Pleasant Grove Indep. Sch. Dist. v. Fieldturf USA, Inc.

• Decision Date: 03 April 2020
• Docket Number: No. 06-19-00022-CV,06-19-00022-CV
• Citation: 634 S.W.3d 84
• Parties: PLEASANT GROVE INDEPENDENT SCHOOL DISTRICT, Appellant v. FIELDTURF USA, INC. and Altech, Inc., Appellees
• Court: Texas Court of Appeals

634 S.W.3d 84

PLEASANT GROVE INDEPENDENT SCHOOL DISTRICT, Appellant

v.FIELDTURF USA, INC. and Altech, Inc., Appellees

No. 06-19-00022-CV

Court of Appeals of Texas, Texarkana.

Date Submission: December 30, 2019

Date Decided: April 3, 2020

Rehearing Denied June 10, 2020

Matthew R. Pearson, Lead Counsel, Valerie L. Cantu, Pearson Legal, PC, San Antonio, Brendan K. McBride, The McBride Law Firm, San Antonio, for Appellant.

E. Leon Carter, Lead Counsel, Joshua Bennett, O. Rey Rodriguez, Courtney Barksdale Perez, J. Robert Arnett II, Carter Arnett, Dallas, for Appellee FieldTurf USA Inc.

Jeffrey C. Elliott, Elliott Law Firm, Texarkana, for Appellee Altech, Inc.

Before Morriss, C.J., Burgess and Stevens, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Chief Justice Morriss To build a new football stadium, Pleasant Grove Independent School District contracted with prime contractor Altech, Inc., which in turn contracted with subcontractor Sports Constructors, which contracted, finally, with FieldTurf USA for the manufacture and provision of an artificial-turf field bearing the product name Prestige XM-60 with Duraspine fibers. Though the field's life was purported to be ten to twelve years and was warranted for eight years, the field started degrading within five years. This turf struggle resulted, producing various claims among Pleasant Grove, Altech, and FieldTurf. The trial court granted summary judgment in favor of Altech and partial summary judgment in favor of FieldTurf as to Pleasant Grove's fraud claims. Pleasant Grove's remaining claim against FieldTurf proceeded to trial, where the jury, based on its finding that FieldTurf breached its warranty, awarded Pleasant Grove $175,000.00 in actual damages. Both Pleasant Grove and FieldTurf appealed.

Pleasant Grove argues that the trial court erred in (a) granting summary judgment for Altech because Altech's motion was defective and there were material issues of fact in dispute, (b) granting summary judgment for FieldTurf on Pleasant Grove's fraud and fraud in the inducement claims, (c) improperly instructing the jury as to the measure of damages, and (d) not granting a partial new trial as to attorney fees.

In its cross appeal, FieldTurf contends that the trial court erred by not granting judgment notwithstanding the verdict because (a) Pleasant Grove failed to present evidence that the warranty was breached, (b) Pleasant Grove's exclusive remedy under the warranty was repair or replacement, (c) Pleasant Grove failed to plead or prove that the warranty failed of its essential purpose, (d) there was legally insufficient evidence of notice and opportunity to cure, and (e) there was no evidence of damages.

In Part A of this opinion, we explain why we reverse Altech's summary judgment against Pleasant Grove as to the G-Max warranty claim only, because a fact issue exists by virtue of the summary-judgment evidence regarding whether Altech breached its warranty that the field would meet G-Max testing specifications. That reversal results from the following two conclusions: although (1) Altech's motions for summary judgment were not facially defective, (2) the G-Max report raises an issue of material fact.

In Part B of this opinion, we explain why we affirm FieldTurf's partial summary judgment against Pleasant Grove, based on the following three conclusions: although (B1) FieldTurf has failed to negate Pleasant Grove's reliance and therefore cannot claim entitlement to summary judgment on that basis, (B2) there is no summary-judgment evidence of an affirmative material misrepresentation to Pleasant Grove, and (B3) there is no summary-judgment evidence that creates any duty of FieldTurf to disclose.

In the final paragraph of this opinion, we conclude that a remand for new trial is the necessary result, restoring the parties to the status quo at the time of the summary judgment rulings and having the trial court proceed from that point forward in light of this opinion.

