### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-15-00496- CV

Steven C. Albright and Rhon da Albrigh t, Appellants

v. Rhea & Sons En ter prises, Inc. d/b /a Rhea P lumbing, App ellee

F ROM TH E DISTRI CT COURT O F LLANO COUNTY , 424 TH JUDICI AL DISTRICT NO. 175 73A, H ONO RAB LE J. ALLAN GARRETT, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Steven C. Albrig ht and Rhonda Albrig ht appea l from the trial court’s order g ranting
summary judgme nt in favor of Rhea & Sons Enterpr ises, I nc. d/b/a Rhea Plumbi ng . The Albrig hts sued Rhea for neg lige nce and brea ch of implied war ranty based on alleg ed plumbing defe cts and improper propane installation in the construction of their newly purcha sed home. Rhea moved for
summary judgme nt on the g rounds that the Albrig hts’ claims wer e barr ed b y q u a s i-estoppel, estoppel by contra ct, and limit ations, and that t h ei r i m p l ied war ranty claim was also barr ed by binding
prec edent. F or the re asons that follow, we aff irm in part and r ever se and r emand in par t.

BACK GR OUND I n 2009, the Albrig hts enter ed into a contra ct with J PAG Venture s and rela ted entities and individuals (collec tively the Gene ral Contractor) to purcha se a partially constructe d “spec ” home. The contra ct provided that the Albrig hts would purcha se the home and the Gene ralContractor would furnish all nece ssary labor and materia ls for construction. The Albrig hts move d

into the home in Dec ember 2009. I n May 2011, the Albrig hts filed suit ag ainst the Gene ral Contractor asser

ting claims for brea ch of contra ct, neg lige nce, brea ch of implied war ranty , and other claims in connec tion with alleg ed defec ts i n t h e h o m e. I n Fe bruar y 2013, the Genera l Contractor filed a motion for leave to de signa te responsible third parties, which the Albrig hts did not oppose. See Tex. Civ. Prac. & Rem. Code § 33.004(a) (providing that defe ndant may seek t o d es i gn ate person as responsible third party by filing motion for leave ). I n the motion, the Gene ral Contractor identified 18 subcontrac tors who perf ormed work on the Albrig hts’ home. On April 10, 2013, the Albrig hts and the Gene ral Contractor enter ed into a settlement ag ree ment, and on April 11, the trial
court g rante d the Gene ral Contractor’ s motion for leave to desig nate responsible third parties. See id. § 33.004(f) (providing that court shall gra n t l eave to desig nate responsible third party unless

an o t h er party files objection on or befor e 15th day afte r motion is serve d); see also Valverde

v. Biela’s Glass & Aluminum Prods. Inc. , 293 S.W .3d 751, 754–55 (Tex. App.—San Antonio 2009, pet. d en i ed) (holding that desig nation become s eff ective upon trial court’s g ranting of motion for leave ). On May 2, 2013, the Albrig hts filed their third amende d petition adding Rhea and the other

s ubcontra ctors as defe ndants, asser ting claims ag ainst Rhea for neg lige nce and brea ch of i m p l i ed

war ranty for plumbing defe cts and improper propane installation in the home. I n J uly 2013, the trial
court e ntere d a fina l take nothing judgme nt as to the Gene ral Contrac tor.

I n Fe b ruar

y 2015, Rhea filed a combined traditional and no-evide nce motion for
summary judgme nt. I n its traditional motion, Rhea arg ued that beca

use the Albrig hts had settled and fully rele ased their claims for alleg ed defe cts in the h o m e when they settled with the Gene ral

2Contractor, those claims wer e barr ed by quasi-estoppe l and by estoppel by contract

. I n the

alterna tive, Rhea asser

ted that to the extent the Albrig hts asser ted any new cause s of action ag ainst Rhea, those claims wer e barred by the applicable s tatutes of l imitations

. Rhea further arg ued that the claim for brea ch o f i m p l ied war ranty was barr ed by binding prec edent from this Court. I n its no-evide nce mo t i o n , R h ea arg ued that to the extent the Albrig hts asser ted a cause of action for brea ch of contra ct ag ainst Rhea, there was no evidenc e. Following a hear ing, the trial court enter ed 1

an “Or der Gra

nting [R hea’ s] Traditional and No-Evidenc e Motion for Summary J udg ment” without specify ing the g rounds for its ruling

. The trial court subsequently sever ed the Albrig hts’ claims
ag ainst Rhea from their claims ag ainst the rema ining subcontrac tors, and the summary judgme nt beca me final. This appe al followed.

