COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-245-CV
RICHARD PRESLEY AND APPELLANTS
TINA PRESLEY
V.
SEARS ROEBUCK & CO. APPELLEE
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FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellants Richard Presley and Tina Presley (“Richard,” “Tina,” or
collectively, “Appellants”) appeal from the trial court’s granting of summary
judgment in favor of Appellee Sears Roebuck & Co. (“Sears”). In two issues,
Appellants argue that the trial court erred by granting the summary judgment
on limitations and standing grounds. We will affirm.
1
… See T EX. R. A PP. P. 47.4.
American Remodeling sold, furnished, and installed windows and siding
for residential use under name throughout the 1980s. In late February 1983,
Tina purchased windows and siding for her house, and American Remodeling
installed the new units a few weeks later. The representative who sold Tina
the windows told her and Richard that the windows and siding would remain
in the same condition for twenty or twenty-five years and that they had a
lifetime warranty. According to Appellants, the representative also warranted
that the windows and siding had been installed in a good and workmanlike
manner.
Within two or three weeks after the installation, Appellants noticed that
the windows were leaking. They reported this to American Remodeling, who
inspected the windows and attempted to remedy the leaks by recaulking the
windows. Appellant contacted American Remodeling about a month later
because the windows were leaking once again, sheetrock near the windows
was softening and cracking, and water stains were developing. American
Remodeling again inspected and recaulked the windows. Three months later,
Appellants were still experiencing water damage; sheetrock was becoming
softer, the cracks were larger on each side of the windows, and the inside of
the base of the windowsill was visible, revealing wet, saturated insulation. An
American Remodeling representative inspected and recaulked the windows.
2
Appellants contacted American Remodeling two more times in October 1983
and January 1984 complaining of water infiltration; American Remodeling
recaulked the windows.
At some point before October 1983, an individual who installed windows
and siding for a living inspected Appellants’ windows and informed them that
the windows had been installed incorrectly. One of Appellants’ neighbors also
informed them around January 1984 that the windows had been installed
incorrectly because they were pointing inward instead of outward.
Appellants contacted American Remodeling approximately ten more times
between January 1984 and July 2002 complaining of the leaking windows. In
July 2002, Jerry Joplin, an employee of American Remodeling, inspected the
windows and informed Appellants that the windows needed to be replaced
because they had been installed incorrectly.
Appellants filed suit against Sears on May 4, 2006, for the water leaks
and water infiltration resulting from the allegedly improperly installed windows.
They ultimately asserted claims against Sears for violations of the Deceptive
Trade Practices Act (“DTPA”), breach of contract, negligence, and breach of
express oral warranties. They further alleged that Sears intentionally or
negligently induced them into believing that American Remodeling was Sears’s
agent in the purchase of the windows and siding, that the actions of Sears,
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American Remodeling, or both constituted fraudulent concealment, and that
Sears was vicariously liable as a result of the apparent authority of American
Remodeling to act on Sears’s behalf. Sears generally denied each of
Appellants’ allegations and asserted that Appellants’ claims were time-barred
by the applicable statute of limitations and that Richard lacked standing to sue.
Sears moved for summary judgment on its limitations and standing affirmative
defenses, and the trial court granted summary judgment in favor of Sears on
both grounds and on all of Appellants’ claims. This appeal followed.
In their first issue, Appellants argue that the trial court erroneously
granted summary judgment in favor of Sears because they brought forth
evidence raising a genuine issue of material fact on Sears’s limitations
affirmative defense. Sears contends that the trial court properly granted
summary judgment on its limitations affirmative defense because the statute of
limitations bars Appellants’ breach of warranty claim, which accrued in 1983.2
2
… As to the limitations ground, Appellants challenge only the trial court’s
grant of summary judgment on their breach of warranty claim; they include no
argument or analysis (1) setting forth the applicable statute of limitations and
relevant law for their DTPA, negligence, and breach of contract claims and (2)
explaining why their summary judgment evidence raised a fact issue on those
claims. To the extent Appellants’ brief can be construed as arguing that the
trial court erroneously granted summary judgment on limitations grounds as to
all of their claims because they raised a fact issue on their fraudulent
concealment defense, our analysis of their concealment defense below resolves
that argument, if made.
4
In a summary judgment case, the issue on appeal is whether the movant
met the summary judgment burden by establishing that no genuine issue of
material fact exists and that the movant is entitled to judgment as a matter of
law. T EX. R. C IV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,
215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,
678 (Tex. 1979). The burden of proof is on the movant, and all doubts about
the existence of a genuine issue of material fact are resolved against the
movant. Sw. Elec. Power Co., 73 S.W.3d at 215. When reviewing a summary
judgment, we take as true all evidence favorable to the nonmovant, and we
indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
A defendant is entitled to summary judgment on an affirmative defense
if the defendant conclusively proves all the elements of the affirmative defense.
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). To
accomplish this, the defendant-movant must present summary judgment
evidence that establishes each element of the affirmative defense as a matter
of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). Thus,
a defendant who moves for summary judgment on the affirmative defense of
limitations has the burden to conclusively establish the defense, which includes
proving when the cause of action accrued and, if applicable, negating the
5
discovery rule by proving as a matter of law that there is no genuine issue of
material fact about when the plaintiff discovered, or in the exercise of
reasonable diligence should have discovered, the nature of its injury. KPMG
Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.
