Gleason & Messenger Farms, LLC v. James Scott D/B/A Lonestar Steel Buildings

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00169-CV

GLEASON & MESSENGER FARMS, LLC, APPELLANT

V.

JAMES SCOTT D/B/A LONESTAR STEEL BUILDINGS, APPELLEE

On Appeal from the 31st District Court
Wheeler County, Texas
Trial Court No. 14343, Honorable Steven R. Emmert, Presiding

May 4, 2026
MEMORANDUM OPINION
Before DOSS and PRATT, JJ., and QUINN, S.J.1

Contracts to build three metal buildings underlie this appeal. Gleason &

Messenger Farms, LLC (Gleason), contracted with James Scott, d/b/a Lonestar Steel

Buildings (Lonestar), to perform the construction. Gleason intended to use building 1 for

storage, while buildings 2 and 3 were intended to serve as “barndominiums” (barndos)

within which people would reside. Yet, regarding the barndos, Lonestar’s obligation

1 Brian Quinn, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
consisted of simply pouring slabs and constructing their shells or exteriors; others were

to complete them.

Construction of each facility ensued, resulting in complaints by Gleason about the

buildings’ quality and characteristics. Though the company paid Lonestar for the storage

facility and Barndo 2, it only partially paid for Barndo 3. A suit followed with Gleason

asserting claims sounding in breached contract and deceptive trade practices. Lonestar

counterclaimed for the balance due on Barndo 3. Trial was to a jury, which ultimately

rendered a verdict denying Gleason recovery while sustaining Lonestar’s claim of

breached contract. The trial court entered judgment upon that verdict.

Six issues pend for review. They involve the sufficiency of the evidence, the trial

court’s exclusion and admission of evidence, the denial of requested jury questions,

attorney’s fees, and post-judgment interest. We reverse in part.

Issue One

Gleason’s first issue contains multiple sub-issues. Each pertains to the quantum

of evidence underlying the jury’s rejection of its claims. Generally labelled as attacks

upon the factual sufficiency of the evidence underlying the verdicts, one purports to also

implicate the legal sufficiency of the evidence underlying Lonestar’s recovery against

Gleason.2 We sustain one contention, overrule another, and find no need to address the

remaining.

2 In effect, it too is a factual sufficiency attack since Gleason did not brief the legal sufficiency aspect

of the contention. Thus, that aspect of the issue was waived and will go unaddressed. See Smith v. Dixon,
No. 07-20-00197-CV, 2021 Tex. App. LEXIS 5592, at *6 (Tex. App.—Amarillo July 14, 2021, pet. denied)
(mem. op.) (finding appellant’s issues waived for inadequate briefing and brief lacked substantive argument
and citation to legal authority and record).
2
The pertinent standards of review are settled and need little comment. We cite the

parties to City of Amarillo v. Nurek, 639 S.W.3d 760 (Tex. App.—Amarillo 2021, pet.

denied), for their explanation. Yet, we take a moment to highlight several considerations.

First, when attacking solely the factual sufficiency of the evidence underlying a verdict,

the party implicitly concedes that the verdict has the support of legally sufficient evidence.

Soap Eng’g, LLC v. Infiniti Integration Servs. Corp., No. 07-24-00304-CV, 2025 Tex. App.

LEXIS 3944, at *6 (Tex. App.—Amarillo June 10, 2025, no pet.) (mem. op.); Wolf v. Starr,

617 S.W.3d 898, 903 (Tex. App.—El Paso 2020, no pet.). Secondly, both standards bar

us from simply substituting our interpretation of the evidence for that of the factfinder.

Nurek, 639 S.W.3d at 765. Under both, the factfinder remains the sole judge of the

credibility of the witnesses and the weight to be given their testimony. In re A.C.B., 302

S.W.3d 560, 564 (Tex. App.—Amarillo 2009, no pet.). That said, we turn to the issues.

