Main Place Custom Homes, Inc. v. Honaker

• Decision Date: 23 March 2006
• Docket Number: No. 2,2
• Citation: 192 S.W.3d 604
• Parties: MAIN PLACE CUSTOM HOMES, INC. and Ron Smith, Appellants, v. Richard HONAKER and Ginger Honaker, Appellees.
• Court: Texas Court of Appeals

192 S.W.3d 604

MAIN PLACE CUSTOM HOMES, INC. and Ron Smith, Appellants, v. Richard HONAKER and Ginger Honaker, Appellees.

No. 2-04-275-CV.

Court of Appeals of Texas, Fort Worth.

March 23, 2006.

Rehearing Overruled April 20, 2006.

Cooper & Scully, P.C., R. Brent Cooper, Diana L. Faust, Devon J. Singh, Dallas, for appellants.

Timothy G. Chovanec, Fort Worth, Cheryl C. Turner, Bragg, Chumlea, McQuality, Mark S. McQuality, Dallas, for appellees.

PANEL B: LIVINGSTON, GARDNER, and WALKER, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

Introduction

This case involves a homeowners' suit against a builder and its owner in connection with a slope failure and related soil movement that occurred on the homeowners' property, damaging their property and home. In ten issues,¹ appellants contend that the trial court's failure to make additional requested findings of fact and conclusions of law prevents them from properly presenting their case to this court; that the evidence is legally and factually insufficient to support certain of the trial court's findings; that the trial court abused its discretion by ordering appellants to turn over "[t]he insurance policy, declarations, and all documents related [to] Great American Lloyds policy PAC-982-01-64-01" and "[a]ll insurance claims or causes of action of [appellants] pursuant to [that] policy"; that the trial court's award of prejudgment interest should be vacated; and that the mental anguish damages award should be reversed because it is not segregated between the appellees, Richard and Ginger Honaker. We modify the judgment in part and affirm it as modified.

Background Facts

In 1997, appellant Main Place Custom Homes, Inc. bought a lot in the Stonebriar subdivision of Frisco. Main Place was owned by appellant Ron Smith and his ex-wife Maxine Smith. Main Place built a custom luxury home on the property.² It was the first "million dollar" home that Main Place had built.

Appellees Richard and Ginger Honaker first saw the home in 1998 while it was under construction. They were impressed with the view from the back of the home, from which a steep embankment overlooks a creek and golf course.³ Richard was concerned about the steep slope of the embankment and asked Smith whether the home would slide off the hill. Smith told Richard that the "house and lot [are] as solid as they come," that "he built homes on solid lots," that the property "was stable and . . . there would be no problems with the house or property falling away," and that Smith was "used to building solid homes that did well." Smith made these representations before, during, and after the Honakers contracted to purchase the home. Richard testified that he relied on these statements in purchasing the property.

The Honakers signed an agreement to buy the property on February 15, 1998. They included a provision in the contract requiring Main Place to provide them with engineering reports about the retaining wall on the south end of the property and on the foundation. Smith provided them with two letters,⁴ both of which opined that the retaining wall was strong enough to withstand the pressure of the built-up foundation. Neither letter mentioned any problems with the soil on which the home was built. After receiving the letters, Richard asked Smith if any further reports were necessary about "the grading and the stability of the land and the home." Smith told Honaker that no further reports were necessary.

The Honakers closed on the property on November 23, 1998. In August 2000, the soil on the south side of the foundation began cracking and pulling away from the back porch. Smith came to the house at Richard's request to look at the cracking. Smith told Richard that the problem was "normal settling" and to fill the area with sand. He also told Richard that the cracking was not a problem.

On November 6, 2000, the slope behind the home failed and caused a major landslide. Smith came out to look at the damage and told Richard that the slope failure would not damage the home. Over the next several months, however, the property sustained damage related to the slope failure, such as cracking in the pool, cracking in the drywall, damage to the retaining wall, a shattered picture window, cracked tile, heaving of the foundation, and further movement in the soil. The Honakers had to hire engineers to investigate the problems. They were also forced to pay damages to their homeowners' association because the contractor they hired to fix the retaining wall encroached on the homeowners' association's easement. Richard testified that the damage to the home was so great — and was continuing at such a rate — that there was a stigma attached to the home that prevented the Honakers from selling it, except for much less than the property was worth.

