White Budd Van Ness Partnership v. Major-Gladys Drive Joint Venture
| Decision Date | 06 September 1990 |
| Docket Number | No. 09-89-074,MAJOR-GLADYS,09-89-074 |
| Citation | 798 S.W.2d 805 |
| Parties | The WHITE BUDD VAN NESS PARTNERSHIP, Appellant, v.DRIVE JOINT VENTURE, Appellee. CV. |
| Court | Texas Court of Appeals |
Guy Lipe, Vinson & Elkins, Houston, for appellant.
Jon B. Burmeister, Moore, Landrey, Garth & Jones, Beaumont, for appellee.
Before BROOKSHIRE and BURGESS, JJ., and SMITH, J. 1 , (Ret.).
This is a suit to recover damages from an architectural firm, Defendant/Appellant, for its alleged failure to properly investigate and advise Plaintiff/Appellee concerning the use of a specific type of tile in the construction of a shopping center. Plaintiff/Appellee joined the contractor as a defendant for improper installation of the tile. Prior to trial, Plaintiff/Appellee settled with the contractor, entered into a so-called "Mary Carter" agreement with the contractor, and obtained a dismissal of the contractor from the suit. Based on jury findings, the court entered judgment for Plaintiff/Appellee against Defendant/Appellant in the sum of $498,157.40, plus appellate attorneys' fees.
Plaintiff/Appellee, a small group of persons, formed the Major-Gladys Drive Joint Venture to develop certain properties into a shopping center. Plaintiff/Appellee was not knowledgeable in the field of architecture and entered into a contract with Defendant/Appellant to serve as architects.
After hiring Defendant/Appellant and receiving cost estimates, it became apparent to Plaintiff/Appellee that it needed to cut costs in the building of the shopping center. "C-Tile" was less costly than the proposed material but the parties were not familiar with its usage, characteristics or costs. The use of "C-Tile" was suggested as a possible alternative. Defendant/Appellant was not familiar with "C-Tile" but looked into the product. As a result of its inquiries, Defendant/Appellant advised the Plaintiff/Appellee that the "C-Tile" could be used on the project and would be less costly. Relying on Defendant's/Appellant's advice, Plaintiff/Appellee approved the use of "C-Tile" on the project. The end result was that the "C-Tile" started coming loose and eventually had to be replaced.
Problems arose with the "C-Tiles". The "C-Tiles" were not sticking down. There were other problems with the "C-Tile". The tile had problems with weight bearing. The lack of weight-bearing quality resulted in the "C-Tile" becoming damaged. This "C-Tile" had not been used on other projects; it was a new product.
A witness who had been formerly associated with White Budd Van Ness testified that there were a number of problems with the "C-Tile". This witness said that he would not have put any tile in the weight-bearing areas had it been quarry tile or "C-Tile". He suggested, instead, the use of concrete or Bomanite. This witness repeated that he would not have put any kind of tile in the weight-bearing areas, including, of course, "C-Tile". He agreed the "C-Tile" was a fairly new product. The "C-Tile" was a substitute for Bomanite. The contractor said he could not install Bomanite. A non-architect, with White Budd Van Ness, at one point, advised the Joint Venturers that the Bomanite could not be installed. The Plaintiff's/Appellee's contentions were that the architect did not adequately investigate the "C-Tile" and its characteristics. This witness and the licensed architect in charge of the shopping center reviewed the tile situation. The witness stated that it was agreed between him and the architect that tile of any type should not be used in the trucking area and that a concrete strip was installed at about the same time that the "C-Tile" change order was approved. This witness testified that the members of the Joint Venture did not have knowledge of an architectural nature. The problem with the "C-Tile" triggered the litigation. Plaintiff/Appellee filed the present lawsuit against all parties involved but, as noted above, the only defendant left in the lawsuit by time of trial was the Defendant/Appellant.
The jury, in response to certain special issues or questions, found that the architects' partnership represented that the "C- Tile" and/or architectural services had sponsorship, approval, characteristics, ingredients, uses, benefits or qualities which the tile, or the architectural services, did not have; that the architects represented that the "C-Tile" and other architectural services were of a particular standard, quality or grade, of which they were not; represented that the architectural agreement (contract) conferred or involved certain rights and remedies, which the agreement did not have; the architects failed to disclose to the Venture information concerning the "C-Tile", and/or architectural services which were known at the time of the execution of a certain, crucial change order; and, that such failure to disclose and to inform the Joint Venture of such information was intended to induce the Plaintiff/Appellee into a transaction which the Plaintiff/Appellee would not have entered into if such correct information had been disclosed. The jury found Defendant/Appellant Partnership engaged in unconscionable action or a course of action. The jurors found the Partnership committed the acts and failures immediately listed above and each was a producing cause of damages to the Plaintiff's/Appellee's venture.
In addition, the jury found that the architectural firm approved tile that was not suitable for the purpose for which the tile was to be used, while having reason to know of such purpose and of the Plaintiff's/Appellee's reliance upon the Defendant's/Appellant's skill or judgment to approve suitable tile. In answer to a separate question, the jury found that the Partnership breached in several respects its contract with the Plaintiff/Appellee and that the several breaches were each a proximate cause of damages. The special verdict determined that, in breaching the contract, the architects were negligent in performing certain services; and, specifically, that the partnership was negligent in the investigation of the tile, in advising the Plaintiff/Appellee as to the tile's proper use, in the proper preparation of plans and specifications, and in inspections of the installation of the tile. Also, a finding was returned that the Partnership failed to perform architectural services pertaining to the "C-Tile" in a good and workmanlike manner.
Gary Clark Contractors, Inc., was a Defendant. The jury found that Contractors, Inc., failed to comply with its agreement with the Plaintiff/Appellee and that the failure was a proximate cause of the damages and that Contractors, Inc., caused 20% of the damages and that The White Budd Van Ness Partnership caused 80%.
Significantly, in Special Issue No. 16, the jury found that the Van Ness Partnership knowingly made some of the representations or knowingly engaged in the conduct inquired about in Special Issue No. 1 set out below, in summary:
Basically, then, this cause of action can be described as an architect malpractice suit.
The Appellant argues that the liability provisions of TEX.BUS. & COM.CODE ANN. Sec. 17.46(b) (Vernon 1987) have no application to professional architects' services; hence, the trial court erred in overruling the Appellant's Motion for Directed Verdict and for a Judgment Notwithstanding the Verdict.
As to Special Issues No. "1 A", "1 B", and "1 C", Appellant tacitly concedes, we think, that the trial court submitted these three issues to the jury as alleged violations of three of the so-called "laundry-list" provisions of TEX.BUS. & COM.CODE ANN. Sec. 17.46(b) (Vernon 1987), of the Texas Deceptive Trade Practices Act, and, especially, Sec. 17.46(b), (5), (7), and (12). TEX.BUS. & COM.CODE Sec. 17.46 (Vernon 1987)...
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