Introduction. A couple of years ago this blog discussed the construction defect case, Pleasant Grove Indep. Sch. Dist. v. FieldTurf USA, Inc., in which the Pleasant Grove Independent School District sued its general contractor, Altech, Inc., and the manufacturer, FieldTurf USA, Inc., in connection with the installation of a defective artificial turf system as part of in the construction of Pleasant Grove’s new football stadium. 06-19-00022-CV, 2020 WL 1646633, at *1 (Tex. App.—Texarkana Apr. 3, 2020, no pet. h.). The trial court granted Altech’s motion for summary judgment dismissing Pleasant Grove’s claims against Altech. The case proceeded to trial only on Pleasant Grove’s claims for breach of warranty against FieldTurf, and the jury awarded $175,000 in favor of Pleasant Grove. On appeal, the Court of Appeals reversed the summary judgment rendered in favor of Altech and remanded the case for a new trial of Pleasant Grove’s breach of warranty/contract claims against both Altech and FieldTurf. The appeal has finally made its way to the Supreme Court of Texas (SCOTX). This article discusses the decision by SCOTX to reverse the Court of Appeals and uphold the trial court’s summary judgment in favor of Altech. See FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., 642 S.W.3d 829, 830 (Tex.2022).
Background. In 2008, Pleasant Grove retained Altech as its general contractor to build a new high school football stadium with an artificial turf field. Altech’s subcontractor installed the Prestige XM-60 turf system manufactured by FieldTurf. The artificial turf was installed in 2009, and FieldTurf expressly warranted, for 8 years, that if the height of the artificial turf decreased by 50% or more, during normal and ordinary use, FieldTurf would repair or replace the defective turf.
Altech warranted in its contract with Pleasant Grove that its work would be free from defects not “inherent in the quality permitted and that the Work will conform to the requirements of the Contract documents.” Those requirements included that the shock pad would meet the following criteria:
- G-Max rating range 80-120, ASTM F355;
- G-Max Range 100-140 ASTM F355; and
- Field surface G-Max within the above rages for the life of the synthetic turf system warranty.
In 2014, Pleasant Grove notified FieldTurf of significant problems with the turf and demanded that the turf be replaced under the warranty. FieldTurf offered to perform a “LayMor Scrape” to remove some of the rubber infill at the base of the fibers to expose more of the fibers. Pleasant Grove rejected this offer and filed suit against both Altech and FieldTurf.
Before the case proceeded to trial, both Altech and FieldTurf filed motions for summary judgment with the trial court. Altech requested that the trial court enter a total summary judgment as a matter of law in its favor, and the trial court granted the motion. Field Turf requested the trial to enter a partial summary judgment in its favor on Pleasant Grove’s fraud claims only, and the trial court granted the motion. The case proceeded to jury trial on Pleasant Grove’s breach of warranty claims against FieldTurf. The jury returned a verdict in the amount of $175,000 in Pleasant Grove’s favor. On appeal, the Court of Appeals overturned the trial court’s order granting summary judgment in favor of Altech and remanded the case to the trial court for a new trial. The parties filed a petition for SCOTX to review the decision by the Court of Appeals. The primary substantive issue addressed by SCOTX pertained to the Court of Appeals overturning the summary judgment in favor of Altech.
Legal analysis. The basis of Altech’s traditional and no-evidence motion for summary judgment was that it “played no role in selecting the allegedly defective turf product—[Pleasant Grove] chose the Prestige XM-60 and approved it as being compliant with the construction specifications—and that Altech made no guarantee or warranty that the product would be free from inherent defects or other defects permitted by the contract documents.” Id at 833. Pleasant Grove responded that the contract did not exempt Altech from liability for inherent defects and it imposed liability upon Altech for the acts of downstream contractors. Further, the turf of the football field did not conform to the contract documents in that it “failed to maintain a G-Max rating less that 140 through its first eight years.” Id at 833. In support of this, Pleasant Grove attached a report from its expert to its summary judgment response “indicating an average field G-Max rating of 166.5 and individual results between 143.6 and 188.4, all exceeding the contractually mandated maximum of 140.” Id at 832–833.
Altech objected to the expert report because it (1) failed to document that proper testing had been done or that the testing device was calibrated, and (2) Pleasant Grove failed to properly authenticate the report. Further, Altech contended that Pleasant Grove spoliated evidence by removing the turf from the football field before Altech had the opportunity to inspect and test it. At the summary judgment hearing, the trial court stated on the record that it was sustaining the objection, granting the summary judgment motion, and dismissing Pleasant Grove’s claims against Altech with prejudice. The trial court subsequently signed a written order granting the summary judgment and dismissing Pleasant Grove’s claims against Altech with prejudice. However the written summary judgment order did not state that the trial court sustained Altech’s Grove’s objection to the expert report.
The Court of Appeals determined that, since the trial court’s ruling sustaining Altech’s objections was not included in a written order, the ruling should not be considered. Therefore, the expert report was part of the summary judgment evidence presented by Pleasant Grove in support of its claims against Altech. As a result, the trial court erred in entering the summary judgment dismissing Pleasant Grove’s claims against Altech. In reviewing the decision by the Court of Appeals, SCOTX held that the trial court’s ruling did not need to be included in a written order since it was already recorded in the Court Reporter’s record of the summary judgment hearing. Thus, it was the Court of Appeals who erred in relying on this report to overturn the trial court’s summary judgment . As a result, SCOTX reversed the Court of Appeals decision and upheld the trial court’s summary judgment order dismissing Pleasant Grove’s claims against Altech.
Conclusion. As can be seen from this case, construction defect disputes are often highly technical. Thus, at some point, the plaintiff will be required to present competent expert witness reports and testimony to support its claims. Otherwise, the plaintiff’s claims, like those of Pleasant Grove, will be dismissed before the case is ever presented at trial to a judge or jury.