Hennen v. McGinty

335 S.W.3d 642, 2011 WL 174943
CourtCourt of Appeals of Texas
DecidedMarch 3, 2011
Docket14-08-00983-CV
StatusPublished
Cited by9 cases

This text of 335 S.W.3d 642 (Hennen v. McGinty) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hennen v. McGinty, 335 S.W.3d 642, 2011 WL 174943 (Tex. Ct. App. 2011).

Opinions

OPINION

JOHN S. ANDERSON, Justice.

Appellant, Thomas J. Hennen, contracted with appellee, Villas By Design, Inc.,' (“VBD”) for the construction of his residence. The second appellee, Jerry McGinty, is the owner and manager of VBD. Appellant, dissatisfied with the quality of the construction, as well as appellees’ efforts to correct the problems, filed suit asserting numerous causes of action against several defendants, including ap-pellees. The case eventually went to trial with only appellees as defendants and the jury found in favor of appellant on most of appellant’s causes of action. Following the verdict, appellees moved for judgment notwithstanding the verdict, which the trial court granted in part and denied in part. The trial court then rendered judgment in favor of appellant only on his breach of contract cause of action against VBD in the amount of $651,230.72. Appellant now appeals from that judgment in his favor.

Factual and Procedural Background

Appellant purchased a vacant lot facing Galveston Bay from Villas By the Sea, L.L.C. in February 2001. Appellant signed an earnest money contract (the “Earnest Money Contract”) with VBD to construct a residence on that lot in May 2001. McGinty signed the Earnest Money Contract on behalf of VBD: The Earnest Money Contract provided that VBD warranted the home in accord with the terms of a limited home warranty provided by a third party: ACES; Inc. As the residence was nearing completion, appellant needed to close on its purchase for purposes of permanent financing. As a result, on September 18, -2002, the parties entered into a second contract regarding the completion of specified “punch list” items (the “Punch List Contract”). Again, McGinty signed on behalf of VBD. Appellant moved into the house in November 2002.

Once appellant moved into his house, he began to experience a litany of problems. Appellant struggled to get VBD to successfully address those problems as well as completing the punch list items. Among the problems experienced by appellant was water intrusion into his house. The evidence reveals that prior to June 20, 2003, appellant was aware of leaks/water intrusion in numerous areas of his house. These areas included, but were not limited to, the dining room windows; the “Bridge,” an elevated walkway connecting different areas of his house; the windows in the library that were located under the Bridge; the windows on either side of the Bridge; the garage; and the media room near a set of French doors.

Thesé problems with water intrusion were well documented in appellant’s communications with appellees. For example, on June 17, 2003, appellant wrote VBD:

Will you and TNR be addressing “all” the window issues? ... Also, are the window “weephole” issues strictly an issue of stucco/paint having covered them, or is there any window defect issue associated with the “leak” problems encountered? On that note, the horizontal fram[646]*646ing above the walkway column capitals, is leaking again....
Additionally, it appears that the whole reason for this specific stucco job in the first place, that of repairing leakage, may not be completely repaired. You had indicated that there may still be problems with the upper level windows causing continuing leakage. This problem must be corrected. ***** The leak is still there* * * * *

In an email sent on June 19, 2003, appellant asked VBD to return the keys to his house and informed VBD that, commencing June 23, 2003, he would begin pursuing all legal recourse available to him.

The next day, June 20, 2003, appellant sent a lengthy email to VBD advising that he had met with a lawyer and now had an understanding of the Texas Residential Liability Act. Appellant also pointed out the continuing problem with leaks, including a “newly discovered problem with an interior library window casement. It appears it may have experienced water leakage.” Appellant then repeatedly mentioned the possibility of litigation over the leaks and other issues; then warned: “I have another appointment Monday with my attorney to begin the process.”

On July 4, 2003, appellant found extensive and noticeable mold damage to the vertical walls going up to the ceiling in an upstairs bathroom. On July 10, 2003, appellant retained a lawyer to represent him in the ongoing dispute with VBD. In August, appellant’s lawyer recommended that appellant have his home inspected for mold. On August 20, 2003, a company called PE Services inspected appellant’s house and conducted mold testing. PE Services issued its report on October 7, 2003. PE Services determined there was significant fungal contamination throughout the house. After appellant had received the PE Services’ report, water damage and mold was identified in the exterior walls, interior walls, ceilings, flooring, around several plumbing fixtures, and inside the HVAC systems. Appellant learned that water penetration in the house was so widespread that to repair the damage would require the replacement of the entire roof, the replacement of all of the home’s stucco, and the replacement of every window in the house. It was further determined that the total cost to repair the house would be $651,230.72.

Despite appellant’s June 20, 2003 warning that he was about to begin the legal process, suit was not filed until June 22, 2005. Appellant sued VBD for breach of both the Earnest Money Contract and the Punch List Contract, violations of the Texas Deceptive Trade Practices Act (“DTPA”), and breach of express and implied warranties. Appellant also sued McGinty for negligence, violations of the DTPA, breach of express and implied warranties, and breach of the Punch List Contract.1 Appellant also sought attorney’s fees and exemplary damages.

Prior to trial, the trial court granted in part and denied in part a motion for summary judgment filed by appellees. The trial court determined that McGinty was not liable in his individual capacity on the Earnest Money Contract. It also determined that appellant had waived any implied warranties.

The case eventually went to trial on the remaining claims and the trial court submitted the case to the jury on nineteen questions. With respect to McGinty, the jury found that he (1) was negligent (Ques[647]*647tion 1); (2) breached an express warranty and the implied warranty of good and workmanlike performance (Question 10); (3) engaged in a false, misleading, or deceptive act or practice that appellant relied on to his detriment (Question 11); (4) engaged in unconscionable conduct (Question 12); and (5) acted knowingly and/or intentionally (Question 14).

With respect to VBD, the jury found that VBD had (1) breached the Earnest Money Contract (Question 4); (2) breached the Punch List Contract (Question 7); (3) breached an express warranty and the implied warranty of good and workmanlike performance (Question 9); (4) engaged in a false, misleading, or deceptive act or practice that appellant relied on to his detriment (Question 11); (5) engaged in unconscionable conduct (Question 12); and (6) acted knowingly and/or intentionally (Question 14).

In response to the damage questions for each cause of action, the jury found actual damages in the amount of $262,885.83 for diminution in value after repairs and $651,230.72 for cost of repair. In response to Question 15, the jury awarded exemplary damages against both McGinty and VBD for $750,000.00 each.

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Related

United National Insurance Company v. AMJ Investments, LLC
447 S.W.3d 1 (Court of Appeals of Texas, 2014)
McGinty v. Hennen
372 S.W.3d 625 (Texas Supreme Court, 2012)
Hennen v. McGinty
335 S.W.3d 642 (Court of Appeals of Texas, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
335 S.W.3d 642, 2011 WL 174943, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hennen-v-mcginty-texapp-2011.