Deceptive Trade Practices

Question One of the jury charge asked whether Scott d/b/a Lonestar Steel

Buildings “engage[d] in any false, misleading, or deceptive act or practice that Gleason &

Messenger Farms, LLC relied upon to its detriment and that was a producing cause of

damages to Gleason & Messenger Farms, LLC?” Via Question Two, the trial court asked

the jury to determine if the failure of James Scott d/b/a/ Lonestar Steel Buildings “to

comply with a warranty was a producing cause of damages?”3 To both, the jury

answered: “No.” Here, Gleason argues that “the following jury findings are against the

great weight and preponderance of the evidence: (1) Lonestar did not engage in any false,

misleading, or deceptive act or practice that Gleason & Messenger relied upon to its

3 A definition accompanied the question, which definition told the jury that the failure to comply with

a warranty meant “[f]ailing to perform services in a good and workmanlike manner.”
3
detriment and was a producing cause of its damages and (2) Lonestar’s failure to comply

with a warranty was not a producing cause of damages to Gleason & Messenger.” As

can be seen, only the factual sufficiency of the evidence underlying the jury’s answers is

attacked. So, in effect, Gleason concedes the existence of some evidence or legally

sufficient evidence supporting the jury’s verdicts. And, in determining the viability of its

contentions, we begin by analyzing the factual sufficiency of the evidence underlying the

answer to Question Two.

a. Warranty of Good and Workmanlike Performance

Gleason contracted for the construction of steel buildings, the frames of which

were steel tubing. Those tubes were to be welded to each other. Codie Ivins, Gleason’s

welding expert, inspected 75% of those welds in the two buildings which had yet to be

insulated, that is, Barndos 2 and 3. Of that 75%, less than 10% passed his visual

inspection. Those that failed depicted 1) porosity (voids within the welds); 2) blow

throughs (punctures in the tubing); 3) mere tacks as opposed to complete welds; 4) welds

that incorporated paint from the tubing; 5) slag (solidified remains of welding flux); 6)

undercuts (welds containing a raised edge that remained unfilled) susceptible to cracking;

or 7) welds that did not actually meld together the tubing. Such defects were captured in

numerous photos admitted into evidence, a representative sampling of which includes the

following:4

4 Truly, a picture best paints what words deficiently describe.

4
5
Each posed a point of possible failure, according to Ivins. Lonestar did not deny the

existence of such welds.

Rather, Lonestar’s expert, Jim McCarroll, characterized the defects found by Ivins

as merely “cosmetic,” “ugly,” and “need[ing] to be cleaned-up.” Furthermore, cleaning

them up, in his view, consisted of using a grinder with a wire brush to remove surface

material followed by the use of a MIG welder to reweld the joint. He then added that 1)

some welds needed to be “fixed”; 2) he was not “saying they [the welds] was [sic] all

good”; 3) he would make the welds “presentable,” “fix” the holes, and reweld the porous

welds; 4) he would not just leave flux or slag on a weld and “walk-off”; 5) “top side [welds]

really didn’t look much better”; 6) repairs would run from $2,500 to $4,500; and 7) he had

no concern about using the buildings as they were being used when he inspected them,

that is, as animal shelters.5 In short and despite calling them “cosmetic,” Lonestar’s own

expert recognized the presence of welding defects necessitating repair, as did Ivins.

5 Again, Barndos 2 and 3 were to be built as human living quarters, not structures to house livestock

or animals. So, McCarroll suggesting the structures as built were fit for housing animals is no evidence that
they were fit to house humans.
6
Indeed, he opined that he would not have left several of the welds he encountered had

he been the welder.

To the foregoing, we now add Scott’s own words. He was asked “how do you

decide – what do you go by to decide if you think the weld is approved or not?” His reply

was “[t]he most important thing, I mean, is if they’re cracked or pulled apart. If there’s –

that would be the first sign, is if they haven’t held, then structurally they’re not good.”