Factual and Procedural Background

Pleasant Grove contracted with Altech to be the general contractor for the construction of its new high school football stadium and the installation of a synthetic turf field. Afterward, Pleasant Grove considered several different turf manufacturers and several different turf products. According to a written declaration and deposition testimony, which ultimately were excluded by the trial court, James Kevin Davis, then Pleasant Grove's Athletic Director and head football coach, had several meetings and telephone conversations with FieldTurf representatives in late 2008 or early 2009, who told him that the Duraspine fiber comprising FieldTurf's Prestige XM-60 synthetic turf was available in the school's required colors of green, white, gold, and black; that it was more durable; that it would stay erect longer than its competitors’ products; that it had better aesthetics than its competitors’ products; and that the FieldTurf field would last ten to twelve years. Relying on those representations, Davis recommended the Prestige XM-60 field containing Duraspine fiber FieldTurf product to the Pleasant Grove Board, which, in the spring of 2009, almost a year after contracting with Altech, selected the Prestige XM-60 with Duraspine as their new synthetic-turf field. Altech had previously subcontracted the field's installation to Sports Constructors, Inc., which, after Pleasant Grove chose the Prestige field, obtained the turf materials and/or labor from FieldTurf to construct and install the field.

The field was installed between August and October 2009. FieldTurf provided an eight-year limited warranty on the artificial-turf field. FieldTurf's Manufacturer's Limited Warranty for the field provided:

FIELDTURF warrants that if Prestige XM-60 for football, soccer, synthetic turf proves to be defective in material or workmanship, resulting in a loss of pile height greater than 50%, during normal and ordinary use of the Product for the sporting activities set out below or for any other uses for which FieldTurf gives its written authorization, within 8 years from the date of completion of installation, FieldTurf will, at FieldTurf's option, either repair or replace the affected area without charge

The warranty period officially began on or about April 14, 2010.

Around June 2014, Pleasant Grove personnel first notified FieldTurf that the field was significantly degrading and its fibers were becoming brittle, causing color loss and loss of traction. In July, a FieldTurf representative, Ross Wittig, personally walked the field and took photos. Afterward, in an "off the record" conversation with Josh Gibson, who had, in 2014, replaced Davis as coach and Athletic Director, and Steve Shatto, Pleasant Grove's maintenance director, Wittig said that the field was "in bad condition" and that:

FieldTurf has multiple fields that are failing. They're failing at -- at a large rate all over the United States. There are some schools that are getting these fields replaced; that they've just started turning down, you know, people. And so his advice to us was that the squeakiest wheel -- those were his words: the squeakiest wheel is going to get attention, and -- and, you know, we needed to raise a fuss about our product.

In Wittig's email to FieldTurf, he confirmed that "[t]here [were] some safety concerns," that the gold-colored fibers in the end zones "ha[d] about disappeared," that "[m]any inlays [were] separating," and that the field's white lines were beginning to disappear.

After continued complaints about the field, FieldTurf's designated Duraspine field evaluator, Todd Bresee, inspected the field in September 2014, and in his report,¹ he concluded that the field was "showing signs of accelerated wear in all the fiber colors" between the football field's numbers, that there were "large amounts of broken fiber on the surface," and that the "gold fiber is broken completely down to the top of the infill." He found that the green fibers that comprised the majority of the field were in poor or fair condition, that all the gold fibers were in poor condition, that only the black fibers found in the end zone and field logo were found to be in good condition, and that none of the fibers were found to be in very good or excellent condition. Bresee's report to FieldTurf included the following comments:

The field has a large amount of broken fiber on it. The AD showed me pics of this fiber clogging up his players cleats when the field is wet. Owner is also upset with the amount of fiber that has to be cleaned out of the locker room each day. I was on my knees taking pictures and when I stood up I was covered with the green field fiber, Owner took pics of my pants covered with the fiber. This field needs to be cleaned and loose fiber removed.

Gibson testified that the field was the worst he had ever seen, that it was covered in broken and split fibers, and that it had become a safety issue due to the layer of broken fibers making the field slippery. Gibson testified that Bresee agreed with him that the field was in "bad shape."

In the last three months of 2014, Pleasant Grove contacted FieldTurf complaining of the field's premature wear and degradation and demanding that FieldTurf replace the field under warranty. In January 2015, FieldTurf Customer Service Director, Julie Paquin, responded to Pleasant Grove's requests with an email that claimed that inspection found the field to be in "fair/good condition," that the field problems were merely cosmetic and presented no playability or safety hazards, and that the field merely needed a "laymor scrape" process that would remove some of the rubber infill at the base of the fibers to expose more of the fibers. Pleasant Grove rejected the offered process, argued that the laymor scrape would improve only the cosmetic look of the field for a short period of time, and demanded that FieldTurf honor the warranty and replace the field. In its February 12, 2015, response, FieldTurf refused to replace...