DISCUSSIO N

I n a single issue, the Albrig hts arg ue that t he trial court err ed in g ranting Rhea’s traditional motion for summary judgme nt. I n its motion, Rhea challeng ed the Albrig hts’ neg lige nce 2 and implied war

ranty claims on three g rounds. We addre ss eac h g round in turn.

I n its response to Rhea’s motion for summary judgme nt, the Albrig hts stated that they had 1 not asser ted a brea ch of contra ct claim ag ainst Rhea—a position they reiter ate o n ap p eal. Thus, Rhea’s no-evide nce motion, and t h e trial court’s order to the extent it purported to g rant the no-evide nce motion, ar e moot, and we need not a ddress them fur ther. The standard of revie w for a traditional summary judgme nt is well known, and we do not 2 rec ite it here

. See Tex. R. Civ. P. 166a(c ); Travelers Ins. Co. v. Joachim , 315 S.W .3d 860, 862 (Tex. 2010); Valence Operating Co. v. Do r s ett , 164 S.W .3d 656, 661 (Tex. 2005); Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215–16 (Tex. 2003). 3Quasi -Estoppel and Estopp el by Contract I n its motion for summ ary judgme nt, Rhea first arg ued that in settling with the Gene ral Contractor, the Albrig hts had settled all of th e cl ai m s they subsequently asser ted ag ainst Rhea so that their claims ag ainst Rhea wer e barr ed by quasi-estoppe l and estoppel by co n t ra ct. “Qua si-estoppel prec ludes a party from asse r ti n g , to another ’s disadvantag e, a rig ht inconsistent with

a position previously taken.” Lopez v. Munoz, Hock ema & Ree d L.L.P. , 22 S.W .3d 857, 864 (Tex. 2000). The doctrine “for bids a party fro m acc epting the benef its of a transac tion and then subsequently taking an inconsistent position to avoid corr esponding obliga tions or eff ects.” Freezia

v. IS Storage Venture, LLC , 474 S.W .3d 379, 387 (Tex. App.—Houston [14t h Dist.] 2015, no pet.). “Estoppel by contra ct is a form of quasi-estoppe l based on the idea that a party to a contra ct will not be permitted to take a position inconsistent with the contra ct to the prejudice of another .” Johnson

v. Structured Asset Servs., LLC , 148 S.W .3d 711, 721–22 (Tex. App.—Dallas 2004, no pet.). Thus, the rule is not actua lly one of estoppel but is another way of say ing that a party is bound by the terms of his contra ct, and cannot take a position inconsistent with the contra ct’s provisions. Id. Estoppel by contra ct binds a party to the terms of his contra ct unless the contra ct is void, annulled, or set aside in some way and prec ludes a party to a valid ag ree ment from deny ing the truth of the rec itals in the instrument. Freezia , 474 S.W .3d at 387–88; Royalco Oil & Gas Corp. v. Stockhome Trading Corp. , 361 S.W .3d 725, 732 (Tex. App.—For t Worth 2012, no pet.); Coffey v. Singer Asset Fin. Co., L.L.C

. , 223 S.W .3d 559, 569 (Tex. App.—Dallas 2007, no pe t.).

Rhea conte n d s that in desig nating Rhea as a responsible third party , the Gene ral Contractor alleg ed that Rhea was responsible for the same claims that the Albrig hts broug ht ag ainst

4the Gene ral Contractor, and that in settling with the Gene ral Contractor, the Albrig hts contra ctually

ag ree d to the resolution of all claims and cause s of action arising out of the trans ac t i o n s or

occur renc es that are the subject of this litiga tion. Be cause asser ting claims ag ainst Rhea that wer e rele ased in the settlement ag ree ment is inconsistent with the terms of the settlement ag ree ment and an attempt not to be bound by them, Rhea re asons, the Albrig hts claims ag ainst Rhea ar e bar red. We do not f

ind this arg ument persua sive. Rhea’ s focus on the claims rele ased—a s opposed to the parties rele ased—is mispla ced, and its conclusion that in rele asing the Gene ral Contractor, the Albrig hts rele ased all claims ag ainst Rhea, as a party listed in the Gene ral Contractor’ s motion to desig nate responsibl e third parties, is flawe d. A responsible third party is define d as:
[A] ny person who is alleg ed to have cause d or contributed to causing in any way the harm for which rec overy of damag es is soug ht, whether by neg lige nt act or omission, by any defe ctive or unrea sonably dang erous product, by other conduct or activity that violates an a

pplicable leg al standar d, or by any combination of these.

