Affirmed in Part and Reversed and Remanded in Part and Memorandum Opinion filed April 12, 2005.
In The
Fourteenth Court of Appeals
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NO. 14-04-00388-CV
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ELMER A. RICHARDSON, Appellant
V.
CRAIG AND SHARON DUPERIER, D/B/A LEGACY BUILDING SYSTEMS, Appellees
On Appeal from the 25th District Court
Colorado County, Texas
Trial Court Cause No. 20,704
M E M O R A N D U M O P I N I O N
Appellant Elmer A. Richardson sued Craig and Sharon Duperier, d/b/a Legacy Building Systems (ALegacy@), seeking damages for alleged faulty construction of a building on his property. The trial court granted a summary judgment in Legacy=s favor and dismissed Richardson=s claims. On appeal, Richardson contends the trial court erred in several respects. We affirm in part and reverse and remand in part.
I. Factual Background
Richardson contracted with Legacy to construct a post frame building on his property. The parties later amended the contract to provide that Legacy would prepare the pad site. The construction was completed in the summer of 1998. Several years later, Richardson began encountering problems with the building. On July 1, 2003, Richardson sued Legacy, alleging breach of contract, deceptive trade practices, and breach of implied warranties, based on the building=s allegedly defective foundation.
Legacy moved for summary judgment on the claims Richardson alleged in his first amended petition: (1) breach of contract; (2) breach of the implied warranty of good and workmanlike construction; and (3) violation of sections 17.46(b)(24) and 17.50(a)(2) of the Deceptive Trade Practices-Consumer Protection Act (ADTPA@).[1] In response, Richardson filed a response and a second amended petition in which he added claims for breach of the implied warranty of habitability. On April 1, 2004, the trial court signed an order granting Legacy=s motion and ordering that Richardson take nothing on his claims. This appeal followed.
II. Analysis
Richardson contends that the trial court erred in granting summary judgment because (1) he pleaded the discovery rule in response to Legacy=s affirmative defense of limitations; (2) he raised a genuine issue of material fact on his breach of contract claim; (3) Legacy=s disclaimer of the implied warranty of good and workmanlike construction was not effective; and (4) his DTPA allegations constituted separate claims based on Legacy=s failure to disclose information and its breach of implied warranties. We address each in turn.
A. Standard of Review
Summary judgment may be rendered only if the record shows an absence of a genuine issue of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). A defendant is entitled to summary judgment only if he (1) conclusively negates at least one element of each of the plaintiff's causes of action, or (2) conclusively establishes each element of an affirmative defense to each claim. Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). A summary judgment for the defendant disposing of an entire case is proper only if, as a matter of law, the plaintiff could not succeed on any of the theories pleaded. Butcher v. Scott, 906 S.W.2d 14, 15 (Tex. 1995).
In deciding whether a disputed issue of material fact exists precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548B49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubt resolved in his favor. Id. A summary judgment must stand or fall on the grounds expressly presented in the motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339B41 (Tex. 1993). When, as here, the trial court=s order does not specify the grounds on which a motion for summary judgment was granted, we will affirm the summary judgment if any of the theories advanced in the motion is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex. 1996).
B. Limitations
Legacy moved for summary judgment on Richardson=s breach of contract claim on the affirmative defense of limitations. In its motion, Legacy asserted that the four-year statute of limitations applied to the claim, and that Richardson filed his lawsuit more than four years after the building was completed. In response, Richardson asserted that the discovery rule applied to toll the statute of limitations until he discovered the alleged foundation defects. In an attached affidavit, he stated that he first noticed that the floor of the structure=s upstair=s bedroom was slightly tilted in December of 2001.[2] Richardson also pleaded the discovery rule in his second amended petition and attached a copy of the petition to his response. Therefore, Richardson contended, the statute of limitations was tolled until December 2001, and his suit was timely filed in July of 2003.
A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997). When the plaintiff pleads the discovery rule as an exception to limitations, the defendant must negate that exception as well. See id. at 530; Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990). Although Richardson admitted that he filed suit more than four years after construction of the building was completed, Legacy presented no evidence to negate Richardson=s assertion of the discovery rule.
