Knowlton v. U.S. Brass Corp.
| Decision Date | 19 August 1993 |
| Docket Number | Nos. 01-90-00612-C,01-90-00825-CV,s. 01-90-00612-C |
| Citation | 864 S.W.2d 585 |
| Parties | Dirk KNOWLTON, Diana Knowlton, Derrick Sell, Donna Sell, Paul Stone, Martha Stone, Kenneth Febbo, Andrea Febbo, and Evelyn Anderson, Appellants, v. UNITED STATES BRASS CORPORATION, Shell Oil Company d/b/a Shell Chemical Company, and Hoechst Celanese Corporation, Appellees. Emery KOCHIE, Susan Kochie, Roger Allam, Kathy Marie Allam-Rogers, Robert H. Barnett, Donna Barnett, Michael Barry, Lucia Barry, Niraj Baxi, Bernadette Baxi, Steve Baxter, Karan Baxter, Thomas Beier, Dana Beier, David L. Blasi, Keith Brooks, Patricia Brooks, Richard A. Casas, Gail E. Casas, Carl Chandler, Kimberly Chandler, Clifford Chaney, Teresa Chaney, Andrea Chappa, Michael R. Cherry, Joni K. Cherry, Walter Clark, Ginger Clark, Anthony Damommio, Dorothy Damommio, William Daniel, Kathryn Daniel, Joe Davis, Merry Davis, Kenneth Davis, Jr., Susan Davis, Jimmy Dickinson, Barbara Dickinson, William Donzell, Cheryl Donzell, Mark Dugan, Sherry Dugan, Leroy Gant, Mae Gant, James Getto, Gwynn Getto, Clayton Gibbons, Ava Gibbons, William Gunderson, Jr., Tina Gunderson, Charlie Harrell, Jr., Mary Ann Harrell, Roger Hayes, Sandra Hayes, Bruce Hesse, Theresa Hesse, William Hill, Carolyn Hill, Carlos Hill, Trudy Hill, Randall Horton, Kim Horton, James Huckaby, Janice Huckaby, William Jonas, Linda Jonas, Richard Kamper, Gail Kamper, Blair Kilgallen, Rachel Kilgallen, Glenn Kondikoff, Janet Kondikoff, Scot Krewson, Kim Krewson, Scott Cummings Lamb, Donna Lamb, James Ledford, Robin Lent, Dolly Lent, Viraj Lertsirisakron, Penpit Lertsirisakron, Patrick Manning, Janet Manning, Stirling Mays, Cynthia Mays, James McClure, Claudia McClure, James Means, Kristine Means, Erik Meintser, Michelle Meintser, Bennie Miles, Kim Miles, Troy Mitchell, Jr., Holly Mitchell, Robert Nail, Maria Nail, Charles Ortiz, Patricia Ortiz, Chris Partezana, Patricia Partezana, Jeanne Patton, David Rawls, Evelyn Rawls, Bruce Robbins, Nancy Robbins, Bret Robertson, Margaret Robertson, Terry Rogers, Carol Rogers, Ronald Sherwinski, Joellyn Sh |
| Court | Texas Court of Appeals |
George M. Fleming, P.C., George M. Fleming, Mark A. Hovenkamp, James R. Moriarty, Houston, for appellants.
Nelson & Bingham, Kurt T. Nelson, Loreta Huffard Rea, Susman Godfrey, Tracy K. Christopher, H. Lee Godfrey, Vinson & Elkins, Daniel A. Hyde, Mary Lou Strange, Houston, for appellees.
Before SAM BASS, COHEN and WILSON, JJ.
*
In two separate appeals, the plaintiff homeowners 1 and United States Brass Corporation (U.S. Brass) appeal, respectively, from a summary judgment based on the affirmative defenses of res judicata and limitations, and a final judgment based on a jury verdict 2 entered by the court below.
