Sheffield Dev. Co. v. Carter & Burgess, Inc.

• Court: Texas Court of Appeals
• Writing for the Court: TERRIE LIVINGSTON
• Decision Date: 21 December 2012
• Docket Number: NO. 02-11-00204-CV,02-11-00204-CV
• Citation: Sheffield Dev. Co. v. Carter & Burgess, Inc., NO. 02-11-00204-CV (Tex. App. Dec 21, 2012)
• Parties: Sheffield Development Company, Inc. v. Carter & Burgess, Inc.

Sheffield Development Company, Inc.
v.
Carter & Burgess, Inc.

NO. 02-11-00204-CV

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

DELIVERED: December 21, 2012

From the 153rd District Court
of Tarrant County (153-252953-11)
Opinion by Chief Justice Livingston
JUDGMENT

This court has considered the record on appeal in this case and holds that there was no error in the trial court's judgment. It is ordered that the judgment of the trial court is affirmed.

It is further ordered that appellant Sheffield Development Company, Inc. shall pay all of the costs of this appeal, for which let execution issue.

SECOND DISTRICT COURT OF APPEALS

By _
Chief Justice Terrie Livingston

Page 2

NO. 02-11-00204-CV

SHEFFIELD DEVELOPMENT APPELLANT COMPANY, INC.

V.

CARTER & BURGESS, INC. APPELLEE

FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
MEMORANDUM OPINION¹

This is an appeal from the trial court's final judgment for Carter & Burgess, Inc. (C&B), which incorporates two partial summary judgments the trial court had granted in C&B's favor on all claims brought against it by Sheffield Development Company, Inc. (SDC). We affirm.

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Background

Morrison Homes, a home builder, sued SDC, the developer of a residential subdivision in Tarrant County, and others on April 27, 2007, bringing claims against SDC for breach of contract; breach of warranty; negligence; negligent misrepresentation; negligent hiring or entrustment, or both; and statutory fraud in a real estate transaction. Specifically, Morrison Homes sought to hold SDC liable for postconstruction damages to the homes it built on the lots that SDC sold it, contending that SDC did not deliver the lots to Morrison with the proper grading and drainage, thus causing postconstruction soil movement and damage. On November 23, 2009, SDC filed an original third-party petition against C&B and other subcontractors involved in the development of the subdivision;² C&B had provided engineering and surveying services pertaining to the grading of the lots in the subdivision. In its petition against C&B, SDC alleged that C&B was liable for contribution under chapter 33 of the civil practice and remedies code to the extent Morrison recovered against SDC and for negligence, negligent misrepresentation, breach of contract, breach of warranty, and breach of fiduciary duty and duty of good faith and fair dealing.

C&B moved to dismiss the suit on December 18, 2009 under section 150.002(a) of the civil practice and remedies code, claiming that the certificate of

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merit provided by SDC's engineer, Robert Adams, was inadequate because he is an engineer rather than a surveyor. Tex. Civ. Prac. & Rem. Code Ann. § 150.002(a) (West 2011). The trial court denied the motion to dismiss on January 12, 2010.

C&B filed a combined traditional and no-evidence motion for summary judgment on June 1, 2010 on SDC's contribution claim. The same day, it filed a combined traditional and no-evidence motion for summary judgment on SDC's breach of contract, breach of warranty, negligence, negligent misrepresentation, and breach of fiduciary duty and good faith and fair dealing claims. The trial court eventually granted both motions in October 2010 by letter ruling. The trial court signed a final take-nothing judgment on October 25, 2010.³

Discovery-Related Issues

In its seventh and eighth issues, SDC complains that the trial court erred by granting either a traditional or no-evidence summary judgment on all of its claims before an adequate time for discovery had passed. In its ninth issue, SDC challenges the trial court's order granting C&B's motion to compel, which SDC claims prevented it from conducting any further material discovery, including scheduled depositions of C&B witnesses.

