National Foundation Repair Company v. Sigma Engineers, Inc. and Sina K. Nejad

• Court: Court of Appeals of Texas
• Decided: June 12, 2002
• Docket: 04-01-00698-CV
• Status: Published

Opinion

No. 04-01-00698-CV

NATIONAL FOUNDATION REPAIR COMPANY,

Appellant

v.

SIGMA ENGINEERS, INC. and Sina K. Nejad,

Appellees

From the 60th Judicial District Court, Jefferson County, Texas

Trial Court No. B-164,596-A

Honorable Gary Sanderson, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Paul W. Green, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: June 12, 2002

REVERSED AND REMANDED

National Foundation Repair ("NFR") appeals from a take-nothing summary judgment in favor of Sigma Engineers, Inc. and Sina K. Nejad on NFR's claims for contribution and indemnification for damages NFR would have to pay to Albert and Genia Miles for foundation repairs to the Miles's home. We reverse and remand.

FACTUAL BACKGROUND

Nejad is a structural engineer employed by Sigma. On March 12, 1999, Coy LaSalle retained Sigma to perform an engineering study on the foundation of LaSalle's home. Sigma's employee, Rand Holtham, inspected the LaSalle's house, and Sigma prepared an engineering report, which was signed by both Holtham and Nejad. The report recommended the placement of concrete piers at specified locations along the perimeter of the foundation. On March 29, 1999, Sigma asked NFR to submit a bid for foundation repairs to the LaSalle home. In response to Sigma's request, NFR reviewed the job site, but did not go into the residence. NFR was not asked to inspect the property, but only to provide a competitive bid based on Sigma's engineering report, a copy of which was provided by Sigma to NFR. NFR submitted a bid, and, on March 31, 1999, NFR and LaSalle entered into a contract under which the "repairs [would] be done in accordance with Sigma Engineering report #99-815."

NFR began work on April 12, 1999. On that same day, NFR asked Sigma to inspect its work, but Sigma told NFR it "was too busy" and NFR should use another engineering firm. NFR contacted Fitz & Shipman Engineering, which agreed to inspect the repairs being performed. Fitz & Shipman was not asked to inspect the foundation. On April 12 and 16, 1999, Fitz & Shipman visually inspected the repairs, and stated that in its opinion "The repairs were completed in a good and workmanlike manner." All work was done for LaSalle before he sold the house to the Miles.

Unhappy with the foundation repairs, the Miles sued NFR, alleging that NFR's work was not done in accordance with Sigma's specifications. The Miles asserted causes of action under the DTPA and for common law negligence. NFR answered, and filed a third-party action against Sigma and Nejad, alleging that they were "responsible parties" under the Civil Practice and Remedies Code and NFR was entitled to contribution and indemnification from them. Alternatively, NFR asserted that Sigma and Nejad were jointly and severally liable because they were negligent in their inspection of the home and in preparing the engineering plans and specifications for the work performed by NFR.

Sigma and Nejad filed a joint answer. Sigma moved for summary judgment on the grounds that it was not responsible for any damages caused by NFR because (1) neither the Miles nor NFR retained it to provide engineering services or to perform inspections for NFR; (2) there was no contractual relationship between itself and NFR; (3) NFR did not rely on Sigma's engineering report; and (4) if NFR relied on Sigma's engineering report, NFR failed to implement Sigma's recommendations. The trial court rendered summary judgment in favor of both Sigma and Nejad, and severed NFR's claims against them from the Miles's claims against NFR.

STANDARD OF REVIEW

Under traditional summary judgment standards, a party moving for summary judgment has the burden of establishing as a matter of law that no genuine issue of material fact exists as to one or more essential elements of the plaintiff's cause of action. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985). If the defendant meets this burden, the plaintiff must then raise a genuine issue of material fact on that element. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex. App.--Corpus Christi 1991, writ denied). In reviewing a summary judgment, an appellate court accepts as true all evidence supporting the non-movant. Nixon, 690 S.W.2d at 549. All inferences are indulged in favor of the non-movant, and all doubts are resolved in his favor. Id.

RESPONSIBLE THIRD PARTY

A defendant may join a "responsible third party" who has not been sued by the plaintiff if the court in which the action was filed could exercise jurisdiction over the third party; the third party could have been, but was not, sued by the plaintiff; and the third party "is or may be liable to the plaintiff for all or a part of the damages claimed against the named defendant or defendants." Tex. Civ. Prac. & Rem Code Ann. §§ 33.004(a), 33.011(6)(A) (Vernon1997). Here, Sigma argued that it was not a responsible third party because it owed no duty to NFR and had no privity of contract with NFR or the Miles.

The cases on which Sigma relies are inapposite because they do not involve one party seeking contribution or indemnification from another. See Amstadt v. United States Brass Corp., 919 S.W.2d 644 (Tex. 1996) (refusing to extend DTPA liability to upstream manufacturers and suppliers in manner not intended by Legislature); Hartman v. Urban, 946 S.W.2d 546 (Tex. App.--Corpus Christi 1997, no writ) (negligence); Bernard Johnson, Inc. v. Continental Constructors, Inc., 630 S.W.2d 365 (Tex. App.--Austin 1982, writ ref'd n.r.e.) (duty based on contract). Liability as a responsible third party does not require privity of contract between the third party and the plaintiff or the defendant seeking contribution or indemnification. Such liability merely requires that the third party be liable to the plaintiff for all or a part of the damages claimed against the named defendant. Tex. Civ. Prac. & Rem Code Ann. § 33.011(6)(A)(iii).

NFR's response to Sigma's motion for summary judgment raised genuine issues of material fact on whether Sigma and Nejad could be liable to the Miles. The contract expressly required that repairs be done in accordance with Sigma's engineering report. NFR alleged that it relied upon and followed the recommendations in Sigma's engineering report. NFR alleged that the foundation problem arose from the connection between the original construction of the house and an addition, and that Sigma's report failed to include the necessary corrective repairs.

Viewing the evidence in the light most favorable to NFR, we conclude that NFR's summary judgment evidence raised fact issues sufficient to defeat Sigma's entitlement to summary judgment; therefore, we need not address NFR's other issues on appeal. We reverse the trial court's judgment and remand the case for further proceedings.

DO NOT PUBLISH