Lauzon et al v. Pulte Homes, Inc. et al

Filing 23

ORDER GRANTING 4 Motion for Summary Judgment; DENYING [] Motion to Continue; DISMISSING 15 Motion to Stay Case as moot. Signed by Judge Xavier Rodriguez. (tr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
JONATHAN LAUZON, et al.,

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Plaintiffs,
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v.
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PULTE HOMES, INC., PULTE HOMES OF §
TEXAS, L.P., and CENTEX HOMES, INC., §
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Defendants.
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Civil Action No. SA-12-CV-177-XR

ORDER
On this day the Court considered Pulte Homes of Texas, L.P.‟s motion for summary
judgment (Doc. No. 4). For the following reasons, the Court GRANTS the motion.
I. Background
Plaintiffs in this case are owners of homes in the Rivermist and Hills of Rivermist
residential subdivisions in Bexar County, Texas. On January 24, 2010, a retaining wall
between the subdivisions collapsed and a landslide ensued. Plaintiffs allege that the failure of
the retaining wall put their homes in danger of physical damage and diminished the value of
their properties.
Plaintiffs filed suit against Defendants Pulte Homes, Inc., Centex Homes, Inc.
(“Centex”), and Pulte Homes of Texas, L.P. (“Pulte”), in the 57th Judicial District Court of
Bexar County, Texas on January 23, 2012, alleging negligence, negligence per se, gross
negligence, private and public nuisance, fraud in a real estate transaction in violation of

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section 27.01 of the Texas Business and Commerce Code, fraud, violations of the Texas
Deceptive Trade Practices Act, breach of contract, and breach of implied warranty. (See Def.‟s
Notice Removal 1, Doc. No. 1; Pls.‟ Orig. Pet., Doc. No. 1, Ex. A). Defendants Pulte and
Centex are the alleged developers of the subdivisions and are wholly owned subsidiaries of
PulteGroup, Inc. (formerly known as Pulte Homes, Inc.). The Court has dismissed Plaintiffs‟
claims against PulteGroup, Inc., and Centex, so Pulte is the only remaining Defendant.1
Pulte filed this motion for summary judgment on March 20, 2012. (Doc. No. 4). In its
motion, Pulte argues that it is not a proper party to this lawsuit because it was not involved in
the construction of Plaintiffs‟ homes, it was not involved in the development of the
subdivisions, and it was not a party to the New Home Sale Agreements that Plaintiffs entered
into with Centex. (Mot. Summ. J. 2). Therefore, Pulte argues that all of Plaintiffs‟ claims
against it should be dismissed.
II. Standard of Review
The court must grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law. FED.
R. CIV. P. 56(a). “A fact is „material‟ if its resolution in favor of one party might affect the
outcome of the lawsuit under governing law.” Hamilton v. Segue Software Inc., 232 F.3d 473,
477 (5th Cir. 2000) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986)). A genuine dispute exists if “the evidence is sufficient for a
reasonable jury to return a verdict for the nonmoving party.” Id.

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PulteGroup, Inc., was dismissed from this case on June 18, 2012, for lack of personal jurisdiction. (Doc. No.
16). Plaintiffs‟ claims against Centex were dismissed on September 24, 2012, because the Court found that the
claims were subject to a binding arbitration agreement. (See Doc. No. 21).

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Where the “burden at trial rests on the non-movant, the movant must merely
demonstrate an absence of evidentiary support in the record for the non-movant‟s case.”
Wesley v. Gen. Drivers, Warehousemen and Helpers Local 745, 660 F.3d 211, 213 (5th Cir.
2011) (quoting Bayle v. Allstate Ins. Co., 615 F.3d 350, 355 (5th Cir. 2010)). “Once a party
meets the initial burden of demonstrating that there exists no genuine issue of material fact for
trial, the burden shifts to the non-movant to produce evidence of the existence of such an issue
for trial.” Bayle, 615 F.3d at 355 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct.
2548, 2552, 91 L. Ed. 2d 265 (1986)).
“All reasonable inferences are drawn in favor of the nonmoving party, but a party
cannot defeat summary judgment with conclusory allegations or unsubstantiated assertions.”
VRV Dev. L.P. v. Mid-Continent Cas. Co., 630 F.3d 451, 455 (5th Cir. 2011).
III. Analysis
Pulte argues that it had no involvement whatsoever in the sale, development or
construction of Plaintiffs‟ homes or neighborhoods. In addition, Pulte argues that it had no
involvement in the construction or reconstruction of the retaining wall that collapsed. If true,
Pulte would have no connection to Plaintiffs‟ properties and thus Plaintiffs would be unable to
prevail on any of their claims against Pulte. Therefore, before addressing any of Plaintiffs‟
claims individually, the Court will first examine the competent summary judgment evidence to
determine if there is a genuine dispute as to whether Pulte was somehow involved with
Plaintiffs‟ properties.