Welds found in the buildings depicted those very conditions, as illustrated by two of the

foregoing pictures. So, some met Scott’s own criteria as objectionable or unsatisfactory.

Nevertheless, he, like McCarroll, also generally described the welds as merely “ugly” or

having “cosmetic” defects. That leads one to reasonably wonder if “ugly” and “cosmetic”

included welds of the ilk encompassed by his definition of unapproved. Be that as it may

for Scott also suggested they could be “fixed.”6 These opinions of his apparently were

derived after conducting his own inspection. Yet, his own words rendered suspect the

extent of that inspection. For instance, when queried about it, he could remember “getting

up and looking” on only one of the three buildings. “[G]etting up and looking” on only one

building weakens the foundation underlying his opinion about the structural acceptability

of all the welds in all the buildings.

In turn, the actual welder and Scott’s nephew (Head) also acknowledged the

presence of “ugly” welds.7 They needed to be touched up in his view. This witness also

described how two other workmen had the initial duty of “tacking” the steel tubing together

6 That harkens to a twist on the old adage of “don’t fix what ain’t broke” . . . “if it ain’t broke, then

why fix it.”

7 It seems rather interesting that “ugly” apparently includes welds that do not bridge gaps between

the metal, contain pockets of porosity (bubbles), or include holes blown in the surrounding metal.
7
to set them in place. Once tacked, Head was to then follow up and complete the weld.

But, as depicted by exhibits of record, welds were found that simply consisted of tacking;

apparently, they were not completed. Head then revealed that, though Gleason was not

a welder, only those welds which Gleason questioned would undergo repair or touch-up.

As for evidence about the structural integrity of the welds, several witnesses

considered them sound. They arrived at that belief after conducting visual inspections.

But again, the extent of those inspections was suspect. To reiterate, Scott merely viewed

the welds of one while McCarroll merely stood on the ground to examine ceiling welds.

And it seems that those purported inspections missed defects like the ones depicted in

the aforementioned pictures.

Performing in a good and workmanlike manner does not mean perfection. It

means providing that quality of work done “by one who has the knowledge, training, or

experience necessary for the successful practice of a trade or occupation and performed

in a manner generally considered proficient by those capable of judging such work.”

Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 354 (Tex. 1987) (op. on reh’g); accord

Ewing Constr. Co. v. Amerisure Ins. Co., 420 S.W.3d 30, 37 (Tex. 2014) (same). When

the welder charged with welding Gleason’s buildings admits to the presence of welds

needing to be fixed . . . when expert welders presented by both litigants admit to the

presence of welds needing attention . . . and when the jury has before it numerous

pictures of numerous welds requiring attention, the jury had overwhelming evidence of

work done in less than a good and workmanlike manner. Lonestar’s witnesses may call

them “cosmetic” or non-structural defects, but those same witnesses nonetheless

8
acknowledged the need for repair. And, Lonestar’s own expert provided his estimate as

to the monetary cost of those repairs.

To the foregoing we also note undisputed evidence regarding the manner by which

a porch and carport were attached to the buildings. In both instances, they were affixed

via screws merely screwed into the sheet metal of the respective main building (as

opposed to a beam), and such sheet metal was not designed to withstand the load of

either a porch or carport. Again, Lonestar did not dispute that; instead, Scott himself

acknowledged the condition. He tried to justify it by saying not only that his employees

forgot to bring bolts but also that he intended to return to fix the problem. But, like the

welds, the defect remained.

In short, the foregoing evidence depicts universal concession as to the need for

further repairs. That leads us to hold that the jury’s rejection of Gleason’s deceptive trade

practice claim founded on breached warranty of good and workmanlike conduct was and

is so against the great weight and preponderance of the evidence as to render it clearly

wrong and unjust. Thus, we sustain issue two, and that requires a new trial on the claim.