Tex. Civ. Prac. & Rem. Code § 33.011(6). S ec t i o n 3 3

. 004(a) provides a statutory basis for desig nation of a “re sponsible third party ” for the purpose of ap p o rt ioning perc entag es of responsibility

. See id. §§ 33.003(a) (providing that trier o f fac t shall deter mine perc entag e of responsibility for eac h claimant, defe n d an t , s ettling person, and responsible third party ), .004(a) ; In re El Apple, Inc. , 362 S.W .3d 154, 158 (Tex. App.—El Paso 2012, orig

. proce eding ); Valverde , 293 S.W .3d at 754 (citing Gre g o r y J. L e n s in g

, Pr o portionate Responsibility and Contribut ion Before and After the Tor t Reform of 2003 , 35 Tex. Tec h L

. Rev. 1125, 1182 (2004))

. Thus, while a defe ndant may attempt to shift liability onto responsible third parties, “nothing in [section 33.004]
5affec t s t he third-par ty prac tice as previously rec og nized

. . . with reg ard to

. . . the asser tion by a defe ndant of rig hts to contribution and indemnity .” Tex. Civ. Prac. & Rem. Code § 33.004(b); see Molinet v. K

imbrell , 356 S.W .3d 407, 4 1 7

– 1 8 (T ex . 2011) (L ehrma nn, J ., dissenting) (discussing shifting of per ce n t age of responsibility under Chapter 33 and citing J as Br ar, Friend or Foe? Responsible Third Parties and Leading Questions , 60 Ba ylor L

. Rev

. 261, 275 (2008); E la in e A

. Ca

r ls o n , To r t R e

fo r m : R e d e fi n in g th e R o le o

f th e Co u r t a n d th e J

u r y , 4 7 S. T e x. L

. Re v . 2 4 5 , 259 (2005))

. There is nothing in the statutory lang uag e to support Rhe a’ s co n t enti on that the Gene ral Contractor’ s desig nation of Rhea as a responsible third party somehow m er ges the Albrig hts’ claims ag ainst the Gene ral Contractor and Rhea or that by settling their claims ag ainst the Gene ral Contractor, the Albrig hts also rele ased claims for the same “har m for which rec overy of damag es is soug ht” as ag ainst Rhea. S ee T ex . Civ. Prac. & Rem. Code §§ 33.003(a) , .004(a) , .011(6); Galbraith Eng’g Consultant s, Inc. v. Pochuc ha , 290 S.W .3d 863, 867 (Tex. 2009) (stating that our primary conce rn is express statutory langu age ); Marks v. St. Luke’s Episcopal Hosp. , 319 S.W .3d 658, 663 (Tex. 2010) (noting that we apply plai n m ea n i ng of text unless differ ent meaning is supplied by

leg islative definition or is a ppare nt f rom context or plain meaning leads to absurd results). Such an arg ument implies that bot h an o ri gi n al defe ndant and a defe ndant the plaintiff lat er sues afte r it is desig nated a responsible third party cannot both be liable for the plaintiff’s har

m—an ar g ument direc tly contra dicted by the proportionate responsibility scheme of Chapter 33. See ge nerally Tex. Ci v. Prac. & Rem. Code §§ 33.001–.017. Rhea cites no authority for that proposition, and we know of none. To the contra ry , multipl e defe ndants can share liability

6for “ the har m for which the rec overy of damag es is soug ht,” and Chapte r 33 does not conte mplate that settlement of cause s of action ag ainst one defe ndant prec ludes maintaining cause s of action for the same harm ag ainst another defe ndant. See generally i d

. ; s ee Pochuc ha , 290 S.W .3d at 867; Marks , 319 S.W .3d at 663.

Moreove r, the express terms of the settlement ag ree ment provided that the Albrig hts rele ased their claims ag ainst the Gene ral Contractor only

. See Valence Operating Co. v. Dorsett , 164 S.W .3d 6 5 6 , 6 62 (Tex. 2005) (“Contra ct terms are g iven their plain, ordinary , and g ener ally