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A. What was the Scope of Pulte’s Involvement with Plaintiffs’ Properties?
Pulte has offered several pieces of evidence demonstrating that it was not involved in
the development or construction of Plaintiffs‟ homes or neighborhoods. First, Pulte has offered
the declaration of Laurin Darnell, the Division President of the San Antonio Division of Pulte
Homes of Texas, L.P. Darnell states that “Pulte Homes of Texas, L.P. was not involved in the
development of Rivermist and The Hills of Rivermist Subdivisions in Bexar County, Texas,
nor was it involved in the construction of Plaintiffs' home[s].” (Mot. Summ. J., Ex. A ¶ 3).
Darnell further states that, upon review of the documents in Centex‟s records, she has
determined that Centex, rather than Pulte, developed the Rivermist and Hills of Rivermist
Subdivisions.2 (Id. ¶ 4). Pulte has provided further evidence that corroborates Darnell‟s
statements. Specifically, Pulte has offered the declaration of Trey Marsh, the former Vice
President for Land Development for the San Antonio Division of Centex Homes. Marsh states
that “Centex Homes developed Plaintiffs' residential neighborhoods, Rivermist and The Hills
of Rivermist Subdivisions.” (Reply, Ex. A ¶ 2) (emphasis added). Marsh makes no mention of
Pulte.
Pulte has also offered evidence showing that it was not involved in the sale of
Plaintiffs‟ homes either. In Darnell‟s declaration, she specifically states that Pulte was not
involved in the “sale of the home[s] to the Plaintiffs.” (Mot. Summ. J., Ex. A ¶ 3). An
examination of the New Home Sale Agreements, Exhibits E1-1 through E1-3 to the notice of
removal, supports Darnell‟s statement. Each New Home Sale Agreement is between Centex
and each Plaintiff. Pulte is not a Party to any of the agreements.

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Darnell alleges that because of the merger of Centex Corporation, Centex‟s parent, with Pulte Homes, Inc., she
is the custodian of records and capable to swear to the authenticity of documents in the records of Centex.

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In response to Pulte‟s motion for summary judgment and the evidence that Pulte has
put forth, Plaintiffs essentially make two arguments. One argument is that “Plaintiffs ask that
the Court take judicial notice of both motions to dismiss [in Centex Homes v. Arias &
Associates, Inc., No. 5:12-CV-53-OLG]3 as well as all exhibits and attachments to the motions
because they involve evidence . . . [that] controverts many of the allegations in Pulte Homes of
Texas, L.P.‟s Motion for Summary Judgment evidence.” (Resp. ¶ 7).
Plaintiffs‟ argument cannot defeat Pulte‟s motion for summary judgment for two
reasons. First, the exhibits to which Plaintiffs refer relate to Centex‟s citizenship and were
offered in support of an argument that Centex is a citizen of Texas.4 The exhibits do not
address the development, construction, or sale of Plaintiffs‟ homes or subdivisions, much less
indicate that Pulte was somehow involved in any way. Indeed, the Court is unaware of any
instance in which Pulte is even named in any of the exhibits. Thus, the Court does not see how
these exhibits could possibly contain sufficient evidence to raise a fact issue as to whether
Pulte was involved.
Furthermore, even if there were evidence somewhere in the exhibits indicating that
Pulte was somehow involved with Plaintiffs‟ properties or the retaining wall, Plaintiffs have
failed to sufficiently bring such evidence to the Court‟s attention. The exhibits and
attachments to which Plaintiffs refer are over 400 pages in length. Plaintiffs do not point the
Court to any specific document or exhibit, nor do Plaintiffs suggest how the exhibits might
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Centex filed a lawsuit, also in the U.S. District Court for the Western District of Texas, against Arias &
Associates, Inc. (“Arias”), and Gravity Walls, Ltd. (“Gravity Walls”), the two companies that Centex hired to
design and construct the retaining wall that collapsed.
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The exhibits are attachments to Arias‟ and Gravity Walls‟ motions to dismiss for lack of subject matter
jurisdiction. Defendants Arias and Gravity Walls, citizens of Texas, were attempting to show that complete
diversity was lacking because Plaintiff Centex, a general partnership, has partners that are citizens of Texas.
Thus, Arias and Gravity Walls provided exhibits relating to the citizenships of Centex‟s partners. The exhibits
included, among other documents, PulteGroups‟ 2010 Form 10-K, Hoovers‟ profiles of Centex Real Estate
Corporation and Centex International, Inc., and corporate filings with the Texas Secretary of State.