Legacy contends, however, that the discovery rule cannot apply. In support of this, it contends it presented uncontroverted summary judgment evidenceCin the attached affidavit of Craig DuperierCthat pole barns do not have a foundation and that Richardson=s building was constructed in compliance with the specifications in the contract. Legacy asserts that Richardson=s claims appear to arise from the design of the pole barn, which he was aware of when he signed the contract.
While Legacy is correct that Duperier made these statements in his affidavit, nowhere in Legacy=s motion did it rely on these statements. The only argument Legacy made concerning Richardson=s breach of contract claim was that it was barred because his suit was filed more than four years after the construction was completed. The grounds for summary judgment must be expressly presented in the summary judgment motion itself. Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993); McConnell, 858 S.W.2d at 341. A court may not rely on briefs or summary judgment evidence in determining whether grounds are expressly presented. McConnell, 858 S.W.2d at 341. Thus, all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989).
Because Legacy failed to meet its burden to negate the discovery rule, the trial court erred to the extent it granted summary judgment on Richardson=s breach of contract claim on the basis of limitations.[3] We sustain Richardson=s first issue.
C. Breach of Contract
In his second issue, Richardson contends the trial court erred in granting summary judgment on his breach of contract claim because he raised a genuine issue of material fact. In response, Legacy again points to Duperier=s affidavit as uncontroverted evidence establishing that Richardson=s building was constructed to the specifications in the parties= contract. As discussed above, however, Legacy did not address the substance of the breach of contract claim in its motion.
The trial court would have erred if it granted summary judgment on a ground not expressly raised in Legacy=s motion. See Stiles, 867 S.W.2d at 26. Therefore, we sustain Richardson=s issue.
D. Implied Warranty of Good and Workmanlike Construction
Legacy=s third basis for summary judgment attacked Richardson=s claim for breach of the implied warranty of good and workmanlike construction, noting that the implied warranty was merely a Agap-filler@ and was superseded by an express warranty in the contract. See Centex Homes v. Buecher, 95 S.W.3d 266, 273B75 (Tex. 2002). As we explain below, we hold that the contract=s express warranty that the workmanship would not be defective superseded the implied warranty of good and workmanlike construction.
The warranty is contained in the fourth numbered paragraph of the AGeneral Conditions@ found on the back of the parties= contract. It provides as follows:
[Legacy] warrants its products against failure due to defective workmanship or materials for a period of one year from completion date. [Legacy] does not warrant products which are not manufactured by [Legacy] except to the extent of the warranty [Legacy] may actually receive from the manufacturer. [Legacy=s] liability shall be limited to the written warranties specified herein.
The front page of the contract, just below the signature lines, includes the following reference to these general conditions: ASee reverse side for conditions of contract.@
The Centex court instructs that A[t]he implied warranty of good workmanship serves as a >gap-filler= or >default warranty=; it applies unless and until the parties express a contrary intention.@ Id. at 273. Because it is a gap-filler, Athe parties= agreement may supersede the implied standard for workmanship, but the agreement cannot simply disclaim it.@ Id. at 274. The Centex court explains that, in order to successfully disclaim the implied warranty of good workmanship, the parties= agreement must Aprovide[] for the manner, performance or quality of the desired construction.@ Id. at 275.
Here, the parties= contract did not Asimply disclaim@ the implied warranty of good workmanship. Instead, it superseded the warranty, guaranteeing the home against Afailure due to defective workmanship.@ This description provides an objective standard by which Legacy=s workmanship can be measured. On this description, both parties could locate experts to testify whether the workmanship was defective or was not defective.
