Affirmed and Memorandum Opinion filed May 17,=20
2007.
In The
Fourteenth=20
Court of Appeals
____________
NO. 14-06-00129-CV
____________
SCOTT=20
FISH,=20
Appellant
V.
MARSTERS=20
COMPANY, FRANK H. MARSTERS, INDIVIDUALLY, AND PEDIGO SERVICES,=20
INC.,=20
Appellees
On Appeal from the =
268th District Court
Fort Bend=20
County, =
Texas
Trial Court Cause =
No. 02-CV-123439A
M E M O R=20
A N D U M O P I N I O N
This is an=20
appeal from summary judgments in which the trial court dismissed =
claims=20
asserted by a homeowner against the general contractor that built =
his=20
house, the owner of the general contractor, and one of the=20
subcontractors. The homeowner, who was not the original =
owner,=20
asserted claims which allegedly arose from the original =
construction and=20
from repair efforts made after he bought the home. The trial =
court=20
granted summary judgment and dismissed all the =
homeowner=3Ds claims=20
against the general contractor and its owner and dismissed some of =
the=20
claims against the subcontractor. The trial court =
severed some=20
of the homeowner=3Ds claims=20
into this case to make the summary judgments final. We =
conclude that=20
some of the homeowner=3Ds=20
arguments on appeal are directed at claims that were not severed =
into this=20
case. As to the remaining claims, we conclude that, with one =
exception, the homeowner either has not challenged all independent =
summary-judgment grounds or has waived any error. As to the=20
homeowner=3Ds=20
negligence claim against the general contractor and its owner, we =
conclude=20
that the trial court properly granted summary judgment based on =
the=20
affirmative defense of limitations. Accordingly, we affirm =
the trial=20
court=3Ds=20
judgment.
I. =20
Factual and Procedural=20
Background
A. =20
Original Construction and Purchase of the House
Appellee=20
Marsters Company, owned by Frank Marsters, built a home in Sugar =
Land,=20
Texas (hereinafter the AHouse@). =20
Marsters Company was the general contractor during the =
construction of the=20
House, and it hired several subcontractors, one of which was =
appellee=20
Pedigo Services, Inc., a company that performed the stucco, =
roofing, and=20
flashing work during the initial construction. Marsters sold =
the=20
House to Jitendra Patel on January 20, 1999.
B. =20
Subsequent Sale and Inspection of the =
House
Approximately=20
fourteen months later, in early 2000, appellant Scott Fish became=20
interested in purchasing the House. Although Marsters =
does not=20
recall ever getting a call from Fish, Fish testified during his =
deposition=20
that before buying the House, he contacted Marsters to inquire =
about=20
certain water stains that he had observed during his initial =
visual=20
inspection of the House. Fish had noted a large stain =
in the=20
sheetrock in the first-floor ceiling outside the den door and =
underneath=20
the deck. He also had seen a stain in the sheetrock running =
up and=20
down the left side of a window in the den. Fish testified =
that=20
Marsters, without inspecting the House to see the stains himself, =
told=20
Fish over the phone that the stain under the deck most likely was =
caused=20
by moisture and wind coming off the lake behind the House and that =
this=20
problem could be corrected by caulking the window. As for =
the stains=20
on the left side of the den window, Fish stated that Marsters =
informed him=20
that they probably were caused by lack of caulking. =20
Fish admitted that Marsters did not specifically state that there =
were no=20
other possible reasons for the stains.=20
Despite=20
his alleged concerns, Fish entered into an earnest money contract =
to=20
purchase the House from Patel. Approximately ten days =
later,=20
on February 17, 2000, Fish obtained a formal inspection of the=20
House. The inspector stated that there was evidence of water =
or=20
moisture penetration at the den window and that there was evidence =
of=20
moisture stains on the ceiling at the rear patio. As to the =
latter=20
stain, the inspector suggested that Fish remove the upper balcony =
decking=20
for a further inspection. Fish, however, took no further =
action in=20
response to the inspector=3Ds=20
recommendations. Furthermore, Fish did not request that =
Patel repair=20
the problems; instead, he proceeded with the purchase of the House =
the=20
following month. The closing for the sale of the =
House=20
occurred in March 2000.
C. =20
Repair Work on the House
After=20
buying the House, Fish spent a few months remodeling the home in =
areas=20
that did not pertain to the stains that Fish previously had =
noticed. =20
During this period, Fish had a swimming pool installed and =
arranged for=20
other work to be performed, including replacement of sheetrock,=20
installation of slate decking around the swimming pool and =
second-floor=20
balcony, landscaping, and the addition of a room above the garage =
which=20
required major structural reconfiguration of the garage ceiling=20
joists. Fish also had all of the interior cabinetry, =
countertops,=20
plumbing fixtures, and flooring removed. This extensive =
remodeling=20
work was completed by Mike McCarty of Fish Construction, Inc., and =
it was=20
supervised by both Fish and Morris Ashley of Ashley =
Enterprises. =20
During this time, Fish did not investigate or address any of the =
concerns=20
raised in the inspection report regarding the ceiling and wall=20
stains.