See Dubree v. Blackwell, 67 S.W.3d 286, 289 (Tex. App.—Amarillo 2001, no pet.) (noting

new trial to be the applicable remedy when a verdict is not supported by factually sufficient

evidence).

b. Misrepresentations

Next, we turn to Gleason’s attack upon the jury’s answer to Question One. Again,

the factfinder answered “no” when asked if Lonestar “engage[d] in any false, misleading,

or deceptive act or practice that Gleason & Messenger Farms, LLC relied upon to its

detriment.” The purportedly false, misleading or deceptive acts concerned

9
representations about the ability of the buildings to withstand 120 mph winds, the

habitability of Barndos 2 and 3, the presence of adequate footing, and out-of-plumb

beams.

To reiterate, Gleason believed the jury’s answer lacked factually sufficient

evidentiary support. So, as before, we begin with the implicit concession about the verdict

having legally sufficient evidentiary support. Moreover, our review of the record failed to

nudge us toward the precipice of factual insufficiency.

For instance, while Scott knew Gleason intended to use Barndos 2 and 3 as

residences, he agreed to construct only a shell resting upon a foundation. An agreement

to build a shell lacking electricity, insulation, plumbing and the like, is not an agreement

to construct a habitable building. See Centex Homes v. Buecher, 95 S.W.3d 266, 273

(Tex 2002) (subst. op. on reh’g) (stating that habitability contemplates a “house that is

safe, sanitary, and otherwise fit for human habitation”); Lutfak v. Gainsborough, No. 01-

15-01068-CV, 2017 Tex. App. LEXIS 4554, at *20 (Tex. App.—Houston [1st Dist.] May

18, 2017, no pet.) (mem. op.) (same). Moreover, various witnesses opined that the

finished structures would be suitable for living quarters. As for beams being out of plumb,

that is supported by some evidence. But other evidence Lonestar proffered controverts

the proposition. The same is true of the footing. While Gleason offered testimony

indicating inadequate or absent footing, Lonestar proffered evidence illustrating

otherwise. Similarly, Scott testified that the buildings of the ilk at bar can withstand 120

mph winds and have historically withstood high winds. Of course, other evidence or

record exists on both sides of the argument. Yet, we need not detail it since we find the

evidence underlying the verdict to be factually sufficient. See Ibarra v. Noah’s Roofing &

10
Constr., 657 S.W.3d 412, 420–21 (Tex. App.—El Paso 2022, no pet.) (stating that

because “we uphold the factual sufficiency of the evidence, we need not otherwise give

details of all supporting evidence of record”). In effect, the jury was faced with credibility

choices and conflicting evidence. The task fell to its members to decided whom to believe

and what evidence to credit. And having performed it by rejecting the claim, we cannot

say its decision was or is clearly wrong or unjust.

c. Breached Contract

The remaining subparts of the first issue encompass the answers to Questions 4

and 7. Through 4, the jury said “no” when asked if Lonestar breached its contract with

Gleason. Through 7, it said “yes” when asked if Gleason breached the contract by failing

to pay. Yet, we need not address either subpart given our earlier disposition of the

warranty claim.

Simply put, the warranty of performing in a good and workmanlike manner is

implied into construction contracts like those here. See Nghiem v. Sajib, 567 S.W.3d 718,

725 (Tex. 2019). Furthermore, the tenor of Lonestar’s performance underlies an aspect

of Gleason’s claim of breached contract. Our having reversed that portion of the verdict

finding against Gleason on its good and workmanlike claim effectively nullifies the jury’s

answer to whether Lonestar breached the contract. That is, if on retrial the factfinder

determines that Lonestar failed to perform in a good and workmanlike manner, then it

breached its contract with Gleason, and that topic remains open.

As for the viability of the verdict favoring Lonestar’s claim of breached contract, a

later finding that it breached the same warranty could prevent or otherwise impact

Lonestar’s recovery. See Warren v. Denison, 563 S.W.2d 299, 303 (Tex. App.—Amarillo

11
1978, no pet.) (stating that “a finding that the builder did not complete the contract in a

good workmanlike manner does not necessarily mean that he has not substantially

performed the contract. The instances of failure to perform in a workmanlike manner are

often no more than deviations from perfect compliance, which reduce the recovery on a

contract otherwise substantially performed”). So, we are compelled to also return the

claims underlying Questions 4 and 7 to the trial court for new trial.

