dissenting.
I respectfully dissent. If the court is bound by how appellants characterized the facts in their petition, then the majority is correct in holding that appellants’ “negligence” suit is barred by the two year stat*143ute of limitations. But, if the court must look to the facts as alleged and apply the substantive law to those facts to determine the cause of action, then the majority is wrong in their holding because the suit arose out of business dealings between the parties based on contract and breach of warranty.
Are appellants barred by the two year statute of limitations because they characterized the facts as negligence?
In Bernard, Johnson v. Continental Constructors, 630 S.W.2d 365 (Tex.App.— Austin 1982, writ ref d n.r.e.), a contractor brought action against the Parks and Wildlife Department and the architect on a bulkhead project. Appellee alleged appellant was negligent as follows:
Plaintiff would show that said Defendant failed to properly administer the Bulkhead Project. Due to the failure of said Defendant to properly process the change orders and administer said Project, Plaintiff suffered extensive delays and the increased costs resulting therefrom. Said Defendant abrogated its responsibilities in supervising and administering the Bulkhead Project. The acts and/or omissions on the part of said Defendant constitute negligence as that term is understood in law. Such negligence proximately caused Plaintiffs damages, which Plaintiff would show greatly exceed the minimum jurisdictional limits of this court.
Id. at 367. Clearly, plaintiff set forth the facts and then called defendants’ actions negligent. The court said
[wjhether the plaintiffs factual allegations set forth a right, a duty and a breach cannot be determined except by reference to the substantive law.... It is inconceivable that appellee could maintain its action against appellant without proving at trial the contents of the bulkhead contract and the resulting duty said to be placed upon appellee therein. In such cases, any action is said to be in substance an action on the contract, even though it is denominated an action for negligent performance of the contract.
Id. at 368 (emphasis in original). In the instant case, appellants can not prove any duty unless they first prove that an agreement existed whereby appellees would provide the services and products appellants now complain about.
In Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493 (Tex.1991), the Supreme Court considered whether a cause of action for negligence is stated by an allegation that a telephone company negligently failed to perform its contract to publish a Yellow Pages advertisement. The court of appeals held that Bell’s cancellation of De-Lanney’s Yellow Pages advertisement was correctly submitted as a negligence claim. The dissenting justice argued that because DeLanney sought damages for breach of a duty created under the contract, rather than a duty imposed by law, the claim sounded only in contract. Id. at 494. The Supreme Court agreed with the dissenting opinion. Although DeLanney pleaded action as one in negligence, the Court found that after looking to the facts, Bell’s failure to publish the advertisement was not a tort but was solely a cause of action based on contract. Id. at 495.
In the present ease, appellants pleaded from the beginning that goods and services provided by appellees for completion of appellant’s oil and gas well were defective and that such defective goods and services damaged the well. In appellants’ original petition, appellants state:
MAXAM
Maxam Tool and Supply supplied a floatshoe and collar and related equipment for use in casing cementing operations of the well. Such equipment was defectively manufactured or designed and was placed in commerce by said Defendant for use by Plaintiffs. Said equipment was negligently inspected, used or maintained by said Defendant. As a proximate result of such defect or negligence, said equipment failed in the well proximately causing an ineffective primary cement operation. As a consequence, the well and productive forma*144tions were damaged and additional unnecessary expense was incurred by Plaintiffs.
(Emphasis added.)
In their original petition, appellants allege that the equipment was defectively manufactured or designed and was placed in commerce for use by plaintiffs [appellants].
In their original petition, appellants state:
AMERICAN SURVEYS
On or about July 3, 1984 American Surveys, Inc. negligently ran a cement bond log in the well which was incorrect and unduly optimistic. As a proximate result of such negligence, completion of the well was begun without necessary hydraulic isolation.
(Emphasis added.)
In the original petition appellants allege American Surveys performed a cement bond log that was incorrect and unduly optimistic. Appellants are complaining of the services they had contracted for with American Surveys.
In their original petition, appellants state:
ALLSTATE and UNIBAR
Defendants Allstate Vacuum Services and Unibar Drilling Fluids were negligent in formulating or failing to test fluids used in completing the well. As a proximate result of such negligence, scale and flakes consisting of gypsum and anhydrite formed in the tubing. Such scale and precipitates formed as a result of the interaction of formation fluids and calcium chloride water. Plaintiffs allege that such scale and precipitates would not have formed had the Defendants properly formulated and tested the calcium chloride water they furnished to Plaintiffs. The scale and precipitates which formed flowed into productive formations where they blocked the flow of hydrocarbons and were the proximate cause of loss of production and permanent damage to productive oil and gas formations penetrated by the well.
(Emphasis added.)
In their third amended petition, appellants joined Chromalloy. Appellants petition as to Chromalloy, states:
Defendants Allstate Vacuum & Tanks, Inc., Chromalloy American Corp. and Unibar Drilling Fluids were negligent in formulating, testing, transporting or failing to test fluids used in completing the well. As a proximate result of such negligence, scale and flakes consisting of gypsum and anhydrite formed in the tubing. Such scale and precipitates formed as a result of the interaction of formation fluids and calcium chloride water. Plaintiffs allege that such scale and precipitates would not have formed had the Defendants properly formulated, tested and transported the calcium chloride water they furnished to Plaintiffs. The scale and precipitates which formed flowed into productive formations where they blocked the flow of hydrocarbons and were the proximate cause of loss of production and permanent damage to productive oil and gas formations penetrated by the well.
(Emphasis added.)
Appellants are obviously complaining about the product sold to them by appel-lees.
Appellants’ causes of action are based on business dealings between appellants and appellees. The statute of limitations is an affirmative defense that must be pleaded and proved. When appellees pleaded the statute of limitations, appellants filed their fourth amended petition wherein they characterized the alleged facts as breach of contract and warranty. Because of a long line of cases, we know the label given to such facts is irrelevant. Appellants’ petitions allege facts sufficient to state a cause of action for breach of contract, warranty and DTPA, all of which are governed by four year statute of limitations. Because all appellees were served within four years from the date the causes of action arose, there is no reason to apply the relation back doctrine.
*145I would reverse and remand for a trial on the merits.