Finally,=20
in July 2000, after finding evidence of rotting wood around the =
den=20
window, Fish contacted Marsters about the water damage, =
including=20
but not limited to, the windows and the stucco. Fish asked =
Marsters=20
to come and inspect the property and stated that repairs were=20
needed. After Marsters inspected the property around the =
middle of=20
July, Pedigo was contacted to come and inspect the property. =
Soon=20
thereafter, Pedigo visited the House and determined that the =
stucco on the=20
back of the House had to be removed and replaced. =
Pedigo=20
agreed, at its own cost, to replace the stucco. Pedigo =
prepared and=20
provided Fish with a three-page remediation proposal. =
Although=20
Fish accepted this proposal, Fish demanded that all work be done =
under the=20
supervision of French Engineering, a company Fish had =
hired. =20
After several months, this situation proved to be unworkable, and =
Pedigo=20
offered to pay Fish $9,000 to finish the job himself. Fish =
declined=20
this offer. Pedigo then asked Marsters to finish the =
job.=20
Marsters declined. Fish then hired another contractor to =
complete the repairs. Fish contends that these repairs cost =
him over=20
$400,000.
D. =20
Homeowner=3Ds Claims=20
Against the General Contractor and=20
Subcontractor
On March=20
21, 2002, Fish filed a lawsuit against Marsters Company and Frank=20
Marsters, Individually (hereinafter collectively AMarsters@) and=20
Pedigo, alleging, among other things, that Marsters and Pedigo =
were=20
negligent in the original construction of the House and in =
subsequently=20
repairing the House. =20
Marsters filed a motion for summary judgment asserting both =
traditional=20
and no-evidence grounds. The trial court granted=20
Marsters=3D =
motion=20
without specifying the grounds for its ruling. Pedigo later =
filed a=20
traditional motion for summary judgment. Fish filed a =
motion=20
to sever his claims against Pedigo from his claims against =
Marsters, so as=20
to make the trial court=3Ds summary=20
judgments final. The trial court later granted =
Pedigo=3Ds motion=20
for summary judgment in part and denied it in part, and at =
the same=20
time, the trial court granted a severance to make its summary =
judgments=20
final. In its order, the trial court severed into this case =
all of=20
Fish=3Ds claims=20
against Marsters and his claims against Pedigo as to the original=20
construction of the House, while leaving in the original case=20
Fish=3Ds claims=20
against Pedigo as to subsequent repairs to the House. The =
trial=20
court stayed the nonsevered case pending the appeal in this =
case. =20
The trial court thereafter signed a new order granting =
Pedigo=3Ds=20
traditional motion for summary judgment as to all claims pending =
in this=20
case without specifying the grounds for its ruling. =
II. =20
Issues Presented=20
Appealing=20
the trial court=3Ds summary=20
judgments in favor of Marsters and Pedigo, Fish asserts the =
following=20
issues:
1. =20
The trial court erred in granting summary judgment when fact =
issues=20
existed on all of his claims against Marsters and Pedigo. =
2. =20
The trial court erred in failing to construe each fact and =
inference in=20
Fish=3Ds favor.
3. =20
The trial court erred in granting summary judgment because there =
is an=20
issue of fact as to whether Fish=3Ds claim for fraud =
and=20
misrepresentation accrued prior to his purchase of the House, at =
the time=20
of a misrepresentation, or when Fish acted on the =
misrepresentation and=20
purchased the House.
4. =20
The trial court erred in granting summary judgment because there =
is an=20
issue of fact as to whether the discovery rule is negated by a =
routine=20
pre-purchase home inspection that failed to reveal the real =
problem with=20
the House.
5. =20
The trial court erred in granting summary judgment because there =
is a fact=20
issue as to whether Pedigo and Marsters are immunized from =
fraud and=20
misrepresentation claims because Fish undertook his own inspection =
of the=20
House.
6. =20
The trial court erred in granting summary judgment because there =
is a fact=20
issue as to whether Fish=3Ds original =
inspection=20
precluded liability of Pedigo and Marsters and whether =
Pedigo=3Ds and =
Marster=3Ds actions in =
repairing the=20
House created liability.
7. =20
The trial court erred in granting summary judgment because there =
is a fact=20
issue as to whether Pedigo and Marsters are liable to Fish even =
though=20
Fish undertook his own inspection of the House.