Issue Two

The next issue implicates the trial court’s rulings concerning the exclusion and

admission of evidence. Upon consideration of each argument, we overrule the issue for

the following reasons.

Exclusion of exhibits depicting footing

Regarding the exclusion of Gleason’s evidence purportedly “demonstrating

Lonestar’s failure to install appropriate footings,” Gleason both created the evidence and

disclosed it to Scott after lapse of the discovery deadline. That resulted in Lonestar

objecting to its admission. The trial court sustained the objection because of its policy

that “nothing’s admissible after the deadline [] [u]nless . . . leave is obtained” and “that

stuff doesn’t come in that’s produced after the date of the – end of the discovery deadline

unless there’s some extenuating circumstance to grant leave.” Before us, Gleason

characterizes the decision as reversible because the trial court “refused to consider the

lack of surprise or unfair prejudice to Lonestar.”

Generally, questions regarding the admission and exclusion of evidence are

reviewed under the standard of abused discretion. Fitzgerald v. Water Rock Outdoors,

LLC, 536 S.W.3d 112, 119 (Tex. App.—Amarillo 2017, pet. denied). Per that standard,

12
“before we can hold that a trial court erred . . ., it is incumbent upon the party having the

burden to prove error on appeal (i.e., the appellant) to negate each potential basis

supporting the ruling.” In re T.M., 33 S.W.3d 341, 348 (Tex. App.—Amarillo 2000, no

pet.). We further note authority saying that a party failing to make, amend, or supplement

discovery in a timely manner may not introduce in evidence the material or information

that was not timely disclosed unless the court finds 1) good cause for the failure or 2) the

failure does not unfairly surprise or unfairly prejudice the other parties. TEX. R. EVID.

193.6(a)(1)–(2); Jackson v. Takara, 675 S.W.3d 1, 6 (Tex. 2023) (per curiam).

Here, the reason offered by the trial court for excluding the evidence in question

tends to fall within the ambit of “good cause.” That is, Gleason did not obtain leave, based

on “extenuating circumstance[s],” to provide its opponent the evidence after the discovery

deadline lapsed. That smacks of lacking good cause justifying the failure to timely

supplement. On the other hand, the trial court said little about the topic of surprise and

prejudice. Yet, surprise and prejudice still justified exclusion of the evidence, as we now

discuss.

Lonestar complained about Gleason’s failure to comply with the discovery

deadline, which apparently fell on July 26, 2024. It also contended that Gleason’s expert

revealed during an earlier deposition that he had not dug around the buildings to

investigate whether Lonestar laid adequate footing. The purported absence of adequate

footing served as one basis for Gleason’s contention about breached contract and

deficient performance. Not until a week before trial and several weeks after the discovery

deadline lapsed did Gleason attempt to fill the void. Gleason did not explain to the trial

court why its expert witness had not timely attempted to obtain discovery supporting his

13
upcoming opinion. Indeed, Lonestar’s counsel noted that Gleason had more than a year

to seek discovery upon an important aspect of Gleason’s claims but nonetheless waited

until the eve of trial to act. Nor did Gleason explain why it had not obtained leave of court

to act belatedly. As argued by Lonestar, “[t]his issue [regarding footing] has been from

day 1, over 2 years ago, and they just now got a backhoe out there to see what they want

to now produce to us.”

