Turner Construction Company of Texas v. Pharr-San Juan-Alamo Independent School District and Its board of trustees, No. 13-03-520-CV (TX 3/16/2006)
| Decision Date | 16 March 2006 |
| Docket Number | No. 13-03-520-CV.,13-03-520-CV. |
| Parties | TURNER CONSTRUCTION COMPANY OF TEXAS, Appellant, v. PHARR-SAN JUAN-ALAMO INDEPENDENT SCHOOL DISTRICT AND ITS BOARD OF TRUSTEES, Appellees. |
| Court | Texas Supreme Court |
On Appeal from the 93rd District Court of Hidalgo County, Texas.
Before Chief Justice VALDEZ and Justices HINOJOSA and YANEZ.
Appellant, Turner Construction Company of Texas, seeks reversal of the summary judgment granted to appellees, the Pharr-San Juan-Alamo Independent School District and its Board of Trustees (the "ISD"). We reverse the decision of the trial court and remand.
In September 1995, Turner, a construction company, contracted with the ISD to build a high school. The contract stipulated that the ISD would provide Turner with contract documents necessary to build the school. The ISD entered into a separate contract with an architect to design those documents, including the heating, ventilating, and air conditioning system ("HVAC"). Per terms of the contract, Turner was not liable to the ISD or the architect for "damage resulting from errors, inconsistencies or omissions in the Contract Documents unless [Turner] recognized such error, inconsistency or omission and knowingly failed to report it to the Architect."
Turner substantially completed the school according to the architect's plans in September 1997. Both Turner and the ISD now allege that the architect created a flawed HVAC design resulting in the accumulation of mold, mildew, and moisture inside the school. Turner alleges that the ISD was notified of the problem as early as the fall of 1997, but rejected the advice of its own engineers to perform remediation because it was too expensive.
During the 1999-2000 school year, students of the ISD began to complain of health problems because of the mold. In 2000, the ISD hired an environmental consultant to inspect the school. The consultant reported finding mold inside the HVAC system and conducted remediation. Beginning in May 2000, students and employees of the ISD began bringing personal injury suits from exposure to mold.
The ISD filed suit against Turner and other contractors on May 29, 2001 in cause no. C-1038-00-B. The ISD accused Turner of breach of contract, breach of fiduciary duty, breach of duty of good faith and fair dealing, and negligence with regard to execution of its duties under its contract to build the school. All parties settled, and on June 4, 2001, the court entered a take-nothing judgment against the ISD and discharged all defendants from any claim brought by the ISD. The court further ordered that all cross-actions and third-party actions previously filed in cause no. C-1038-00-B were barred. The settlement was under seal, but has since been revealed in part. Its contents are not disputed by the parties. It reads:
The parties to this Agreement acknowledge and confirm that by agreement and operation of law, this Agreement and settlement shall have no impact upon or relationship to the personal injury claims that have been asserted or may be asserted based in whole or in part upon the existence of mold, mildew, bacteria or fungi in the Project (the "Personal Injury Claims"). The parties further agree that they will not seek to introduce evidence of this Agreement as evidence of any admission, declaration against self interest or measure of proportionate responsibility in any pending or subsequently filed causes of action for such alleged personal injuries by any party not a party to this Agreement. The rights of any party to this Agreement to assert any defense, third party claim, indemnity claim, contribution claim, cross actions and/or any other cause of action against each other in connection with, in defense of or relating to the Personal Injury Claims shall not be and are not hereby waived, released, amended or altered by this agreement.
On May 5, 2000, a number of plaintiffs filed tort claims against the architect, Turner, and others in cause no. C-779-00-B. These plaintiffs alleged that negligent construction and installation had created the mold problem, which resulted in their illness. Hundreds more plaintiffs and plaintiffs-interveners joined the suit throughout August and September, 2001. On August 3, 2000, five plaintiffs filed similar claims against Turner in cause no. C-1365-00-G. The two causes were eventually combined.