The Honakers eventually discovered that the home's sprinkler system had been improperly connected to the city water hookups, causing thousands of gallons of water to leak under the home. The engineering reports they obtained advised that this water leakage would not have been a problem but for the soil that the home was built on. The home was built at the joining of two different types of soil: one being stable and the other being very unstable. The joining of the two, combined with the excessive amount of water, caused movement in the soil that the home was built on.

Several months after discovering the sprinkler leak, the Honakers filed suit against appellants; Stonebriar Residential Joint Venture, Hillwood/Stonebriar Residential, Ltd., and Hillwood Property Company f/k/a Hillwood Clubs, Inc., the initial developers of the property (collectively referred to as the developer); Larry Smith, L.F.S. Construction, Inc., and L.F.S. Systems, Ltd., and Larry F. Smith, Inc., the contractor whom Richard hired after the slope failure to repair the retaining wall; Marc Wilson d/b/a Texas Green, the subcontractor who installed the sprinkler system; and Chubb Lloyds Insurance Company of Texas, the Honakers' homeowners' insurance company. The Honakers settled their claims against all parties except appellants, and the trial court dismissed the claims against those parties with prejudice. Thus, the Honakers proceeded to trial on their DTPA, fraud in a real estate transaction, breach of warranty, negligent misrepresentation, and negligence claims against Main Place, and DTPA, fraud in a real estate transaction, negligent misrepresentation, and negligence claims against Smith.

After a bench trial, the trial court found in favor of the Honakers and signed a judgment awarding them approximately $800,000. In addition to awarding the Honakers damages, prejudgment interest, and attorney's fees for both the trial and any appeals, the judgment ordered appellants to deliver to the Honakers "[t]he insurance policy, declarations, and all documents related [to] Great American Lloyds policy PAC-982-01-64-01" and "[a]ll insurance claims or causes of action of [appellants] pursuant to Great American Lloyds policy PAC-982-01-64-01." It further ordered that the Honakers "shall be assigned to and have the right to pursue action against Great American Lloyds policy PAC-982-01-64-01 as a third party beneficiary and assignee of [appellants]."

Appellants filed a request for findings of fact and conclusions of law. On July 22, 2004, the trial court filed findings of fact and conclusions of law, and appellants responded by requesting additional findings of fact and conclusions of law. The trial court signed an amended final judgment on September 7, 2004, reducing the damages originally awarded by $30,000, the amount of a settlement credit for the settlements with the developer and Marc Wilson. Appellants then filed a further additional request for findings of fact and conclusions of law based on the amended final judgment. The trial court signed amended findings of fact and conclusions of law on October 4, 2004 and March 15, 2005. Those amended findings include some, but not all, of the additional findings requested by appellants.

Findings of Fact and Conclusions of Law

In their first issue, appellants contend that the trial court erred by failing to make all of the additional findings of fact and conclusions of law that they requested based on the amended final judgment because the trial court's failure to do so prevents them from adequately presenting their appeal. Specifically, appellants complain about the trial court's failure to quantify the amount of damages caused by each appellant under each theory of liability.

A trial court is required to file findings of fact and conclusions of law within twenty days after a timely request is made. See TEX.R. CIV. P. 297. Upon a party's timely request for additional findings, the trial court "shall file any additional or amended findings and conclusions that are appropriate." TEX.R. CIV. P. 298. Additional findings are not required if the original findings and conclusions "properly and succinctly relate the ultimate findings of fact and law necessary to apprise [the party] of adequate information for the preparation of [the party's] appeal." Balderama v. W. Cas. Life Ins. Co., 794 S.W.2d 84, 89 (Tex.App.-San Antonio 1990), rev'd on other grounds, 825 S.W.2d 432 (Tex. 1991); see Jamestown Partners, L.P. v. City of Fort Worth, 83 S.W.3d 376, 386 (Tex.App.-Fort Worth 2002, pet. denied)

; In re Marriage of Morris, 12 S.W.3d 877, 886 (Tex.App.-Texarkana 2000, no pet.); Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.-Houston [1st Dist.] 1992, no writ). An ultimate fact is one that would have a direct effect on the judgment. Morris,

12 S.W.3d at 886. If the refusal to file additional findings does not prevent a party from adequately presenting an argument on appeal, there is no reversible error. Jamestown Partners, 83 S.W.3d at 386; Johnston v. McKinney Am., Inc., 9 S.W.3d 271, 277 (Tex.App.-Houston [14th Dist.] 1999, pet. denied). If the requested findings will not result...