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Bunch v. The Woodlands Land Development Co., LP

Court of Appeals of Texas, Ninth District, Beaumont

July 20, 2017

RICHARD F. BUNCH III AND MICHELLE BUNCH, ET AL, Appellants
v.
THE WOODLANDS LAND DEVELOPMENT COMPANY, LP, Appellee

          Submitted on April 13, 2017

         On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 12-02-01950-CV

          Before McKeithen, C.J., Horton and Johnson, JJ.

          MEMORANDUM OPINION

          STEVE McKEITHEN Chief Justice.

         This is an appeal from the trial court's orders granting two summary judgments and denying a motion for new trial. In three issues, appellants Richard F. Bunch III and Michelle Bunch ("the Bunches")[1] contend that the trial court erred by granting summary judgments in favor of appellee The Woodlands Land Development Company, LP ("TWLDC") on the issues of the application of the statute of repose and the merits of the Bunches' claims, as well as by denying their motion for new trial. We affirm the trial court's judgment.

         BACKGROUND

         On February 22, 2012, the Bunches filed suit against TWLDC for alleged DTPA violations, breach of warranty, and negligence.[2] The Bunches subsequently added claims for fraud and negligent misrepresentation. The Bunches asserted that TWLDC and its affiliates designed and developed The Woodlands, a planned community.[3] According to the Bunches, among the areas designed and developed by TWLDC was Carlton Woods, the subdivision in which the Bunches purchased a home. The Bunches pleaded that they began experiencing structural problems, which their homebuilder determined were caused by the presence of a fault line. The Bunches asserted that the faults, over time, caused the earth beneath the home to move. The Bunches also alleged that TWLDC knew or should have known about the existence and location of the Big Barn Fault and other similar faults in The Woodlands. According to the Bunches, TWLDC retained engineering and geologic companies to perform studies in the area, and the studies identified known faults and also concluded that a potential for active surface faulting existed in the area.

         The Bunches alleged that TWLDC violated the DTPA by causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of the goods or services; representing that the property had characteristics and uses that it did not have; representing that goods or services were of a particular style or model when they were of another; failing to disclose information which was known about the transaction to induce the Bunches to purchase the property; and by breaching express and implied warranties that the property "was suitable as a residential lot, had been developed as part of a master-planned community, to the highest standards and was developed in a good and workmanlike manner, and the implied warranty of merchantability[.]"

         In addition, the Bunches contended that TWLDC breached its implied warranty to develop the property in a good and workmanlike manner because "[d]espite having in its possession geologic reports indicating the existence of faults underneath the planned community and [the] risks of surface faulting, TWLDC nevertheless developed and sold the [p]roperty for use as a residential lot with a fault running under it." Furthermore, the Bunches asserted that TWLDC owed them a duty to exercise reasonable care to insure that the subdivided lots it developed and/or sold "were suitable for construction of a dwelling house of the type it intended be built in the Carlton Woods community." According to the Bunches, TWLDC breached its duty by developing the property "over a fault line the existence of which TWLDC knew or should have known[, ]" and the Bunches suffered actual damages as a result of TWLDC's alleged negligence.

         TWLDC's MOTION FOR SUMMARY JUDGMENT

         TWLDC filed a traditional motion for summary judgment, in which it alleged that the Bunches' claims were barred by the statutes of repose. See Tex. Civ. Prac. & Rem. Code Ann. §§ 16.008, 16.009 (West 2002). Section 16.008 of the Texas Civil Practice and Remedies Code provides as follows:

(a) A person must bring suit for damages for a claim listed in Subsection (b) against a registered or licensed architect, engineer, interior designer, or landscape architect in this state, who designs, plans, or inspects the construction of an improvement to real property or equipment attached to real property, not later than 10 years after the substantial completion of the improvement . . . in an action arising out of a defective or unsafe condition of the real property. . . .
(b) This section applies to suit for:
(1) injury, damage, or loss to real or personal property[.] . . . .
(c) If the claimant presents a written claim for damages, contribution, or indemnity to the architect, engineer, interior designer, or landscape architect within the 10-year limitations period, the period is extended for two years from the day the claim is presented.

Id. § 16.008(a)-(c). Section 16.009 of the Texas Civil Practice and Remedies Code provides as follows, in pertinent part:

(a) A claimant must bring suit for damages for a claim listed in Subsection (b) against a person who constructs or repairs an improvement to real property not later than 10 years after the substantial completion of the improvement in an action arising out of a defective or unsafe condition of the real property or a deficiency in the construction or repair of the improvement.
(b) This section applies to suit for:
(1) injury, damage, or loss to real or personal property[.] . . .
(c) If the claimant presents a written claim for damages, contribution, or indemnity to the person performing or furnishing the construction or repair work during the 10-year limitations period, the period is extended ...

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