8. =20
The trial court erred in granting summary judgment because there =
are fact=20
issues as to whether Fish was required to pay for the repairs to=20
bring a breach-of-contract claim or claim under the Texas =
Deceptive=20
Trade Practices Act (ADTPA@) and whether =
pre-existing=20
warranty obligations and forbearance from suit by Fish constitute=20
sufficient consideration.
9. =20
The trial court erred in granting summary judgment because there =
are=20
issues of fact as to whether Pedigo and Marsters can be held =
liable in=20
connection with the repairs to the House even though the allegedly =
defective repairs were inspected by an engineer representing=20
Fish.
III. Standards of=20
Review
In reviewing a =
traditional=20
summary judgment, we consider whether the successful movant at the =
trial=20
level carried its burden of showing that there is no genuine issue =
of=20
material fact and that judgment should be granted as a matter of=20
law. KPMG Peat Marwick v. Harrison County Hous. Fin. =
Corp.,=20
988 S.W.2d 746, 748 (Tex. 1999). To be entitled to summary =
judgment,=20
a defendant must conclusively negate at least one essential =
element of=20
each of the plaintiff=3Ds causes of action or =
conclusively establish each element of an affirmative =
defense. =20
Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.=20
1997). Under this traditional standard, we take as true all =
evidence=20
favorable to the nonmovant, and we make all reasonable inferences =
in the=20
nonmovant=3Ds favor. =
Dolcefino v.=20
Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] =
2000, pet.=20
denied). If the movant=3Ds motion and =
summary-judgment=20
evidence facially establish its right to judgment as a matter of =
law, the=20
burden shifts to the nonmovant to raise a genuine, material fact =
issue=20
sufficient to defeat summary judgment. Id.
In=20
reviewing a no‑evidence summary judgment, we ascertain =
whether the=20
nonmovant pointed out summary‑judgment evidence of probative =
force to=20
raise a genuine issue of fact as to the essential elements =
attacked in the=20
no‑evidence motion. Johnson v. Brewer & =
Pritchard, P.C.,=20
73 S.W.3d 193, 206B08 (Tex.=20
2002). We take as true all evidence favorable to the =
nonmovant, and=20
we make all reasonable inferences therefrom in the =
nonmovant=3Ds=20
favor. Dolcefino, 19 S.W.3d at 916. A =
no‑evidence=20
motion for summary judgment must be granted if the party opposing =
the=20
motion does not respond with competent summary‑judgment =
evidence that=20
raises a genuine issue of material fact. Id. at =
917. =20
When, as in this case, the order granting summary judgment does =
not=20
specify the grounds upon which the trial court relied, we must =
affirm=20
summary judgment if any of the independent summary-judgment =
grounds is=20
meritorious. See Ramco Oil & Gas Ltd. =
v.=20
Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 826 (Tex. =
App.CHouston=20
[14th Dist.] 2006, pet. denied).
=
; =
&=
nbsp; &n=
bsp; =20
IV. Analysis
A. =20
Which of the claims asserted by the homeowner are before us in =
this=20
appeal?
We first=20
must determine which claims as asserted by Fish against Marsters =
and=20
Pedigo are before us in this appeal. In his live =
pleading,=20
Fish asserted the following claims against Pedigo and Marsters:=20
1. =20
Negligence. Fish contends that both Marsters and =
Pedigo=20
negligently and improperly performed the original construction and =
the=20
repairs.
2. =20
Negligent Misrepresentation. Fish contends that both =
before=20
and after his purchase of the House, and during the repair =
process, Pedigo=20
and Marsters made numerous representations that the work was being =
performed properly and in a good and workmanlike manner. =
Fish states=20
that such representations were false, and he relied on these =
statements to=20
his detriment, causing him to suffer =
damages.
3. =20
Breach of Contract. Fish contends that Pedigo and =
Marsters=20
promised to make good and workmanlike repairs to the House in a =
timely=20
manner. Fish alleges that this promise formed a contract, =
which has=20
been breached, causing him damages.
4. =20
DTPA. Fish contends that Pedigo and Marsters violated =
sections 17.46 (5), (7), (20), (22), and (24) of the=20
DTPA.
5. =20
Statutory Fraud. Fish contends that to the extent the alleged=20
misrepresentations were made knowingly, Pedigo=3Ds and=20
Marsters=3Ds actions=20
constitute a violation of Chapter 27 of the Texas Business and =
Commerce=20
Code.