The foregoing circumstances depict effort by Gleason to fill gaps in its evidence,

gaps that Lonestar earlier discovered and intended to exploit. It depicts Gleason’s effort

to shore up, after the discovery deadline, gaps in expert testimony to be proffered at the

impending trial. So, one (including a trial court) can reasonably deduce prejudice and

surprise underlying Lonestar’s objection. And, even if the trial court did not voice this

ground when sustaining the objection, the ground and circumstances supporting it

insulate the decision from reversal. As we have observed in the past, a trial court’s

decision may be upheld even on grounds no one, even the trial court, considered. See

Cantrell v. State, 280 S.W.3d 408, 411 (Tex. App.—Amarillo 2008, pet. ref’d); see also

CSL Sweatherford, LLC v. Arens, 668 S.W.3d 431, 437 (Tex. App.—Fort Worth 2023,

pet. denied) (noting the obligation to uphold a trial court decision on any theory supported

by the record when it does not make findings).

Evidence of Repair Costs

The next controversy concerns the exclusion of estimates about the costs to repair

the buildings being so high that the only option was to demolish and replace them.

Purportedly, such were “crucial to key issues [like] the severity of Lonestar’s breaches,

14
the reasonableness of the costs of repair, and difference-in-value damages.” We overrule

this complaint, as well.

To the extent that the evidence was relevant to the damages recoverable by

Gleason, we further note the presence of testimony admitted of record about the costs

involved and how they warranted demolition and reconstruction. According to Gleason’s

expert, they were “exorbitant,” and it was “significantly” less expensive to tear down the

existing buildings and “start with new ones.” So, assuming the trial court erred in

excluding the evidence, the alleged mistake was harmless given the presence of similar

evidence admitted elsewhere without objection. Washington v. State, No. 07-17-00427-

CR, 2018 Tex. App. LEXIS 8319, at *6–7 (Tex. App.—Amarillo Oct. 10, 2018, pet. ref’d)

(mem. op.) (holding that, even though the trial court erred in excluding “Granberry’s

testimony . . . the error was harmless given that substantially identical evidence was

admitted elsewhere without objection”); accord Gonzalez v. Delgado, No. 01-21-00217-

CV, 2022 Tex. App. LEXIS 6747, at *29 n.8 (Tex. App.—Houston [1st Dist.] Sept. 1, 2022,

no pet.) (mem. op.) (same).

Gleason’s next complaint concerns evidence about flooring and a purported

agreement with Lonestar regarding same. At trial, counsel for Gleason asked if “there

[were] any other discussions about the way that the barndominiums would be built?” The

witness answered, in part, as follows: “I did make sure to tell him I wanted polished

concrete floors.” That elicited objection from Lonestar founded on the parol evidence

rule. The court initially “sustained” that objection. Yet, counsel for Gleason then

commented that he “wasn’t trying to get beyond that, but besides everybody’s talked

about polished concrete several times as well as several discussions about other matters

15
that were not within the four corners of the contract.” That led the trial court to think further

about the matter and utter: “I don’t think he [the witness] said it’s part of the contract. He

just – my understanding was he said he told them – or he – it’s his testimony that he told

him. Okay. I’m going to allow it. Go ahead.” That was followed by counsel for Gleason

saying, “And that’s all I’m getting at, Judge.” Thereafter, the witness was told it was “okay”

to “finish” his original answer to the question “about the way that the barndominiums would

be built,” which the witness did. These circumstances do not depict an exclusion of

evidence but, rather, permission for the witness to answer the question propounded to

him, over Lonestar’s objection. Being allowed to do what it sought provides Gleason no

basis for complaining, and we overrule the argument.8

Evidence of Other Suits

Lastly, Gleason complains of the trial court’s refusal to sustain its objection to

evidence about other lawsuits it initiated against third parties. Objection came when

Lonestar broached the lawsuit involving repairs to a skid steer. Though the trial court

overruled the objection, Gleason did not ask for a continuing or running objection as

Lonestar developed the topic. Nor did it object each time Lonestar queried the witness

about the skid steer dispute. Gleason also remained mute when Lonestar propounded

questions about other suits initiated by Gleason and unrelated to the skid steer. Given

that additional evidence of the skid steer suit was admitted without objection, as was

evidence of the other suits, Gleason waived or failed to preserve the current complaint.