ac ce pted meaning s unless the contra ct itself shows them to be used in a technica l or diffe re n t sense.” ). The settlement ag ree ment stated that the parties to this case ag ree d to settle “all claims and
controve rsies betwee n them” and “all cla ims and cause s [of] action of a ny kind w hatsoeve r which the parties have or may have arising out of the transac tion or occur renc e which is the subject of the litigation.” At the time of the settlement ag ree ment, the only parties in the case —and the only parties
to the settlement ag ree ment—wer e the Albrig hts and the Gene ral Contractor. Fur ther, the Albrig hts expressly rese rved their “rig hts to g o afte r . . . all parties named in [t he Gene ral Contractor’ s] motion to desig nate r esponsible 3rd pa rties.” S imilarly , the judgme nt enter ed following settlement was captioned “F in al T ak e Nothing J udg ment as to [t he Gene ral Contractor] Only .” I n it, the trial court stated the names of the
p ar t i es—t he Albrig hts and the Gene ral Contractor—a nd rec ited that the parties had rea ched a settlement. The trial court then order ed that the Albrig hts “take nothing by rea son of this suit ag ainst Def endants [t h e Ge n er al C ontrac tor] only .” Thus, the plain lang uag e of both the settlement
ag ree ment and judgme nt states the parties’ intention that the Albrig hts settle and rele ase their claims

7ag ainst the Gene ral Contractor only

. See Frost Nat’l Bank v. L& F Distribs., Ltd. , 165 S.W .3d 310, 311–12 (Tex. 2005) (per curia m) (stating that primary conce rn i n construing contra ct is to

asce rtain and g ive eff

ect to intent of parties as expressed in instrument) ; see also Tawes v. Barnes , 340 S.W .3d 419, 425 (Tex. 2011) (noting that construction of unambig uous contra ct is question of law we revie w de novo); Dyne gy Midstream Servs., Ltd. P’ship v. Apache Corp. , 294 S.W .3d 164, 168 (Tex. 2009) (stating that cont ra ct i s n o t ambig uous simply beca use parties disag ree over its meaning ). Consequently , the Albrig hts’ asser tio n of claims ag ainst Rhea is not a denial of or an action inconsistent w ith the terms of the settlement ag ree ment, and the doctrines of quasi-estoppe l and esto ppel by contra ct are inapplicable. See Lopez , 22 S.W .3d at 864; Freezia , 474 S.W .3d at 387–88. We c onclude that Rhea failed to meet its summary judgme nt burden a s to qua si-estoppel and estoppel by contra ct, and we sustain the Albrig hts’ issue as to that summary judgme nt g round. See Tex. R. Civ. P. 166a(c ); Provident Life & Acc ident Ins. Co. v. Knott , 128 S.W .3d 211, 215–16 (Tex. 2003).

Statute of Limitat ions

As a second g round for summary judgme nt, Rhea asser ted, in the alterna tive that, to the extent the Albrig hts’ claims ag ainst Rhea ar e not the same claims asser ted ag ainst the Gene ral Contractor, then they are new claims that are barr ed by appl i ca b l e s tatutes of limit ations. The Albrig hts do not dispute that the applicable statutes of limit ations for their claims ag ainst Rhea had expired. However , at the time this suit was filed, Civil Practice and Remedies Code section 33.004(e) provided a s follows:

8I f a person is desig nated under this section as a responsible third party , a claimant is

not barr ed by limit ations from seeking to join that person, even though such joinder would otherwise be barr ed by limit ations, if the claimant seeks to join that person not later tha n 60 day s after

that person is desig nated a s a re sponsible third party

.
Act of J une 2, 2003, 78th L eg ., R.S., ch. 204, § 4.04, sec. 33.004(e) , 2003 Tex. Gen. L aws 847, 856, repeale d by Act of May 25, 2011, 82d L eg ., R.S., ch. 203, § 5.02, 2011 Tex. Gen. L aws 757, 759). 3 Thus, section 33.004(e) “cr eate s the potential to revive otherwise barr ed claims ag ainst a desig nated [responsible third party ].” Flack v. Hanke , 334 S.W .3d 251, 256 (Tex. App.—San Antonio 2010, pet. denied)

. Section 33.004(e) ’s waiver of limit ations, howeve r, “is not depende nt on the substance of the claimant’s alleg ations” ag ainst the responsible third party mad e a d ef en dant. Jay Miller & Sundown, I

nc. v. Camp Dresser & McKee , Inc , 381 S.W .3d 635, 641 (Tex. A pp.—San Antonio 2012, no pet.); see Tex. Civ. Prac. & Rem. Code § 33.004(e) ; Valverde , 293 S.W .3d at 755 (holding that section 33.004 does not require claimant to use any specia l lang uag e to join party that has been desig nated responsible third party ). Rather, it provides that limit ations does not bar joinder if (1) the
p er s o n wa s desig nated as a responsible third party , and (2) joinder was within six ty day s of the desig nation. Tex. Civ. Prac. & Rem. Code § 33.004(e) ; Jay Miller , 381 S.W .3d at 641. Those two condition wer e met in this case . Thus, under a plain rea ding of section 33.004(e) , the statute of 4 limit ations may not be raised as a bar to the Albrig hts’ claims ag ainst Rhea for the “har m for which

rec overy of damag es is soug ht.” See Tex. Civ. Prac. & Rem. Code § 33.004(e) , .011(6); Pochuc ha , 290 S.W .3d at 867; Marks , 319 S.W .3d at 663. We there fore conclude that Rhea failed to meet its