Richardson attempts to distinguish Centex by pointing out that the express warranty at issue in that case was set out in all capital letters and was initialed by the purchaser, while the express warranty in Legacy=s contract was Asimply boilerplate language on the reverse side@ of the contract that was Aprobably not even seen by the purchaser.@[4] Richardson cites Melody Home Manufacturing Co. v. Barnes to support his contention that the express waiver here is ineffective, noting that, in that case, the Texas Supreme Court stated A[i]t would be incongruous if public policy required the creation of an implied warranty, yet allowed the warranty to be disclaimed and its protection eliminated merely by a pre-printed standard form disclaimer or an unintelligible merger clause.@ See 741 S.W.2d 349, 355 (Tex. 1987). However, Melody Home is distinguishable for two reasons: (1) it involved a different type of warranty; and (1) that warranty could not be contractually disclaimed as a matter of public policy.
In Melody Home, the Texas Supreme Court held that an implied warranty to repair or modify existing tangible goods or property in a good and workmanlike manner is available to consumers suing under the DTPA. Id. at 354. The Melody Home court further held that this implied warranty Amay not be waived or disclaimed.@ Id. at 355. The statement Richardson relies on followed this holding and provided additional explanation for it. Centex, a more recent opinion, makes it clear that the implied warranty of good and workmanlike constructionCthe warranty at issue hereCmay be disclaimed by the parties= agreement so long as the agreement Aprovide[s] for the manner, performance or quality of the desired construction.@ Centex, 95 S.W.3d at 275.
Therefore, we hold that Legacy was entitled to summary judgment on Richardson=s claim for breach of the implied warranty of good and workmanlike construction because the express warranty in the parties= contract superseded any implied warranty. We overrule Richardson=s third issue.
E. DTPA Violations
In his fourth issue, Richardson contends that Legacy was not entitled to summary judgment on his claims that Legacy violated the DTPA by failing to disclose information and breaching the implied warranties of good and workmanlike construction and habitability. We will address each separately.
1. Failing to disclose information
In his petition, Richardson alleged that Legacy violated section 17.46(b)(24) by failing to disclose that it was not qualified to propose a foundation plan and construct a foundation appropriate for the soil underlying Richardson=s building. In its motion for summary judgment, Legacy contended that this claim was nothing more than a mere breach of contract claim because, like Richardson=s breach of contract and implied warranty claims, Richardson was actually complaining of an allegedly improper foundation, and he sought damages only for economic loss to the subject of the contract. See Continental Dredging, Inc. v. De-Kaizered, Inc., 120 S.W.3d 380, 389B90 (Tex. App.CTexarkana 2003, pet. denied); Lone Star Ford, Inc. v. Hill, 879 S.W.2d 116, 119 (Tex. App.CHouston [14th Dist.] 1994, no writ). Richardson responded that he presented evidence that Legacy (1) violated a specific provision of the DTPA and (2) the violation was a producing cause of his injury. See Bekins Moving & Storage Co. v. Williams, 947 S.W.2d 568, 578 (Tex. App.CTexarkana 1997, no writ).
We agree with Legacy that Richardson does not state a separate claim for violation of the DTPA. Richardson=s contention that Legacy violated the DTPA by failing to disclose that it was not qualified to propose a foundation plan and construct an appropriate foundation is directed to Legacy=s alleged failure to perform the contract rather than any separately actionable nondisclosure that harmed Richardson. See Crawford v. Ace Sign, Inc., 917 S.W.2d 12, 14B15 (Tex. 1996) (per curiam) (holding that mere breach of contract is not actionable under the DTPA). Moreover, Richards does not identify any act by Legacy that misled him into believing that it had the requisite expertise to construct an adequate foundation. In essence, Richardson is claiming that, because Legacy failed to perform the contract, it must have failed to disclose that it was not qualified to perform the contract. Such an allegation, if accepted, could transform every breach of contract into a DTPA violation. See id. at 14. Therefore, we hold that Richardson failed to allege a separate claim that Legacy violated section 17.46(b)(24) of the DTPA.