The trial=20
court severed into this case all of the above claims that Fish =
asserted=20
against Marsters and all of the above claims that Fish asserted =
against=20
Pedigo as to the original construction of the House. These =
are the=20
claims that are in the severed case in which this appeal has been=20
filed. All of Fish=3Ds claims=20
against Pedigo as to the repairs to the House after its original=20
construction remain in the original case, which the trial court =
stayed=20
pending the appeal in this case. These claims are not =
involved in=20
this case or this appeal. Therefore, to the extent Fish =
argues that=20
this court should reverse the trial court=3Ds summary=20
judgments as to his repair claims against Pedigo, these arguments =
are=20
misplaced because these claims are not before this court. =20
B. =20
Did the trial court err in granting summary judgment for the =
general=20
contractor and its owner?
Marsters=20
asserted several grounds for summary judgment on Fish=3Ds claims=20
as related to both the original construction and the =
repairs. We=20
take each claim in turn.=20
1. =20
Homeowner=3Ds=20
Negligence Claims against General Contractor
Marsters=20
asserted the following grounds as to Fish=3Ds claims=20
for negligence:
! =20
The negligence claims are barred by the applicable two-year =
statute of=20
limitations.
! =20
Fish=3Ds claims for =
negligent=20
repairs and supervision fail as a matter of law because Marsters =
owed no=20
duty and had no control over the repairs.
! =20
There is no evidence of a negligence duty, a breach, or proximate=20
cause.
On appeal,=20
Fish contends that he filed suit within the statute of limitations =
because=20
he did not discover his damages until after he purchased the =
House. =20
However, Fish fails to brief any argument as to why the trial =
court erred=20
in granting summary judgment on Marster=3Ds=20
no-evidence grounds as to the essential elements of (1) breach of =
duty,=20
(2) causation, and (3) Marsters=3Ds alleged=20
negligence duty regarding the original construction work. Without =
citing=20
any authority, Fish asserts that his injuries were proximately =
caused by=20
negligent construction. However, this is a conclusory=20
statement. In briefing the traditional summary-judgment =
grounds upon=20
which Pedigo sought summary judgment, Fish argues there are fact =
issues as=20
to whether (1) his contract to purchase the House Aas=20
is@ =
and the=20
inspection report negated proximate cause; and (2) the =
economic-loss rule=20
bars his negligence claims.=20
Texas Rule=20
of Appellate Procedure 38.1(h) requires appellate briefs to =
Acontain a=20
clear and concise argument for the contentions made, with =
appropriate=20
citations to authorities and to the record.@ =20
Tex.R.App. P. =
38.1(h);=20
Republic Underwriters Ins. Co. v. Mex‑Tex, Inc., 150 =
S.W.3d 423,=20
427 (Tex. 2004). Appellate courts must construe the Texas =
Rules of=20
Appellate Procedure reasonably, yet liberally, so that the right =
to appeal=20
is not lost by imposing requirements not absolutely necessary to =
effect=20
the purpose of a rule. Republic Underwriters Ins. =
Co., 150=20
S.W.3d at 427. Fish has not provided any argument, analysis, =
or=20
citations showing how the trial court erred in granting summary =
judgment=20
based on Marster=3Ds=20
no-evidence grounds as to the essential elements of breach of =
duty,=20
causation, or Marsters=3Ds alleged=20
negligence duty regarding the original construction work. Even =
construing=20
Fish=3Ds brief=20
liberally, we cannot conclude that he has adequately briefed these =
issues. See San Saba Energy, L.P. v. Crawford, 171 =
S.W.3d=20
323, 337 (Tex. App.CHouston=20
[14th Dist.] 2005, no pet.). Fish is required to attack =
every=20
independent ground upon which the trial court could have granted =
summary=20
judgment as to his negligence claims. See Ramco Oil & =
Gas=20
Ltd., 207 S.W.3d at 826. Because Fish has failed to do =
so, we=20
conclude the trial court did not err in granting summary judgment =
as to=20
his negligence claims against Marsters.
2.=20
Homeowner=3Ds Remaining Claims =
against=20
General Contractor
Among=20
other things, Marsters asserted there is no evidence of any of the =
following essential elements of Fish=3Ds claims=20
against Marsters:
Negligent=20
Representation. (1) Marsters made a =
representation to Fish in the course of Marsters=3Ds business, or in a =
transaction in which Marsters had a pecuniary interest; (2) =
Marsters=20
supplied false information for the guidance of others; (3) =
Marsters did=20
not use reasonable care or competence in obtaining or =
communicating the=20
information; (4) Fish justifiably relied on the representation; =
and (5)=20
Marsters=3Ds negligent =
representation=20
proximately caused Fish=3Ds damages. =
Breach of =
Contract. =20
(1) the=20
existence of a contract between Fish and Marsters, (2) breach of =
that=20
contract, (3) damages resulting from that breach.
DTPA. =
Marsters=3Ds violation of =
sections 17.46=20
(5), (7), (20), (22), and (24) of the DTPA.
