Kazmir v. Suburban Homes Realty

• Decision Date: 14 January 1992
• Docket Number: No. 6-91-037-CV,6-91-037-CV
• Citation: Kazmir v. Suburban Homes Realty, 824 S.W.2d 239 (Tex. App. 1992)
• Parties: Edward J. KAZMIR, et al, Appellants, v. SUBURBAN HOMES REALTY, Appellee.
• Court: Texas Court of Appeals

Page 239

824 S.W.2d 239

Edward J. KAZMIR, et al, Appellants, v. SUBURBAN HOMES REALTY, Appellee.

No. 6-91-037-CV.

Court of Appeals of Texas Texarkana.

Jan. 14, 1992.

David W. Showalter, Pamela Prince Stines, Law Offices of David W. Showalter, Bellaire, for appellants.

Lynne Liberato, Haynes & Boone, Houston, Larry D. Thompson, Lorance & Thompson, Houston, for appellee.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

CORNELIUS, Chief Justice.

This appeal involves two summary judgments. Kazmir, et al (hereinafter Kazmir) and Suburban Homes Realty (hereinafter Suburban) each contend that the summary judgment in favor of the other was improper because genuine issues of fact exist. We agree and reverse both judgments.

Suburban purchased lots in the Woodland Trails North Subdivision near Houston and constructed homes for sale. The subdivision is located over an active geological fault. The plaintiffs are more than fifty homeowners who purchased homes that are located on or near the fault. They purchased their homes between 1974 and 1978. There is some dispute as to whether the subdivision was completed in late 1977 or early 1978.

Kazmir and the other plaintiffs filed suit against Suburban in April 1988, alleging negligence, common law and statutory fraud, and violations of the Deceptive Trade Practices Act ¹ because Suburban sold homes while concealing the fact that the homes were on or near the fault. Suburban moved for summary judgment based on the ten-year statute of repose provided for engineers by TEX.CIV.PRAC. & REM.CODE ANN. § 16.008 (Vernon 1986). ² Suburban contended it was protected by the statute because one of its officers and part owners performed engineering services for the subdivision and the subdivision was substantially completed more than ten years before the suit. The trial court agreed and granted an interlocutory summary judgment in Suburban's favor.

Suburban had also filed a counterclaim for attorney's fees under Section 17.50 of the DTPA, alleging that Kazmir's suit for deceptive trade practices was groundless or brought in bad faith or for the purpose of harassment. Kazmir moved for summary judgment on that issue, and the court granted it in a final summary judgment disposing of all issues.

Although Kazmir gave notice of appeal stating that the appeal was limited to the summary judgment on the limitations issue, Suburban raises a cross-point in its brief complaining of the adverse summary judgment on its counterclaim.

Summary judgment is proper only if the movant establishes that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979); Baubles & Beads v. Louis Vuitton, S.A., 766 S.W.2d 377, 379 (Tex.App.--Texarkana 1989, no writ); TEX.R.CIV.P. 166a(c). The movant has a heavy burden, as all conflicts in the evidence are disregarded, the evidence favorable to the nonmovant is taken as true, and all doubts as to a genuine issue of material fact are resolved in the nonmovant's favor. Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex.1985). A defendant moving for summary judgment on the basis of an affirmative defense, such as limitations, must conclusively prove the defense by uncontradicted summary judgment evidence. Delgado v Burns, 656 S.W.2d 428, 429 (Tex.1983); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); Valdez v. Charles Orsinger Buick Co., 715 S.W.2d 126, 128 (Tex.App.--Texarkana 1986, no writ); 4 R. MCDONALD, TEXAS CIVIL PRACTICE IN DISTRICT AND COUNTY COURTS § 17.26.2 (rev. 1984).

The statute involved here is to be liberally interpreted to afford protection to engineers who furnish improvements to real estate. Mahathy v. George L. Ingram & Associates, 584 S.W.2d 521, 522 (Tex.Civ.App.--Beaumont 1979, no writ); Hill v. Forrest & Cotton, Inc., 555 S.W.2d 145, 149 (Tex.Civ.App.--Eastland 1977, writ ref'd n.r.e.). Whether or not a defendant is an engineer within the meaning of the Act can be a question of fact. Hixson v. Salem Corp., 673 S.W.2d 345, 346 (Tex.App.--Texarkana 1984, writ ref'd n.r.e.). The interpretation of a statute is a question of law, Johnson v. City of Fort Worth, 774 S.W.2d 653 (Tex.1989), but the determination of whether a person or firm is an "engineer" covered by the statute is one of fact. Hixson v. Salem Corp., 673 S.W.2d 345.