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implicate Pulte‟s involvement with the subdivisions, homes, or the retaining wall. This Court
is not required to hunt through such voluminous records in search of evidence, which might or
might not exist, in support of Plaintiffs‟ claims; rather, Plaintiffs have the burden of pointing
the Court to the evidence that supports their position.5
Plaintiffs‟ second argument for why Pulte‟s motion for summary judgment should be
denied is that “[b]ased upon information and belief, Defendant Pulte Homes of Texas L.P.
participated in the reconstruction of the wall.” (Resp. ¶ 2) (emphasis added).6 Plaintiffs allege
that the reconstruction of the retaining wall “went on during evening and early morning hours,
as well as weekends, causing substantial disruption in Plaintiffs‟ use and enjoyment of their
property.” (Id.). Plaintiffs, however, do not offer any evidence in support of their argument.
Pulte, on the other hand, has provided several pieces of evidence indicating that it did
not participate in the reconstruction of the retaining wall. In his declaration, Trey Marsh states
that “Centex contracted with Craig Olden, Inc. for the complete design and construction of
repairs to the slope and a new retaining wall.” (Reply, Ex. A ¶ 3) (emphasis added). An
examination of the contract between Centex and Craig Olden, Inc., for the reconstruction of
the retaining wall corroborates Marsh‟s statement. Pursuant to the contract, the work to be
performed by Craig Olden, Inc., included the “[c]omplete engineering design” of the retaining
wall and the “construction of the retaining wall system.” (Reply, Ex. A-1). Pulte is not a party
to the contract and is not even mentioned in the contract. Plaintiffs have not offered any

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See Hernandez v. Yellow Transp., Inc., 670 F.3d 644, 651 (5th Cir. 2012) (“If somewhere in a record there is
evidence that might show a dispute of material fact, the district court needs to be pointed to that evidence as
opposed to having to engage in an extensive search.”).
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The Court notes that Plaintiffs‟ statement could be construed as a concession that Pulte‟s evidence in support of
its motion for summary judgment is sufficient to establish that Pulte did not participate in the original
construction of the retaining wall. However, such a concession would not be necessary for the Court to reach its
holding on Pulte‟s motion.

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argument or evidence, nor is the Court aware of any in the record, that show that Pulte might
have somehow been involved with the reconstruction of the retaining wall.
Thus, upon examination of the arguments and evidence in the record, the Court finds
that Pulte has demonstrated that there is no genuine dispute as to whether Pulte was involved
in the construction, reconstruction, development, or sale of Plaintiffs‟ properties or
subdivisions. Plaintiffs have failed to produce any evidence, and the Court is unaware of any
evidence, that would allow a reasonable juror to conclude that Pulte was somehow involved in
those activities. Therefore, because the Court finds as a matter of law that Pulte was not
involved, Plaintiffs‟ claims for relief against Pulte must be dismissed.
B. Plaintiffs’ Motion to Continue
In their response, Plaintiffs also move the Court to grant a continuance until the parties
are able to complete adequate discovery. (Resp. ¶ 9). Plaintiffs apparently concede that further
discovery will not produce evidence showing that Pulte was involved in the construction,
development or sale of Plaintiffs‟ homes of subdivisions, but allege that “[o]nce the parties are
in a position to conduct discovery in this case, [P]laintiffs will seek documents and
information as to who participated in the wall reconstruction, and specifically who was in
control of the reconstruction process and the range of hours that the work was to be
performed.” (Id. ¶ 8).
Rule 56(d) provides that a court may defer considering a motion for summary
judgment “[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it
cannot present facts essential to justify its opposition.”

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Pulte has submitted unequivocal evidence demonstrating that it was not involved in the
construction or reconstruction of the retaining wall. Plaintiffs have not advanced any argument
specifying why Pulte‟s evidence should not be conclusive, nor have Plaintiffs offered any
argument, affidavits, or declarations explaining how discoverable information might show that
Pulte was somehow involved with the construction or reconstruction of the retaining wall.
Thus, Plaintiffs have failed to show that additional discovery might create a genuine dispute as
to whether Pulte was somehow involved in the sale, construction, or development of Plaintiffs‟
homes or neighborhoods, or as to whether Pulte was somehow involved in the construction or
reconstruction of the retaining wall. Accordingly, the Court finds that it is not necessary to
postpone ruling on Pulte‟s motion for summary judgment.
IV. Conclusion
Plaintiffs have failed to show that there is a genuine dispute as to whether Pulte was
somehow involved in the development, construction, or sale of Plaintiffs‟ properties or
subdivisions, or as to whether Pulte was somehow involved in the construction or
reconstruction of the retaining wall that collapsed.
Accordingly, because the Court finds as a matter of law that Pulte was not involved,
Plaintiffs‟ motion to continue is DENIED and the Court finds that Pulte‟s motion for summary
judgment (Doc. No. 4) must be GRANTED. It is therefore ORDERED that Plaintiffs shall
take nothing on their claims against Pulte and that Plaintiffs‟ claims against Pulte are
dismissed on the merits.
Defendants‟ motion to stay the case (Doc. No. 15) is therefore DISMISSED AS
MOOT.

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Judgment in favor of Pulte shall issue separately accordingly to Rule 58. Pulte is
awarded costs and shall file a bill of costs in the form required by the Clerk of the Court, with
supporting documentation, within fourteen days of the Judgment.
It is so ORDERED.
SIGNED this 15th day of October, 2012.

XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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