Statutory=20
Fraud. (1) a=20
false representation of fact was made, (2) the representation was =
made to=20
induce Fish to enter a contract, (3) Fish relied upon that =
representation=20
in entering the contract, and (4) the false representation caused =
Fish=20
injury.
On appeal Fish has =
not=20
provided any argument, analysis, record citations, or legal =
authorities=20
addressing the trial court=3Ds summary judgment =
as to the=20
above no-evidence grounds. Even interpreting =
Fish=3Ds brief liberally, =
we cannot=20
conclude that he has adequately briefed these issues. See =
San=20
Saba Energy, L.P. v, 171 S.W.3d at 337. Fish is required =
to=20
attack every independent ground upon which the trial court could =
have=20
granted summary judgment as to these claims. =
See=20
Ramco Oil & Gas Ltd., 207 S.W.3d at 826. Because =
Fish has=20
failed to do so, we conclude the trial court did not err in =
granting=20
summary judgment as to Fish=3Ds=20
negligent-misrepresentation,=20
breach-of-contract,=20
DTPA,=20
and statutory-fraud claims against Marsters. Likewise, as to =
Fish=3Ds attempt to =
recover punitive=20
damages against Marsters by alleging gross negligence, Fish =
supplies only=20
four conclusory statements in his brief, none of which are coupled =
with=20
record citations or legal authorities. Because Fish has =
inadequately=20
briefed any alleged errors regarding his allegation of gross =
negligence,=20
these complaints are waived. =20
Having found no meritorious argument for reversal as to any of=20
Fish=3Ds claims against =
Marsters, we=20
conclude that the trial court properly granted summary judgment as =
to=20
these claims.
C. =20
Did the trial court err in granting the =
subcontractor=3Ds=20
traditional motion for summary judgment on the=20
homeowner=3Ds claims=20
regarding the original construction?
In its=20
traditional motion for summary judgment, Pedigo asserted several =
grounds=20
for summary judgment on Fish=3Ds claims=20
against Pedigo. =20
We first address the grounds asserted as to Fish=3Ds=20
negligence claim against Pedigo, and then we address the remaining =
claims.
1. =20
Does the homeowner=3Ds=20
negligence claim against the subcontractor as to the original =
construction=20
fail as a matter of law?
As to=20
Fish=3Ds=20
negligence claim, Pedigo asserted that summary judgment was proper =
because: (1) negligence during the initial construction is barred =
by the=20
two-year statute of limitations; (2) Fish is estopped from =
asserting=20
damages as a result of Pedigo=3Ds repair=20
work; (3) any injury was not proximately caused by any alleged =
breach=20
because Fish purchased the House Aas=20
is@; (4) the=20
inspection report negates proximate cause; and (5) any economic =
losses are=20
barred by application of the economic-loss rule. On =
appeal,=20
Fish contends that: (1) he filed his claim within the =
statute of=20
limitations because limitations did not begin to run until he =
bought the=20
House or because the discovery rule tolled the applicable statute =
of=20
limitations, (2) he is not estopped from asserting damages by his =
alleged=20
control of the repair efforts; (3) Fish=3Ds=20
Aas=20
is@ =
contract=20
with the original owner (Patel) does not negate proximate cause; =
(4) there=20
is a fact issue as to whether the real estate inspection report =
negates=20
proximate cause; and (5) there is a fact issue as to whether=20
Fish=3Ds=20
negligence claim is barred by the economic-loss=20
rule.
Fish=20
correctly states that his negligence claims are governed by the =
two-year=20
statute of limitations. See Tex. Civ. Prac. & Rem. =
Code=20
Ann. ' =
16.003=20
(Vernon Supp. 2005). In this case, for Pedigo to be entitled =
to=20
summary judgment based on the statute of limitations, Pedigo had =
to prove=20
when the claims accrued, negate the applicability of the discovery =
rule,=20
and prove as a matter of law that the claims are =
time-barred. =20
See Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.=20
1990).
Fish,=20
relying on the discovery rule to toll limitations, contends that a =
material fact issue exists as to whether he was afforded a =
reasonable=20
opportunity to discover the cause of his injury. He contends =
that=20
there is a fact issue as to whether he relied on the inspection =
report or=20
relied on Marsters=3Ds=20
representations as to the condition of the =
construction. Fish=20
further asserts that because his damages arise from construction =
defects=20
in the House, he could not have been damaged until after he =
purchased the=20
House. Therefore, he asserts, his negligence cause of action =
could=20
not have accrued until, at the earliest, March 23, 2000, the date =
he=20
purchased the House. This argument, however, does not =
reflect the=20
correct legal standard.