All refe renc es to section 33.004(e ) ar e to the now- repe aled subsec tion. 3 There is no dispute that the Albrig hts filed their cla ims ag ainst Rhea within the dea dline 4 set out in section 33.004(e)

. 9summary judgme nt burden as to limit ations, and we sustain the Albrig hts’ issue as to that summary

judgme nt gr ound. See Tex. R. C iv. P. 166a(c); Knott , 128 S.W .3d at 215–16.

Bin din g P rec edent as to Bre ach of Implied Warranty Claim

Rhea a lso asserted a s a g round for summary judgme nt tha t the Albrig hts’ claim for brea ch of implied war

ranty is barr ed by binding prec edent of this Court. This Court and other Texas
courts of appea ls have held that a proper ty owner may not rec over under an implied war ranty theory from a subcontrac tor with whom the o wner has no direc t contra ctual rela tionship. See Raymond

v . R a h m e , 7 8 S. W. 3 d 5 5 2 , 5 6 3 ( T e x. A p p . — A u s ti n 2 0 0 2 , n o p e t. ) ; Co d

n e r v . A r e ll

a n o , 4 0 S. W. 3 d 6 6 6 , 672–73 (Tex. App.—Austin 2001, no pet.) (conc luding that while “[i] t is well settled that

a builder of a residential house impli ed l y wa rr ants that the house will be constructe d in

a g ood-and- workmanlike manner . . . , we find no case that implies a war ranty of
g ood-and- workmanlike perf ormanc e from a builder’s subcontrac tor d i re ctly to the homeowner ”) (interna l citations omitted); see also Dallas Drain Co. v. W el sh , No. 05-14-00831- CV, 2015 Tex. App. L EXI S 7042, at *22–23 (Tex. App.—Dallas J u l y 8 , 2015, no pet.) (mem. op.) (obser ving that Texas courts hav e co n s istently held that proper ty owner may not rec over under implied war

ranty theory from subcontrac tor with whom owner had no direc t contra ctual rela tionship and listing c ases)

.

On appeal, t he Albrig hts attempt to distinguish these cases on the ground that they did not involve assig nments of claims by the g ener al contra ctors to the plaintiffs. Neither does this

case . Whil e the Albrig hts expres s l y re s er v ed their rig ht to sue the desig nated responsible third parties, nowher e in the settlement ag ree ment—or elsewhe re in the rec ord—did the Gene ral
10Contractor assig n its claims to the Albrig hts. Even assuming such a distinction would aff ect the outcome, there is no such distinction in this c ase. Ba sed on the express lang uag e of the settlement
ag ree ment, we do not find persua sive the Albrig hts’ arg ument that beca use “as part of the settlement, [t he Albrig hts] and the Gene ral Contractor ag ree d that [t he Albrig hts] would be allowed to pur sue all claims ag ainst the Subcontrac tors,” the Albrig hts “ar g uably ac q u i re d such claims from the [Genera l Contractor].” See Pochuc ha , 290 S.W .3d at 867; Marks , 319 S.W .3d at 663. Raymond and Codner are co n t ro l l i n g o n the fac ts befor e us, and the Albrig hts, who had no direc t contra ctual rela tionship with Rhea, may not maintain an action ag ainst Rhea for brea ch of implied war ranty as

a matter of law. See Raymond , 78 S.W .3d at 563; Codner , 40 S.W .3d at 672–74. We conclude that Rhea met its summary judgme nt bur den as to the Albrig hts’ claim for br eac h of implied wa rra nty , and we overr

ule the Albrig hts’ issue as to the summary judgme nt g round that binding p re cede nt prec ludes t h ei r claim ag ainst Rhea for brea ch of implied war ranty

. See Tex. R. Civ. P. 166a(c ); Knott , 128 S.W .3d at 215–16.

CONCLUSION

We revers e t h e t rial court’s order g ranting summary judgme nt as to the Albrig ht’s
neg lige nce claims ag ainst Rhea and rema nd for further proce eding s consistent with this opinion. We aff irm the order

in all other re spects.

11_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Melissa Goodwin, Jus tice Be fore J ustices Pury ear , Goodwin, and F ield Affir med in Part; Reverse d and Remande d in Part Filed: Oc tober 19, 2016

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