8 As for the suggestion that the trial court somehow generally misapplied the parol evidence rule,

we say the following: It allegedly misapplied the rule, according to Gleason, because parol evidence
involving other aspects of the parties’ agreement was admitted. Yet, Gleason does not direct us to where
anyone objected or otherwise urged the rule to bar admission of evidence at those times. We hesitate to
conclude that because unobjected-to parol evidence came in elsewhere means all parol evidence, even
that which is inadmissible and to which one objects, automatically becomes admissible.
16
See In re A.J.C., No. 07-24-00331-CV, 2025 Tex. App. LEXIS 1650, at *3 (Tex. App.—

Amarillo Mar. 12, 2025, no pet.) (mem. op.) (holding that the complaint was not preserved

because the complainant failed to object each time the evidence was admitted or

otherwise request and obtain a running objection to that evidence); see also Lubbock

Cnty. v. Reyna, No. 07-19-00330-CV, 2021 Tex. App. LEXIS 33, at *10–11 (Tex. App.—

Amarillo Jan. 5, 2021, no pet.) (mem. op.) (holding that complaint was waived due to the

lack of repeated objections or securing a running objection).

Issue Three

Via this issue, Gleason contends that the trial court erred in denying its request to

submit jury questions on 1) Lonestar’s purported breach of the implied warranty of

habitability and 2) his alleged knowing and intentional misrepresentation concerning the

quality of the buildings. We first review the decision regarding the question of breached

warranty of habitability.

The pertinent standard of review is one of abused discretion. See Thota v. Young,

366 S.W.3d 678, 687 (Tex. 2012) (stating that appellate courts “review a trial court’s

decision to submit or refuse a particular instruction under an abuse of discretion standard

of review”). “Discretion is abused when the trial court acts without reference to guiding

rules or principles; that is, when the decision is arbitrary or unreasonable.” In re

Guardianship of Tonner, 514 S.W.3d 242, 243 (Tex. App.—Amarillo 2014), aff’d, 513

S.W.3d 496 (Tex. 2016) (per curiam). We cannot say the trial court abused its discretion

in refusing the question about breaching the warranty of habitability. This is so because

the decision actually comports with the law.

17
Assuming arguendo that all involved knew Barndos 2 and 3 were to be residences,

no one denies that Lonestar’s contractual obligation consisted of only building shells and

laying foundation. In other words, the obligation merely consisted of providing incomplete

abodes. This is of import given the words of our Supreme Court in Centex Homes v.

Buecher. There, it said 1) the warranty of habitability, as opposed to one involving good

and workmanlike performance, “looks only to the finished product,” and 2) it “is a result

oriented concept.” Centex, 95 S.W.3d. at 273 (emphasis added). It further explained that

“[a]s compared to the warranty of good workmanship, ‘the warranty of habitability

represents a form of strict liability since the adequacy of the completed structure and

not the manner of performance by the builder governs liability.’” Id. (quoting Timothy

Davis, The Illusive Warranty of Workmanlike Performance: Constructing a Conceptual

Framework, 72 NEB. L. REV. 981, 1015 (1993)). If nothing else, these words restrict the

warranty of habitability to the provision of completed facilities. Lonestar’s obligations did

not encompass the provision of finished homes but, rather, building shells. So, unless

one ignores Centex, Gleason was unentitled to the issue sought. Moreover, Gleason’s

mention of March v. Thiery, 729 S.W.2d 889 (Tex. App.—Corpus Christi–Edinburg 1987,

no writ), does not change this for several reasons.