1999); Dean v. Frank W. Neal & Assocs., Inc., 166 S.W.3d 352, 355–56 (Tex.
App.—Fort Worth 2005, no pet.). If the movant establishes that the statute of
limitations bars the action, the nonmovant must then adduce summary
judgment proof raising a fact issue in avoidance of the statute of limitations.
KPMG Peat Marwick, 988 S.W.2d at 748.
The Uniform Commercial Code provides a four-year limitation period for
breach of an express warranty. T EX. B US. & C OM. C ODE A NN. § 2.725(a)
(Vernon 1994); PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146
S.W.3d 79, 92 (Tex. 2004); Safeway Stores, Inc. v. Certainteed Corp., 710
S.W.2d 544, 546 (Tex. 1986). A cause of action for breach of warranty
accrues when the breach occurs, and a breach of warranty occurs when tender
of delivery is made, except that where a warranty explicitly extends to future
performance of the goods and discovery of the breach must await the time of
such performance, the cause of action accrues when the breach is or should
have been discovered. T EX. B US. & C OM. C ODE A NN. § 2.725(b); PPG Indus.,
Inc., 146 S.W.3d at 92–93; Safeway Stores, Inc., 710 S.W.2d at 546; Carlisle
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Corp. v. Med. City Dallas, Ltd., 196 S.W.3d 855, 862 (Tex. App.—Dallas
2006, pet. granted). For an express warranty to meet the exception in section
2.725(b), it must make specific reference to a specific date in the future.
Safeway Stores, Inc., 710 S.W.2d at 548; Belmonte v. Baxter Healthcare
Corp., No. 05-00-01579-CV, 2002 WL 560996, at *4 (Tex. App.—Dallas Apr.
16, 2002, no pet.) (not designated for publication).
In support of its motion for summary judgment, Sears attached excerpts
from Richard’s and Tina’s depositions and an affidavit and deposition excerpts
of James Sparling, the “National Business Manager [of] Home Services for
[Sears].” Sears’s summary judgment evidence demonstrates that Tina
purchased the windows and siding in late February 1983. The representative
who sold the windows and siding to Tina stated that the goods had a twenty-
five year or lifetime warranty or guarantee. Appellants experienced significant
problems with leaks occurring over the next eleven months. The water
infiltrated Appellants’ home through the windows and caused damage to
sheetrock and insulation. Appellants were told by two individuals—once in
1983 and once in January 1984—that the windows had been installed
incorrectly.
Assuming without deciding or agreeing that the warranty accompanying
the windows and siding was an express warranty meeting the exception in
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section 2.725(b) of the business and commerce code, Sears’s summary
judgment evidence establishes that Appellants discovered or should have
discovered the breach in 1983 or January 1984, when Appellants experienced
significant damage to their home as a result of the leaking windows.
Appellants’ breach of an express warranty cause of action thus accrued no later
than January 1984, but they did not file suit until May 4, 2006, approximately
twenty-two years later. We hold that Sears met its burden of conclusively
establishing that Appellants’ breach of warranty claim is barred by the
applicable statue of limitations as a matter of law.
Appellants’ summary judgment evidence includes their affidavits and
excerpts from their depositions. They argue that they raised a fact issue on
Sears’s limitations affirmative defense because “there was no breach of the
express warranty contract for failing to perform future curative work upon
which [they] could assert a claim” prior to Sears’s “2002 repudiation of its
lifetime warranty.” But Appellants’ breach of warranty claim did not accrue
when Sears repudiated its lifetime warranty; it accrued no later than January
1984 because that is when Appellants discovered or should have discovered
the breach. See T EX. B US. & C OM. C ODE A NN. § 2.725(b). The supreme court
addressed a similar argument in PPG Industries and reasoned as follows:
8
We did not hold (as JMB asserts) in Austin Co. v. Vaughn
Building Corp. that limitations was tolled until a seller stops making
repairs; instead, we held a warranty for repair services was not
breached until further repairs were refused. A warranty to make
repairs is a warranty for services, not of goods, and thus falls
outside the UCC. We long ago held that limitations accrues upon
breach of a repair warranty only if that was the basis of the suit;
if instead the basis was a warranty as to the goods themselves,
limitations accrues upon delivery.
In this case, JMB asserted no claim for breach of a repair
warranty. . . . JMB’s complaints arose from defects in the
underlying goods, and thus accrued when they failed, not when
PPG refused to keep manufacturing and sending replacements with
the same problem.