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Motion to Compel

Applicable Facts

The trial court denied C&B's motion to dismiss in January 2010, two months after SDC sued C&B the second time. SDC filed a designation of expert witnesses on January 22, 2010. It also filed a motion to extend the deadline to designate experts the same day. In its motion, SDC asked for an extension of the designation deadlines because it had not been able to depose any of the third-party defendant witnesses. The trial court then signed an order extending the deadline for another three months, to April 16, 2010.⁴

C&B filed its first motion to compel on February 23, 2010. In its motion, C&B claimed that SDC had not fully answered the following interrogatory number 5:

Please identify/specify each and every lot in the Development which you contend deviated from or failed to conform to the approved grading and drainage plans. For each such lot, please identify and specify:

(a) the specific nature of the alleged deviation or non-conformity;
(b) the date(s) on which the alleged deviation or non-conformity existed;
(c) the person(s) and/or event(s) which you contend caused or contributed to the alleged deviation or non-conformity;
(d) the date the alleged deviation or non-conformity was discovered and by whom; and
(e) any and all steps taken to correct or remedy the alleged deviation or non-conformity.

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SDC had objected to the interrogatory, claiming that it was premature, that SDC would not be able to answer the interrogatory until it had completed its discovery, and that the question improperly required SDC to marshal its proof. SDC then identified "generally" thirty-six lots in the subdivision that "may have deviated from or failed to conform to the approved grading and drainage plans." [Emphasis added.] SDC further stated that it did

not know with specificity the date(s) on which the alleged deviation or non-conformity existed. SDC contends each party to this lawsuit may have caused or contributed to the alleged deviation or non-conformity. SDC does not know with specificity the date the alleged deviation or non-conformity was discovered and by whom. SDC is unaware if any parties have taken any steps to correct or remedy any alleged deviation or non-conformity.

The day after it filed its motion to compel, C&B filed a motion to quash the depositions of Gary Sheffield and C&B's engineer Ed Oram because SDC had not fully answered interrogatory 5. According to C&B, it had "engaged in an incredibly aggressive effort to obtain and review documents (over 30,000 pages) to prepare for depositions," and SDC had planned "a massive 'document dump'" the night before the scheduled depositions the first week in March 2010. C&B contended that it had propounded discovery on SDC in January 2010 after it filed its answer and that it could not adequately prepare for the depositions until it had received an adequate answer to interrogatory 5.

On March 9, 2010, the trial court signed an order requiring SDC to more fully respond to the interrogatory on or before March 16, 2010. The order also

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states that per the parties' agreement, the Oram and Sheffield depositions would take place on March 25 and 26, 2010.

Also in early March 2010, SDC obtained a trial court order for access to twenty-one of the lots for testing and engineering purposes; all access was to be granted no later than April 22, 2010.

On April 8, 2010, SDC filed an opposed motion for continuance, asking for more time to conduct discovery⁵ because it was still having trouble obtaining access to all of the lots to perform required inspections and tests. The motion did not mention the Sheffield and Oram depositions. C&B responded, contending that the motion was not properly verified and that granting it would assist SDC in what it characterized as a fishing expedition. The trial court denied the motion for continuance but extended the expert designation deadlines for another forty-five days, until June 1, 2010.

On April 9, 2010, C&B filed its second motion to compel, in which it alleged that SDC's April 8, 2010 response to interrogatory 5 was still incomplete. That response stated,

Subject to and without waiving any objections, if Plaintiff's assertion that the land was not developed pursuant to the design documents and the land was not delivered in a condition suitable for construction of residences is true, then C&B failed to meet the applicable standard(s) of care. Generally, the following lots may

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have deviated from or failed to conform to the approved grading and drainage plans:
[list of thirty-six lots]
SDC's experts are investigating these lots to determine which lots may deviate from or fail to conform to the approved grading and drainage plans and, if so, how they deviate from or fail to conform to the approved grading and drainage plans.
Specifically, SDC was present for a site visit at 9621 Courtright on March 17, 2006. . . . SDC observed a walkway around the perimeter of the north and east sides of the home that trapped water next to the house and gutters which discharged the roof water between the walkway and the slab. The neighbor above and behind 9621 Courtright also installed a pool. SDC observed saturated soil located off the southwest corner of the house. At this site visit, SDC did not observe any conditions it believed to be an obvious deviation from the grading or drainage plans. SDC contends it

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