Hill Constructors, Inc. v. Stonhard, Inc.

833 S.W.2d 742, 1992 Tex. App. LEXIS 1895, 1992 WL 163303
Court of Appeals of Texas·Decided July 16, 1992·No. No. 01-91-00921-CV·Published·Cited by 2 cases

Opinion

OPINION

WILSON, Justice.

Appellants Hill Constructors, Inc. (Hill) and Insurance Company of North America (INA) appeal from a summary judgment granted to Stonhard, Inc. in a contract action. We affirm.

On January 8, 1987, Stonhard and Hill entered into a subcontract which provided that Stonhard would perform epoxy flooring work for the Duncan Hall Rehabilitation and Improvements Project (the project) at Texas A & M University. The subcontract was prepared by Hill. INA supplied the bond for the work. Under the subcontract, Stonhard was required to comply with section 09731 of the specifications, which set out in relevant part as follows:

3.01 Preparation
a. Examination: Examine substrate for defects. Report unsatisfactory conditions in writing to Owner’s Representative and Architect. Do not proceed until unsatisfactory conditions have been corrected.
1. Starting work indicates
acceptance of substrate as constructed; installed epoxy flooring found to be unsatisfactory or defective shall be corrected at Installer’s expense.

Other subcontractors also worked on the Project, under Hill’s supervision. One of these other subcontractors was responsible for the concrete work, and was responsible for ensuring that the floors were properly leveled and sloped. No contract document called for Stonhard to perform any concrete work or to level or slope the floors. The concrete floor was installed approximately one month before Stonhard installed its epoxy flooring.

Unknown to Stonhard, however, the concrete floor had slight depressions, invisible to the naked eye, which affected the floor’s levelness and caused drainage problems. The depressions were not readily discernible and were not called to Stonhard’s attention by the subcontractor who installed the concrete floor. Stonhard’s job was to bond [744] the epoxy to the substrate so that the epoxy would adhere to it.

Prior to installation of the epoxy flooring in the kitchen area of the project, Hill requested that Stonhard level an area of 580 square feet in the kitchen. Stonhard performed this work in November, 1987.

After Stonhard had completed the installation of the epoxy flooring in the kitchen and warewashing areas, a dispute developed between it and Hill regarding the levelness of the floor and its capability of proper drainage. The dispute centered on who was responsible for the floor levelness and drainage and who should repair the problems.

The parties settled the matter by executing a change order, which added additional terms to the terms of their subcontract. The change order was drafted by Hill. Pursuant to the order, Stonhard, under Hill’s supervision, was to attempt to fill in certain areas of the floor designated by Hill in an attempt to correct the levelness and drainage problems. The change order specified that there were no guarantees, warranties, or representations by Stonhard as to the ultimate results concerning levelness and drainage.

The change order also required Stonhard to perform “cosmetic repairs” in the same designated areas, but Hill “recognize[d] and agree[d]” in the change order that “there may be some variance in color and transition lines between the reworked areas and the surrounding floor not being reworked and that this shall be acceptable.” The change order also stated that Hill released Stonhard of “any responsibility for further cosmetic reworking of the floor in the warewashing area and any color variances or transition lines.”

The change order also contained the following provision:

Upon completion of [the fill-in and “cosmetic” work], Hill Constructors, Inc., recognizes and agrees that Stonhard, Inc. has completed its performance in a workmanlike and acceptable manner under its original contract and authority for additional work. Hill Constructors, Inc., further recognizes that other than [the fill-in and “cosmetic” work], there are no known defects or unworkmanlike conditions in the work of Stonhard, Inc. in the warewashing area and there are no breaches or defaults by Stonhard, Inc. as of the date of this agreement.

The change order also “specifically release^] Stonhard from any [ ] responsibilities” for “tolerences of the level of the floor or whether the floor is properly pitched or sloped to provide adequate drainage.” Stonhard performed the change order work the first week of January, 1988.

Neither Hill nor INA paid Stonhard for its work under the contracts, and Stonhard brought suit for the money it claimed was due. It moved for summary judgment on November 2, 1990. Along with other evidence presented with its motion, Stonhard presented evidence that it had installed the epoxy flooring in accordance with the relevant specifications and that, had the subcontractor responsible for the underlying concrete flooring installed the floor to the required specifications, the floor would have been level and able to drain properly. The trial court granted Stonhard’s motion on July 1, 1991.

In its first point of error, Hill and INA contend that whether Stonhard had performed its subcontract was a genuine issue of material fact. In deciding whether there is a disputed material fact issue which should have precluded summary judgment, evidence favorable to the non-movant will be taken as true. Reilly v. Rangers Management, Inc., 727 S.W.2d 527, 529 (Tex.1987). Every reasonable inference from the evidence must be indulged in favor of the non-movant. Id. Any doubts must be resolved in the non-movant’s favor. Id.

Hill and INA subdivide this point of error into two arguments: (1) that Stonhard, prior to beginning work, was “responsible for the substrate” to a greater degree than just to inspect the surface, and (2) that Stonhard was required by the change order to relevel the kitchen.

We disagree in both respects. First, as to responsibility for the substrate, [745] section 09731 of the specifications states that Stonhard must “[ejxamine the substrate for defects.” Stonhard performed this task, and neither Hill nor INA argues that Stonhard’s examination was negligent or in any other way inadequate. Despite its examination, Stonhard was unable to spot the depressions, and presented proof to the trial court that they were in fact invisible.

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Hill Constructors, Inc. v. Stonhard, Inc., 833 S.W.2d 742, 1992 Tex. App. LEXIS 1895, 1992 WL 163303 (Tex. Ct. App. 1992).

833 S.W.2d 742 (Hill Constructors, Inc. v. Stonhard, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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