finished its work and remained so due the poor craftmanship of later individuals.
Displacing Centex with March could leave contractors exposed to liability for downstream
activities over which they had no control. Applying Centex as written avoids that
likelihood.
In short, we overrule that portion of Gleason’s fourth issue pertaining to the
warranty of habitability. That leaves us with the complaint about refusing to submit a
question on whether Lonestar’s purported deceptive trade practices (i.e.,
misrepresentations and warranty breaches) were knowing or intentional. Our earlier
disposition of the factual sufficiency disputes relieves us from the need to address the
19 matter at this time. That is, the omission grew moot viz-à-viz the allegation of
misrepresentation since the jury found none. As for the allegation of breached warranty,
that claim is being retried, and the relevance of the instruction likely depends upon the
tenor of evidence admitted at retrial.
Issue Five
Next, Gleason attacks the attorney’s fees awarded Lonestar. The latter sought
such fees for successfully pursuing its claims involving breached contract, violation of the
prompt payment statute, and enforcement of mechanic’s liens. Apparently, each was
founded upon Gleason’s alleged failure to pay Lonestar for successfully performing its
contractual obligations regarding Barndo 3.
Lonestar based its claim to attorney’s fees upon § 38.001 of the Texas Civil
Practice and Remedies Code9 and § 28.005 of the Texas Property Code.10 Our earlier
disposition of the first issue requires a new trial. The outcome of that new trial may
influence the decision to award attorney’s fees and the amount of fees to award. For that
reason, we sustain issue five, reverse the attorney’s fees awarded Scott and Lonestar,
and remand the issue for new trial as well. See Pointe West Ctr., LLC v. It’s Alive, Inc.,
476 S.W.3d 141, 152–53 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (stating that
because the court remanded for new trial one of Pointe West’s breach-of-contract claims,
it must also remand its claim for attorneys’ fees related to the claim).
9 See TEX. CIV. PRAC. & REM. CODE § 38.001(a) (permitting the recovery of reasonable attorney’s
fees if the claim is for rendered services, performed labor, or breach of an oral or written contract).
10 See TEX. PROP. CODE § 28.005(b) (stating that an in action brought under this chapter of the
Prompt Payment Act, the court may award costs and reasonable attorney’s fees as it determines equitable and just). 20 Issue Six
In its final issue, Gleason contends that the trial court erred when ordering in the
final judgment that the sums due from it accrue “post-judgment interest at the rate of 18
percent (18%) per month.” As with issue five, this one too is dependent upon the outcome
of a new trial. So, we sustain it.
In sum, we reverse the judgment of the trial court and remand for new trial on all
matters except for the cause of action arising under the Texas Deceptive Trade Practices
Act and founded upon alleged misrepresentations uttered by Scott and Lonestar.
Brian Quinn Senior Justice