Pedigo=3Ds=20
allegedly negligent work during the construction of the House =
occurred=20
more than two years before Fish filed this suit. However, =
under the=20
discovery rule, the statute of limitations is tolled until Fish =
had=20
knowledge of facts that would have caused a reasonably prudent =
person to=20
have made an inquiry that would have led to the discovery of his =
claims=20
for negligent construction. White v. Bond, 362 S.W.2d =
295,=20
295B96 (Tex.=20
1962); Cornerstones Mun. Util. Dist. v. Monsanto Co., 889 =
S.W.2d=20
570, 576 (Tex.=20
App.CHouston [14th=20
Dist.] =
1994,=20
writ denied).
In his=20
deposition, Fish testified as follows:
! =20
Fish signed the earnest money contract for the purchase of the =
House from=20
Patel on February 7, 2000.
! =20
After signing this contract, Fish had the House inspected. =
Fish=20
reviewed the inspection report and Atook it=20
seriously.@
! =20
Fish phoned Frank Marsters about a large stain in the sheetrock in =
the=20
first-floor ceiling outside the den door and underneath the deck. =
In this=20
location Fish had seen a stain measuring two to two-and-a-half =
feet in=20
diameter. Fish called Marsters on the telephone and asked =
for=20
Marsters=3Ds opinion about =
this stain.=20
Fish did not ask Marsters to inspect this stain; rather, he simply =
asked=20
Marsters what he suspected it could be.
! =20
Marsters stated that the House backed up to the lake and moisture =
and wind=20
coming off the lake probably were causing a fungus or something =
growing up=20
there and Ait needed to be =
taken care=20
of.@ Accordingly =
to Fish,=20
Marsters did not state that the stain could not be caused by =
leakage from=20
above, and he did not say it could be.
! =20
Fish believes he told Marsters that it appeared the deck was =
leaking and=20
that there was a big spot on the ceiling.
! =20
Fish also asked Marsters about a stain in the sheetrock running up =
and=20
down the left side of a window in the den (hereinafter =
ADen =
Window@). Fish observed a =
stain=20
there that made him think the House was taking on water in that=20
area. Fish asked Marsters why the water could be getting in =
there=20
and what he could do to fix it. Marsters responded that the =
House is=20
a stucco home that needs to be maintained and that it had been =
over a year=20
since Marsters had been involved in the House. Marsters stated =
that the=20
House needed to be caulked and maintained.
! =20
Marsters did not know about the stains prior to Fish=3Ds phone call, which =
occurred=20
before Fish purchased the House.
! =20
The report of the home inspector=3Ds February 17, 2000 =
inspection mentions a leak by the Den Window. As of that date, =
Fish knew=20
that his inspection company had detected a leak at the Den Window =
and=20
documented it; however, Fish did not talk to the inspector about =
the leak=20
because he already knew the leak existed.
! =20
Fish reviewed the inspection report, and it was important for Fish =
to=20
understand what the inspector had found before Fish made the =
decision to=20
proceed with the purchase of the House. Fish never talked to =
the=20
inspector about the report.
! =20
The report states that Athere was evidence =
of=20
water/moisture penetration at rear windows (all windows, and =
exterior doors should be sealed to prevent water/moisture=20
penetration),@ a reference to the =
stain by=20
the Den Window.
! =20
The report also states that Athere was evidence =
of=20
moisture stains on ceiling at rear patio (suggest removal of upper =
balcony=20
decking for further review/inspection).@ However, =
before=20
proceeding with closing on March 23, 2000, Fish did not take any =
action=20
regarding this suggestion.
! =20
After Fish presented Patel with a list of items that needed to be =
taken=20
care of, the parties agreed to reduce the purchase price, for Fish =
to fix=20
certain items, and for Fish to take certain items Aas is.@
! =20
As of February 17, 2000, Fish knew about some issues regarding =
leaks and=20
stains at the House. Fish bought the House with this =
knowledge, and=20
Patel did not make any warranties to Fish about the House. =20
! =20
Months later, when Fish took action to deal with these issues, he=20
discovered the damage for which he now seeks to =
recover.