The trial court entered a take-nothing summary judgment against the Knowlton plaintiffs in favor of the defendant companies, U.S. Brass, Shell Oil Company (Shell), and Hoechst Celanese Corporation (Celanese), which the Knowlton plaintiffs appeal. The trial court entered judgment on the jury verdict in favor of the Kochie plaintiffs against U.S. Brass, which U.S. Brass challenges. Additionally, the trial court did not award the Kochie plaintiffs double the first $1,000 of actual damages against U.S. Brass, which the Kochie plaintiffs assert as error under the Deceptive Trade Practices Act (DTPA). 3
This suit began when numerous plaintiff homeowners sued U.S. Brass, General Homes Corporation (General Homes), Shell, Celanese, Buckner Boulevard Plumbing Co., Inc. (Buckner), and Vanguard Plastics, Inc. (Vanguard). The plaintiff homeowners alleged these entities were responsible for placing a defective "polybutylene plumbing system" in their homes through either the design, manufacture, marketing, or sale of the plumbing system. The plaintiff homeowners' complaint alleged theories of negligence, strict liability, and violations of the DTPA.
According to the plaintiff homeowners, U.S. Brass designed and manufactured the plumbing system, including the polybutylene pipe and Celcon insert fittings that are fastened to the pipe by a crimp ring applied with a special crimp tool; Vanguard designed and manufactured a similar, competing polybutylene plumbing system that used either Celcon or Delrin (DuPont) insert fittings; Shell produced polybutylene as a by-product of the oil refining process; and Celanese produced the material, Celcon. The plumbing system of some of the plaintiff homeowners contained a mixture of Vanguard and U.S. Brass components. The plaintiff homeowners alleged that the plumbing system was defective, and that the defendants persuaded local code bodies to approve the plumbing system for new home construction, and builders, such as General Homes, to install the system in its homes based on the defendants' representations about the quality of the system and its component parts. Without such representations, the plaintiff homeowners stated General Homes would not have installed the plumbing system in its homes. The plaintiff homeowners purchased their homes either directly from General Homes, from individuals who had previously purchased their homes from General Homes, or as foreclosures.
After the trial court granted summary judgment in favor of Shell, Celanese, U.S. Brass, and General Homes against the Knowlton plaintiffs, the remaining plaintiff homeowners dismissed their claims against General Homes and Buckner, and nonsuited Shell and Celanese. Trial proceeded to a jury with U.S. Brass and Vanguard as the remaining defendants. The issues on liability for negligence and violations of the DTPA were submitted to the jury; the parties had previously stipulated the amount of actual damages. The plaintiff homeowners settled their claims with Vanguard after the court's charge had been read to the jury, closing arguments had been made, and the jury had been recessed with instructions to begin deliberating the next day.
The jury made findings favorable to 104 plaintiff homeowners and adverse to 12. 4 The 104 plaintiffs moved for judgment in accordance with the jury's verdict. Some elected to recover under the DTPA; the others elected to recover under negligence. The trial court signed a final judgment based on the jury findings and the plaintiffs' election of their theory of recovery. The trial court's judgment stated, "All other relief not expressly granted herein is denied." 5
U.S. Brass limited its appeal to 69 plaintiffs, the Kochie plaintiffs, for whom the jury made favorable findings. Of these 69 plaintiffs, 48 elected to recover under the DTPA (the DTPA plaintiffs), 6 and 21 elected to recover under negligence (the negligence plaintiffs). 7U.S. Brass v. Kochie et al. (Appeal No. 01-90-00825-CV)
U.S. Brass presents eight points of error, complaining generally that the DTPA plaintiffs were not consumers with respect to U.S. Brass; that the DTPA plaintiffs should not have been awarded damages in excess of actual damages because of U.S. Brass' settlement offer; that U.S. Brass should have been given a judgment credit based on the actual damages attributed to Vanguard, not on the Vanguard settlement amount; and that there was no evidence to support a finding of gross negligence against U.S. Brass. The DTPA plaintiffs present a cross-point of error, that it was error to deny them the mandatory doubling of the first $1,000 of actual damages.
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