First, the court in March said nothing of Centex; of course, this may be because

the former intermediate court opinion was issued years before the latter Supreme Court

opinion. And, we all know Supreme Court rulings control. Second, and unlike the

circumstances here, the builder of the unfinished home and his family in March actually

lived in the abode for several years before selling it to Thiery. Id. at 892. This suggests

the abode was intended to be habitable at time of sale. Here, the structure in question

18
was a mere shell, lacking the amenities rendering the structure safe, sanitary, and

otherwise fit for human habitation. See Centex, 95 S.W.3d at 273 (stating that habitability

contemplates a “house that is safe, sanitary, and otherwise fit for human habitation”). As

we noted earlier, Lonestar having contracted to construct only a shell, it did not agree to

provide a house that is “safe, sanitary, and otherwise fit for human habitation.” Nor can

it be logically said the buyer contracted for a “house” or residence that is “safe, sanitary,

or otherwise fit for human habitation” when seeking only a shell. And, this may be why

our Supreme Court contemplated a finished product or residence in Centex as a

prerequisite to the existence of the warranty of habitability.

Finally, we are a bit troubled by a potential piecemeal application of the concept if

it is applied to construction short of complete. For instance, if an entity charged only with

erecting the slab, walls, and roof did so quite satisfactorily while a later contractor wired

or plumbed the abode so poorly it was not habitable, would the former be responsible for

the inhabitability of the house? After all, the edifice was not habitable when the former

finished its work and remained so due the poor craftmanship of later individuals.

Displacing Centex with March could leave contractors exposed to liability for downstream

activities over which they had no control. Applying Centex as written avoids that

likelihood.

In short, we overrule that portion of Gleason’s fourth issue pertaining to the

warranty of habitability. That leaves us with the complaint about refusing to submit a

question on whether Lonestar’s purported deceptive trade practices (i.e.,

misrepresentations and warranty breaches) were knowing or intentional. Our earlier

disposition of the factual sufficiency disputes relieves us from the need to address the

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matter at this time. That is, the omission grew moot viz-à-viz the allegation of

misrepresentation since the jury found none. As for the allegation of breached warranty,

that claim is being retried, and the relevance of the instruction likely depends upon the

tenor of evidence admitted at retrial.

Issue Five

Next, Gleason attacks the attorney’s fees awarded Lonestar. The latter sought

such fees for successfully pursuing its claims involving breached contract, violation of the

prompt payment statute, and enforcement of mechanic’s liens. Apparently, each was

founded upon Gleason’s alleged failure to pay Lonestar for successfully performing its

contractual obligations regarding Barndo 3.

Lonestar based its claim to attorney’s fees upon § 38.001 of the Texas Civil

Practice and Remedies Code9 and § 28.005 of the Texas Property Code.10 Our earlier

disposition of the first issue requires a new trial. The outcome of that new trial may

influence the decision to award attorney’s fees and the amount of fees to award. For that

reason, we sustain issue five, reverse the attorney’s fees awarded Scott and Lonestar,

and remand the issue for new trial as well. See Pointe West Ctr., LLC v. It’s Alive, Inc.,

476 S.W.3d 141, 152–53 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (stating that

because the court remanded for new trial one of Pointe West’s breach-of-contract claims,

it must also remand its claim for attorneys’ fees related to the claim).

9 See TEX. CIV. PRAC. & REM. CODE § 38.001(a) (permitting the recovery of reasonable attorney’s

fees if the claim is for rendered services, performed labor, or breach of an oral or written contract).

10 See TEX. PROP. CODE § 28.005(b) (stating that an in action brought under this chapter of the

Prompt Payment Act, the court may award costs and reasonable attorney’s fees as it determines equitable
and just).
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Issue Six

In its final issue, Gleason contends that the trial court erred when ordering in the

final judgment that the sums due from it accrue “post-judgment interest at the rate of 18

percent (18%) per month.” As with issue five, this one too is dependent upon the outcome

of a new trial. So, we sustain it.

In sum, we reverse the judgment of the trial court and remand for new trial on all

matters except for the cause of action arising under the Texas Deceptive Trade Practices

Act and founded upon alleged misrepresentations uttered by Scott and Lonestar.

Brian Quinn
Senior Justice

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