A firm need not provide engineering services exclusively to be protected by Section 16.008. See e.g., Brown v. M.W. Kellogg Co., 743 F.2d 265 (5th Cir.1984); Sowders v. M.W. Kellogg Co., 663 S.W.2d 644, 649 (Tex.App.--Houston [1st Dist.] 1983, writ ref'd n.r.e.). However, the mere fact that a firm or company has a person in its employ who is an engineer does not make the firm an engineer within the meaning of Section 16.008. Moreover, providing engineering services in connection with other services does not necessarily entitle one to the protection of Section 16.008. See McCulloch v. Fox & Jacobs, Inc., 696 S.W.2d 918 (Tex.App.--Dallas 1985, writ ref'd n.r.e.); Ellerbe v. Otis Elevator Co., 618 S.W.2d 870, 872 (Tex.Civ.App.--Houston [1st Dist.] 1981, writ ref'd n.r.e.), appeal dismissed for want of substantial federal question, 459 U.S. 802, 103 S.Ct. 24, 74 L.Ed.2d 39 (1982).

The first question we address is whether Suburban's summary judgment evidence conclusively established that it was an engineering firm within the meaning of TEX.CIV.PRAC. & REM.CODE ANN. § 16.008.

Suburban's motion for summary judgment was supported by the affidavit of William S. O'Donnell, a partner of Suburban and a party defendant. He stated that he is a licensed and registered engineer and that his involvement with Suburban was primarily in planning, designing, inspecting, and developing water and sewer utilities and other real estate improvements, building and designing homes, providing marketing support, and engaging in "the practice of engineering." He stated that work performed by Suburban which constitutes the practice of engineering was "personally" done, or done by "a" registered engineer or under "a" registered engineer's supervision. He stated that Suburban provided the following services in designing, constructing, and inspecting improvements in Sections 5 and 7 of Woodland Trails Subdivision: planning and inspecting the size and location of home sites, streets, driveways, sidewalks, street lights, and telephone and electrical easements; designing slab foundations; designing street access to homes; inspecting storm sewer and sanitary sewer systems; planning and inspecting the use of fill material; and planning and designing the construction of houses and other improvements. In a supplemental affidavit, O'Donnell produced evidence concerning the completion dates of the various homes.

In response to Suburban's motion, Kazmir produced the following summary judgment evidence: deposition testimony by O'Donnell to the effect that Suburban marketed and sold homes through a sales office in Woodland Trails North; many other affiliated companies were involved in the development; another engineer prepared all the engineer's drawings and plans for the water, sewer and paving; he had no contact whatsoever with any consulting or soil engineers as homes were being constructed; Hawthorne Construction Company built all the houses involved in this litigation; Suburban was the entity that contracted for all the building services and that Suburban was the agent that sold the homes and Hawthorne was the builder.

Other summary judgment evidence supporting an inference that Suburban did not act as an engineer includes: Suburban's tax returns for the years 1975, and 1977 through 1987 showing real estate sales and rentals as Suburban's principal business; an insurance policy showing Suburban's business to be builders and lumber yard; the absence of a listing in the yellow pages for Suburban as an engineer; subdivision plats that were prepared by John J. Pepe Consulting Engineers, Inc; the interrogatory answers of John J. Pepe Consulting Engineers stating that it rendered some, but not all, of the engineering services in Woodland Trails North.

Also attached as exhibits to Kazmir's response to the motion for summary judgment were Suburban's pleadings in other lawsuits where Suburban never claimed to be an engineer. Court records from other cases are acceptable summary judgment evidence. Gardner v. Martin, 162 Tex. 156, 345 S.W.2d 274, 276-77 (1961); Chandler v. Carnes Co., 604 S.W.2d 485, 487 (Tex.Civ.App.--El Paso 1980, writ ref'd n.r.e.). These pleadings state that Suburban was a builder performing and furnishing construction services; showed that Suburban previously relied on TEX.REV.CIV.STAT.ANN. art. 5536a, § 2 (now TEX.CIV.PRAC. & REM.CODE § 16.009 (Vernon 1986) ³), and Section 16.009 rather than Section 16.008 as the statute of limitations applicable to it; and showed that Suburban claimed John J. Pepe Consulting Engineers, Inc. was responsible for the engineering work for the Woodland Trails North Subdivision from beginning to end.

Being a named defendant, O'Donnell is an interested witness. His affidavit was properly considered as summary judgment evidence, but since it is not clear, positive and uncontradicted, it serves only to raise a fact issue and should not form the basis for the summary judgment. TEX.R.CIV.P. 166a(c).

The evidence we have summarized supports an inference that Suburban was not an engineer, within the meaning of Section 16.008, as to the homes involved. Thus, a fact issue exists and the motion for summary judgment was improperly granted to the extent it relied on this ground.

The next question we consider is whether there is a fact issue concerning the applicability of Section 16.008, even if Suburban is an engineer within the meaning of the Act.

Kazmir questions whether Section 16.008 or Section 16.009 apply at all because their cause of action is grounded on Suburban's continued...