2. Implied warranties of good and workmanlike construction and habitability
Richardson claims that Legacy=s breach of the implied warranty of good and workmanlike construction also constitutes a violation of sections 17.46(b)(7) and 17.50(a)(2) of the DTPA. See Tex. Civ. Prac. & Rem. Code ' 17.46(b)(7) (providing that deceptive trade practices include Arepresenting that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another@) and ' 17.50(a)(2) (providing that a consumer may maintain an action under the DTPA for the breach of an express or implied warranty that constitutes a producing cause of economic damages or damages for mental anguish). We have already determined, however, that Richardson does not have a claim for violation of this implied warranty, because an express warranty supersedes the implied warranty. Therefore, it cannot be a basis for alleged DTPA violations.
Richardson also alleges that Legacy breached the implied warranty of habitability and that this breach is actionable under section 17.50(a)(2) of the DTPA. We find that Legacy is not entitled to summary judgment on these claims. Breach of the implied warranty of habitability is a separate and distinct warranty from the implied warranty of good and workmanlike construction. See Centex, 95 S.W.3d at 272 (noting that the implied warranty of good and workmanlike construction and the implied warranty of habitability are Adistinct and different warranties@). Richardson filed his second amended petition, adding this claim, after Legacy moved for summary judgment. Legacy did not amend or supplement its motion to address this claim. As we have discussed above, a summary judgment can only be granted on the grounds addressed in the motion. Tex. R. Civ. P. 166a(c); McConnell, 853 S.W.2d at 341. A judgment granting more relief than the movant is entitled to is subject to reversal. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001). Because Legacy did not move for summary judgment on Richardson=s claims that Legacy breached the implied warranty of habitability and that this breach also constitutes a violation of the DTPA, it is not entitled to summary judgment on these claims.
In summary, Legacy was entitled to summary judgment on Richardson=s claim that Legacy violated the DTPA by failing to disclose information. Legacy also was entitled to summary judgment on Richardson=s claims that Legacy=s alleged violation of the implied warranty of good and workmanlike conduct constituted DTPA violations. Legacy was not entitled to summary judgment, however, on Richardson=s claims that Legacy breached the implied warranty of habitability and violated the DTPA based on the breach of this warranty.
III. Conclusion
We affirm the trial court=s summary judgment as to Richardson=s claims of breach of the implied warranty of good and workmanlike construction and violations of the DTPA based on the breach of this warranty. We also affirm the trial court=s summary judgment as to Richardson=s claim that Legacy violated DTPA section 17.46(b)(24) by failing to disclose information. We reverse the trial court=s summary judgment as to Richardson=s claims for breach of contract, breach of the implied warranty of habitability, and violation of the DTPA based on breach of the implied warranty of habitability, and remand these claims to the trial court for further proceedings consistent with this opinion.
/s/ Wanda McKee Fowler
Justice
Judgment rendered and Memorandum Opinion filed April 12, 2005.
Panel consists of Chief Justice Hedges and Justices Fowler and Seymore.
[1] Section 17.46(b)(24) makes unlawful the false, misleading, or deceptive act or practice of Afailing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.@ Tex. Civ. Prac. & Rem. Code ' 17.46(b)(24). Section 17. 50(a)(2) provides that a consumer may maintain an action when the breach of an implied or express warranty constitutes a producing cause of economic damages or damages for mental anguish. See Id. ' 17.50(a)(2).
[2] During 2002, Richardson also noticed that the floor on the bottom of the building developed some Aserious cracks@ and he began having trouble with doors not closing and windows becoming offset.
[3] In their appellate briefs, both Richardson and Legacy discuss whether the statute of limitations applies to Richardson=s other causes of action; however, Legacy=s limitations argument was directed only to Richardson=s breach of contract claim. Accordingly, we need not address those additional arguments.
[4] Richardson does not argue or present evidence that he did not read or understand the provision. Additionally, although Richardson describes the appearance of the disclaimer provision at issue in Centex, that disclaimer does not include the terms of the warranty provided. Instead, the disclaimer recites that A[a]t closing Seller will deliver to Purchaser, Seller=s standard form of homeowner=s Limited Home Warranty against defects in workmanship and materials, a copy of which is available to Purchaser.@ Centex, 95 S.W.3d at 268B69.