On June 29, 2001, Turner filed a joinder of responsible third parties in cause nos. C-779-00-B and C-1365-00-G, casting itself as a third-party plaintiff and seeking to hold the ISD liable as a responsible third party under sections 33.003 and 33.004 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE Ann. § 33.003-004 (Vernon 2005). On September 22, 2002, Turner amended the joinder, suing the ISD as a responsible third party and as a third-party defendant for breach of contract.
Turner claimed the ISD's breach of contract with regard to the HVAC system exposed Turner to the personal injury suits. It requested unspecified direct and consequential damages, as well as attorney's fees. The ISD answered with a general denial.
On January 13, 2003, the ISD filed its first amended motion for summary judgment and no evidence motion for summary judgment. In that motion, the ISD asserted its entitlement to summary judgment under Texas Rules of Civil Procedure 166a(c) and 166a(j),1 arguing (1) the affirmative defenses of sovereign immunity, res judicata, compulsory counterclaim, and statute of limitations; and (2) no evidence that the ISD's sovereign immunity was waived. The ISD attached the previous pleadings filed in the first lawsuit, the contract documents and the certificate of substantial completion.
On April 24, 2003, the court entered its order granting the ISD's motion for summary judgment. The order does not state on which grounds the motion was granted, nor does it specify whether the grounds related to the general motion, the no-evidence motion, or both. On August 20, 2003, the court severed the ISD's summary judgment against Turner from the remaining claims in the suit and entered final judgment against Turner. Turner now appeals, claiming that the ISD was not entitled to summary judgment on any ground.
The function of a summary judgment is to eliminate patently unmeritorious claims and defenses, not to deprive litigants of the right to a jury trial. Alaniz v. Hoyt, 105 S.W.3d 330, 344 (Tex. App.-Corpus Christi 2003, no pet.). We review the evidence "in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences." KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.-Corpus Christi 2003, no pet.). In a traditional motion for summary judgment, the movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. Hoyt, 105 S.W.3d at 345. We affirm a trial court's ruling on a summary judgment motion if any theory advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Boren v. Bullen, 972 S.W.2d 863, 865 (Tex. App.-Corpus Christi 1998, no pet.). We review a traditional motion for summary judgment de novo to determine whether a party established its right to prevail as a matter of law. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.-Corpus Christi 2003, no pet.) (op. on reh'g). When the trial court does not specify the grounds it relied on in granting the motion, we uphold it on any valid ground asserted by the movant. See Bradley v. State ex rel. White, 990 S.W.2d 245, 247 (Tex. 1999).
In conjunction with and as a part of its traditional motion, the ISD also asserted that there was no evidence of several elements of Turner's claim against it. See TEX. R. APP. P. 166a(i). Turner claims that the ISD's no-evidence motion for summary judgment was improper because (1) it did not identify or challenge a specific element of any claim, and (2) a no-evidence motion for summary judgment cannot be based on affirmative defenses upon which the defendant bears the burden of proof.
When a no evidence motion for summary judgment does not specifically state which elements lack evidence, the motion should be treated as a motion for a traditional summary judgment. Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165, 168 (Tex. App.-Texarkana 2000, pet. denied); Weaver v. Highlands Ins. Co., 4 S.W.3d 826, 829 n.2 (Tex. App.-Houston [1st Dist.] 1999, no pet.).
A party should not file a no evidence motion for summary judgment based on an affirmative defense that it has the burden to prove at trial. See Thomas v. Omar Invs., Inc., 156 S.W.3d 681, 684 (Tex. App.-Dallas 2005, no pet.).
We have reviewed the ISD's no evidence claims and conclude that the school district raised the no evidence claim in support of its own asserted affirmative defense of sovereign immunity. See Amouri, 20 S.W.3d at 168. This is improper as a matter of law. See Thomas, 156 S.W.3d at 684; Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.-Houston [14th Dist.] 2003, no pet.). Thus, we will treat the ISD's motion as a traditional motion only.
Sovereign immunity, unless waived, protects the State of Texas, its agencies and its officials from lawsuits for damages absent legislative consent to sue. See Fed. Sign v. Tex. S. Univ., 951 S.W.2d 401, 405 (Tex. 1997); Griffin v. Hawn, 341 S.W.2d 151,152-53 (Tex. 1960). An independent school district is considered an agency of ...
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