PPG Indus., Inc., 146 S.W.3d at 96 (citations omitted). Likewise, here,
Appellants’ claim is for breach of an express warranty involving goods, not
breach of a repair warranty, and Appellants’ cause of action thus accrued when
they discovered or reasonably should have discovered the breach of warranty,
not when Sears repudiated the warranty.3
3
… It is not clear from Appellants’ brief, partly because they rely on
section 2.725(b) of the business and commerce code for their argument, but
if they are attempting to argue that they raised a fact issue concerning Sears’s
breach of a repair warranty, we note that they produced no summary judgment
evidence showing that Sears ever made a warranty for repair services;
Appellants have only produced summary judgment evidence that Sears made
a warranty for the windows and siding and a warranty that the windows had
been installed in a good and workmanlike manner. Moreover, although
Appellants state that Sears “warranted . . . that the windows had been installed
in a good and workmanlike manner,” we are unable to determine from
Appellants’ brief if they are challenging the trial court’s decision to grant
summary judgment in favor of Sears on this warranty, which is a claim not
9
Appellants further attempt to avoid the effects of the statute of
limitations by arguing that they submitted evidence raising a genuine issue of
material fact that Sears fraudulently concealed the breach of warranty. They
argue that their breach of warranty cause of action accrued in 2002 because
“[i]t was not until July 30, 2002, when Jerry Joplin was sent out by Defendant
in response to the continuing complaint, that Plaintiffs were told that the
problem was in the installation of the siding and windows and caulking would
not fix the problem.”
Accrual of a cause of action is deferred in a case involving fraudulent
concealment. S.V. v. R.V., 933 S.W.2d 1, 6 (Tex. 1996); Computer Assocs.
Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455–56 (Tex. 1996). Fraudulent
concealment works to estop a defendant from asserting limitations as a defense
because a person cannot be permitted to avoid liability for his actions by
deceitfully concealing wrongdoing until limitations has run. S.V., 933 S.W.2d
at 6. When a defendant has fraudulently concealed the facts forming the basis
of the plaintiff’s claim, limitations does not begin to run until the claimant, using
reasonable diligence, discovered or should have discovered the injury. KPMG
involving goods and, thus, not subject to analysis under the UCC. Because
Appellants provide no analysis or explanation differentiating this argument from
their breach of warranty-goods argument, it is waived to the extent they assert
such an argument. See T EX. R. A PP. P. 38.1(h).
10
Peat Marwick, 988 S.W.2d at 750. The elements of fraudulent concealment
are (1) the existence of the underlying tort, (2) the defendant’s knowledge of
the tort, (3) the defendant’s use of deception to conceal the tort, and (4) the
plaintiff’s reasonable reliance on the deception. Glover v. Union Pac. R.R. Co.,
187 S.W.3d 201, 217 (Tex. App.—Texarkana 2006, pet. denied); Mitchell
Energy Corp. v. Bartlett, 958 S.W.2d 430, 439 (Tex. App.—Fort Worth 1997,
pet. denied). Fraudulent concealment thus requires actual knowledge by the
defendant that a wrong has occurred and “a fixed purpose to conceal the facts
necessary for the plaintiff to know that it has a cause of action.” Vial v. Gas
Solutions, Ltd., 187 S.W.3d 220, 230–31 (Tex. App.—Texarkana 2006, no
pet.).
Citing to their affidavits, Appellants contend that Sears “concealed the
improper installation of the windows by repeatedly misrepresenting what was
needed to cure the problem,” that Sears told them “the only thing needed to
repair the windows was a bit of caulking,” and that they relied on Sears’s
representations because they are not knowledgeable in window installation or
repair. The affidavits of both Tina and Richard affirm that Sears representatives
told them that the only repair to the windows needed was additional caulking,
that there were no problems with the windows that the caulking would not fix,
and that the problems with the windows were fixed. Indulging every
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reasonable inference and resolving any doubts in Appellants’ favor, we
conclude that neither Tina’s nor Richard’s affidavit set forth any evidence
raising a genuine issue of material fact that Sears used any deception to
conceal the facts underlying the breach of warranty. The summary judgment
evidence demonstrates that the representatives were simply incorrect in their
assessment of the repairs needed to remedy the problems associated with the
window, and Appellants’ claim that Sears fraudulently concealed the fact that
the windows had been installed incorrectly amounts to mere suspicion.
“[S]ome suspicion linked to other suspicion produces only more suspicion,
which is not the same as some evidence.” Browning-Ferris, Inc. v. Reyna, 865
S.W.2d 925, 927 (Tex. 1993). Appellants therefore failed to raise a genuine
issue of material fact on an essential element of their fraudulent concealment
defense to Sears’s limitations affirmative defense.
We hold that Appellants failed to bring forth summary judgment evidence
controverting Sears’s conclusive evidence that Appellants’ breach of warranty
claim is barred by the applicable statute of limitations. Consequently, we hold
that the trial court did not err by granting summary judgment in favor of Sears
on its limitations affirmative defense. Accordingly, we overrule Appellants’ first
issue.
12
Because we hold that the trial court properly granted summary judgment
on Sears’s limitations affirmative defense, we need not consider whether the
trial court erroneously granted summary judgment on Sears’s standing defense.
See T EX. R. A PP. P. 47.1.
Having overruled Appellants’ first issue and determined that we need not
consider their second issue, we affirm the trial court’s judgment.
DIXON W. HOLMAN
JUSTICE
PANEL B: DAUPHINOT, HOLMAN, and WALKER, JJ.
WALKER, J. concurs without opinion.
DELIVERED: March 27, 2008
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