Fish was=20
aware of the issues regarding the leaks by February 17, =
2000. As=20
noted above, Fish discovered the Aleaks@ =
and=20
potential Awater=20
damage@ =
on or=20
before February 17, 2000. The fact that he did not purchase =
the=20
House until March 23, 2000, or begin repairs until several months =
after=20
the purchase does not toll the running of limitations. =
The=20
summary-judgment evidence proves as a matter of law that, more =
than two=20
years before he filed this suit on March 21, 2002, Fish had =
knowledge of=20
facts that would have caused a reasonably prudent person to have =
made an=20
inquiry that would have led to the discovery of his claims for =
negligent=20
construction.=20
The case=20
of Bayou Bend Towers Council of Co-Owners v. Manhattan =
Construction=20
Company, 866 S.W.2d 740 (Tex. App.CHouston=20
[14th Dist.] 1993, writ denied), is =
illustrative. In=20
Bayou Bend, the plaintiff condominium association argued =
that the=20
statute of limitations was tolled until it discovered the cause of =
the=20
leaks, not just the leaks themselves. Id. at =
743. =20
This court rejected this argument and held that the statute of =
limitations=20
began to run when the association discovered the existence of =
water=20
leakage and cracks in precast panels, even though it did not know =
the=20
cause of the cracking problem. Id. at 744.=20
Under the applicable standard of review, the =
summary-judgment=20
evidence conclusively proves Pedigo=3Ds=20
limitations defense and negates the discovery rule as a matter of=20
law. See Cornerstones Mun. Util. Dist., 889 =
S.W.2d at=20
576 (holding that discovery rule tolled limitations only until =
plaintiff=20
learned of damaged pipe, rather than until plaintiff discovered =
widespread=20
problems with the sewer system, because knowledge of the damaged =
pipe=20
would cause a reasonably prudent person to make an inquiry that =
would lead=20
to the discovery of the system-wide problems); Bayou Bend =
Towers=20
Council, 866 S.W.2d. at 743B45=20
(concluding that, even under discovery rule, limitations began to =
run upon=20
discovery of water leaks in roof because this discovery would =
cause a=20
reasonably prudent person to make an inquiry that would lead to =
the=20
discovery of the cause of the leaks); Tenowich v. =
Sterling=20
Plumbing Co., 712 S.W.2d 188, 190 (Tex. App.CHouston=20
[14th Dist.] 1986, no writ) (concluding that statute of =
limitations began=20
running upon discovery of multiple plumbing leaks, even though the =
full=20
extent of the damage was not discovered until later); Polk =
Terrace,=20
Inc. v. Curtis, 422 S.W.2d 603, 605 (Tex. Civ. =
App.CDallas=20
1967, writ ref'd n.r.e.) (concluding a reasonably prudent person =
would=20
make inquiry after masonry cracks appeared in house within first =
year of=20
home ownership). We conclude that the trial court =
properly=20
granted summary judgment as to Fish=3Ds=20
negligence claims against Pedigo based on the statute of =
limitations. =20
2. =20
Did the trial court correctly grant summary judgment as to the=20
homeowner=3Ds other=20
claims=20
against the subcontractor regarding the original=20
construction?
On appeal,=20
the only alleged negligent misrepresentations Fish has briefed =
relate=20
to repairs to the House performed after the original=20
construction. The only contract Fish has briefed is an =
alleged=20
contract under which Pedigo purportedly agreed to repair the leaks =
and the=20
stucco at the House. In addition, the only alleged DTPA =
violations=20
Fish has briefed are based on alleged statements by Pedigo that it =
would=20
repair all window leaks, flashing leaks, and stucco and roofing =
leaks in=20
the back of the House and that Pedigo would perform this repair =
work in a=20
good and workmanlike manner. Furthermore, the only alleged =
statutory=20
fraud Fish has briefed on appeal is based on alleged =
misrepresentations by=20
Pedigo regarding its repair of the leaks. However, =
Fish=3Ds claims=20
against Pedigo based on the repairs to the House are not part of =
this=20
case; therefore, none of the arguments asserted by Fish present =
reasons=20
for reversing the trial court=3Ds summary=20
judgment as to Fish=3Ds=20
negligent-misrepresentation, breach-of-contract, DTPA, and =
statutory-fraud=20
claims regarding the original construction of the House. =20
Pedigo=3Ds=20
arguments lack merit as to these claims. =20
Having found no meritorious argument as to any of Fish=3Ds claims=20
against Pedigo, we conclude that the trial court properly granted =
summary=20
judgment as to these claims.
V. =20
Conclusion =
Fish has=20
not presented any argument showing that the trial court erred in =
granting=20
summary judgment as to any of his claims against Marsters or as to =
any of=20
his claims against Pedigo regarding the original construction of =
the=20
House.
Accordingly,=20
we overrule all of Fish=3Ds issues=20
and affirm the trial court=3Ds=20
judgment.
/s/ =20
Kem Thompson Frost
Justice
Judgment=20
rendered and Memorandum Opinion filed May 17, 2007.
Panel=20
consists of Justices Fowler, Edelman, and Frost.
Although Fish testified on =
numerous=20
occasions throughout his deposition that this call took place =
before he=20
signed the earnest money contract and before an actual inspection =
of the=20
House, Marsters does not recall making these statements to =
Fish. =20
There is also a dispute as to whether Fish made this phone call =
before or=20
after he obtained a formal inspection report for the House. =
However,=20
resolution of this conflict is unnecessary to the disposition of =
this=20
appeal.
