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Trussway6/27/1996
This appeal arises from an action filed by homeowners Don and Pamela Wetzel for the inadequate construction of their residence, resulting in over one million dollars worth of damage. The central issue remains whether
Appellant Trussway, Inc., the sole defendant held liable for the damages, has waived its right to complain of the trial court's judgment in light of a settlement agreement it reached with the Wetzels after the final judgement had been entered. We answer this question affirmatively. The judgement of the trial court is affirmed.
Don A. and Pamela G. Wetzel contracted with a multitude of architects and construction companies to build a home in The Woodlands, Texas.
Appellant Trussway, Inc. was assigned to provide and employ the trusses necessary to support the structure. Ultimately, the trusses failed to provide adequate support, causing heavy damage to the residence. On July 13, 1992, the Wetzels sued the appellant Trussway, the numerous appellees, and several other entities not parties to this appeal. By their Third Amended Original Petition, the Wetzels alleged breach of contract and warranty, deceptive trade practices, misrepresentation, negligent misrepresentation, negligence, gross negligence, and strict liability. Trussway filed cross-claims for contribution and indemnity against all of the appellees for negligently failing to supply the proper information necessary to design trusses that would adequately support the construction of the home.
At the conclusion of the trial, the jury found Trussway and the appellees negligent in varying degrees, thus causing the damages suffered by the Wetzels. The jury also found liability on the part of Trussway for deceptive trade practices. The trial court, in its judgment, made a finding that this case was founded solely in contract and deceptive trade practices, and found the jury's answers with regard to negligence and gross negligence should be disregarded. The trial court entered judgement for the Wetzels and against appellant Trussway for $1,052,500.00 (one million fifty-two thousand and five hundred dollars) for actual damages, $125,000.00 for attorney's fees (pre-trial and trial), $137,000.00 in attorney's fees for appeal, and ten percent interest on the award. The court entered a take-nothing judgment against Trussway on its cross-claims for contribution and indemnity filed against Appellees. Trussway perfected its appeal.
Appellant filed its brief contending in six points of error the trial court erred by disregarding the jury's findings of negligence against the appellees, thereby depriving appellant of its purported right to contribution and indemnity.
On September 12, 1994, appellant Trussway and the Wetzels, the original complainants in this suit, signed a "Release of Judgment" as well as an "Agreement to Settle and Release," both of which were filed with the trial court on December 27, 1994. The terms of the agreement and release are set out hereinafter.
Appellant's brief was filed in mid-December 1994, following the Release of Judgement and the Agreement to Settle and Release.
Appellees contend appellant Trussway has waived any complaints it may have with regard to the trial court's judgment, and in particular the take-nothing judgments entered against Trussway and in favor of its cross-defendants (appellees), as Trussway has settled its claims with the Wetzels post-trial. We agree.
The judgement in this case specifically provides in pertinent part,
"IT IS FURTHER ORDERED that Trussway take nothing on its cross-claims against Anderson & Associates, W. Anderson, Gatewood, Gatewood & Associates, J
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