In 2004, the Byers family hired Jered Custom Homes (“JCM”) to build their home. Since Brad Byers worked for an engineering firm, he had his own company design the foundation. To protect itself, JCM included a provision in its contract with the Byerses that Brad Byers and his firm would be entirely responsible for the design and sufficiency of the foundation and that the Byerses would be responsible for all necessary soil and subsoil tests. Two years later, the Byerses sold their home to appellant, Kay Yost. Shortly after moving in, however, Yost noticed that the locks installed in the doors no longer fit. Yost hired a series of inspectors, and ultimately concluded that the house’s foundation had suffered cracking caused by issues with its design with an estimated cost of repair of $524,563. Yost sued JCM for damages associated with the house, but JCM moved for a no evidence summary judgment and the court granted it, ordering that Yost take nothing.
On appeal, the Court agreed with the trial judge’s decision. Yost argued that the affidavits of her two experts provided sufficient evidence to survive summary judgment. But the Court of Appeals found that nothing in the expert reports presented any evidence that JCM itself was negligent in constructing the house’s foundation in accordance with the design prepared by Byers’ employer. Indeed, although Yost’s expert report stated that it is customary practice in the home construction industry for a geotechnical report to be obtained and reviewed, “he does not state who should review it or utilize its information.” Nevertheless, the Court reversed the trial judge’s decision on Yost’s claim for breach of the implied warranty of habitability because Yost’s failure to produce documents evidencing that the how was not uninhabitable did not constitute a judicial admission.