We discuss in detail in our =
analysis below=20
the individual claims asserted by Fish against Pedigo and =
Marsters.=20
When discussing the claims as =
related to=20
Marsters, we are referring to any claims made as to both the =
original=20
construction and as to the repair work made after the original=20
construction.
Fish also asserts that =
Pedigo=3Ds allegedly negligent repairs caused his =
injuries;=20
however, Fish=3Ds negligent-repair claims against Pedigo =
are not=20
before this court.
Fish does assert that he =
justifiably relied=20
on Pedigo=3Ds alleged negligent representation that =
it would=20
fix the leaks; however, this claim is not against Marsters, and, =
in any=20
event is not before this court.
Fish does make a conclusory =
statement that=20
he had a contract with Marsters and Pedigo to repair the leaks and =
the=20
stucco, and he does provide argument in support of the proposition =
that a=20
contract existed between Fish and Pedigo regarding repair of the =
stucco=20
and the leaks; however, this argument is directed at Pedigo, not=20
Marsters. Although Fish bases this argument on a proposal =
made by=20
Pedigo and although Fish states in passing that this is =
APedigo=3Ds and Marsters=3D remediation proposal,@ Fish does not explain how a document =
prepared by=20
Pedigo on its letterhead constitutes a contract with =
Marsters. In=20
any event, the only contract alleged in Fish=3Ds petition is an alleged agreement to =
make good=20
and workmanlike repairs to the House in a timely manner. =
Fish did=20
not brief on appeal or point out to the trial court =
summary-judgment=20
evidence raising a genuine fact issue as to the essential elements =
of such=20
a claim against Marsters.
In two pages of his appellate =
brief, Fish=20
does assert there is a fact issue as to his DTPA claims based on=20
Marsters=3Ds alleged misrepresentation that =
Marsters would=20
perform the repair work in a good and workmanlike manner; however, =
the=20
only evidence of such alleged statements Fish cites are statements =
made by=20
Allen Pedigo of Pedigo. Even in this argument, Fish does not =
brief=20
how there was a fact issue as to the five alleged violations of =
the=20
DTPA. In any event, the summary-judgment evidence did not =
raise a=20
genuine fact issue as to whether Marsters violated these DTPA=20
provisions.
Even absent briefing waiver, =
Marsters=20
correctly asserted in its motion for summary judgment that =
Fish=20
cannot recover punitive damages against Marsters based on gross =
negligence=20
if Fish=3Ds negligence claim fails as a matter of=20
law.
When we refer to the claims =
asserted=20
against Pedigo, we refer only to those claims that relate to the =
original=20
construction. As stated above, this case does not include =
all claims=20
regarding repairs made after the initial construction, and any =
claims=20
asserted against Pedigo as related to the repair work are not =
before us in=20
this appeal.
At oral argument, =
Fish=3Ds counsel asserted that fraudulent =
concealment=20
precluded the application of limitations based on =
Marsters=3Ds statements to Fish in February =
2000. Fish,=20
however, waived this issue by not raising fraudulent concealment =
in his=20
response to Pedigo=3Ds motion for summary judgment. =
See KPMG=20
Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d =
746,=20
749B50 (Tex. 1999) (holding that nonmovant =
waives=20
fraudulent-concealment issue by not raising it in his =
summary-judgment=20
response). In any event, statements by Marsters could not =
possibly=20
constitute fraudulent concealment by Pedigo.
Fish also argues that =
Pedigo=3Ds negligent repairs were a cause in fact =
of=20
Fish=3Ds alleged injuries; however, =
Fish=3Ds negligent-repair claims against Pedigo =
are not=20
before this court.
As to =
Fish=3Ds attempt to =
recover punitive=20
damages against Pedigo by alleging gross negligence, Fish supplies =
only=20
four conclusory statements in his brief, none of which are =
accompanied by=20
record citations or legal authorities. Because Fish has =
inadequately=20
briefed any alleged errors regarding his allegation of gross =
negligence,=20
these complaints are waived. See Tex. R. App. =
P.=20
38.1(h). As noted, =
even absent=20
briefing waiver, Pedigo correctly asserted in its motion for =
summary=20
judgment that Fish cannot recover punitive damages based on gross=20
negligence if Fish=3Ds negligence claim fails as a matter of=20
law.
Fish=3Ds negligence, =
negligent-misrepresentation,=20
breach-of-contract, DTPA, and statutory-fraud claims regarding the =
repairs=20
to the House are still pending in a separate case in the trial =
court and=20
are not adjudicated by this=20
appeal. |