Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
NO. D-1-GN-16-000642, HONORABLE JAN SOIFER, JUDGE PRESIDING
Justices Puryear, Field, and Bourland.
withdraw our opinion and judgment dated March 22, 2018 and
substitute the following opinion and judgment in their place,
and we overrule Newton W. Buerger's motion for rehearing.
James and Maureen Maroney, subsequent purchasers of a home
built by Chip Buerger Custom Homes, Inc. (Buerger Homes),
appeal the trial court's summary judgment in favor of the
builder and its president and sole shareholder, Newton W.
Buerger (collectively, appellees), dismissing their claims
alleging defective and negligent construction of the home and
breach of implied and express warranties. We reverse the
portion of the trial court's summary judgment dismissing
the Maroneys' implied-warranty claim against Buerger
Homes with respect to the claimed damages to the two-story
lakeside porch and remand that cause for further proceedings.
We also reverse the portion of the judgment awarding
appellees attorney's fees and render judgment that
neither appellee is entitled to attorney's fees. We
affirm the remainder of the trial court's judgment.
record shows that the Maroneys purchased the home at issue in
January 2011 from a third-party relocation company, which had
purchased the home from its original owners, for whom Buerger
Homes built the home pursuant to a "Residential
Construction Contract" (the Contract). Buerger Homes
completed construction of the home in June 2009. Prior to the
Maroneys' purchase, they received from the seller's
realtor a copy of an engineering report on the property (the
2011 report) prepared for the seller by an independent
engineering company. The Maroneys did not move fully into the
home until mid-2012 but outfitted it with basic furniture and
stayed overnight there at least once a month after purchasing
it in early 2011.
February 2016, the Maroneys filed this lawsuit against
appellees to recover the costs of various repairs they made
to the home that were allegedly necessitated by defective
construction. Their pleadings alleged that in March 2015 they
discovered water damage and waterproofing issues with the
home, causing structural damage and necessitating repairs.
They asserted claims in negligence and breach of express and
implied warranties as well as pleading that their claims were
not barred by the respective two- and four-year statutes of
limitations due to the discovery rule. See Tex. Civ.
Prac. & Rem. Code § 16.003(a) (stating limitations
periods); Woods v. William M. Mercer, Inc., 769
S.W.2d 515, 518 (Tex. 1988) ("A party seeking to avail
itself of the discovery rule must therefore plead the rule,
either in its original petition or in an amended or
supplemental petition in response to defendant's
assertion of the defense as a matter in avoidance.").
Through the course of discovery, the Maroneys identified four
defects for which they sought damages: (1) inadequate
waterproofing and resulting structural damage of the
home's two-story "lakeside porch"; (2)
defective installation of two columns outside the living-room
window, resulting in wood rot of the columns; (3) improper
sealing of the home's "envelope, " causing or
contributing to water damage and bug infestation; and (4)
improper grading and drainage around the home's exterior,
causing water penetration into the home.
their answer, appellees raised several affirmative defenses,
including statutes of limitations and the Maroneys' lack
of capacity to sue due to non-privity, and filed a
counterclaim for attorney's fees under a prevailing-party
clause in the Contract. After sufficient time for discovery
had elapsed, appellees filed a motion for partial summary
judgment on all of the Maroneys' claims, raising the
following grounds in support: limitations, lack of the
Maroneys' capacity to sue, the "economic loss rule,
" and lack of a material fact issue with respect to the
Maroneys' landscaping and grading claims. Appellees
supported their motion with, among other evidence, excerpts
from the deposition of James Maroney and the 2011 report.
trial court granted the motion, leaving only appellees'
counterclaim for attorney's fees pending. Both parties
then filed partial summary-judgment motions with respect to
appellees' counterclaim. The trial court granted
appellees' motion and denied appellants' and later
conducted an evidentiary hearing on the amount of
attorney's fees to be awarded. After that hearing, the
trial court rendered a final judgment incorporating the two
interlocutory partial-summary judgments and awarding
appellees $54, 000 in attorney's fees plus further
contingent amounts in the event of unsuccessful appeals by
Maroneys contend on appeal that the trial court erred in (1)
granting summary judgment dismissing all of their claims
because the evidence they presented raised genuine issues of
material fact on appellees' limitations affirmative
defense and because appellees were not entitled to summary
judgment as a matter of law on their negligence and warranty
claims, and (2) awarding appellees attorney's fees
because the Maroneys were not signatories to the Contract. We
review a trial court's grant of summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656,
661 (Tex. 2005). When, as here, a trial court grants summary
judgment but does not specify the grounds for granting the
motion, we must uphold the judgment if any of the grounds
asserted in the motion and preserved for appellate review are
meritorious. Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 216 (Tex. 2003). In reviewing a
trial court's ruling on summary judgment, we take as true
all evidence favorable to the nonmovant, and we indulge every
reasonable inference and resolve all doubts in the
nonmovant's favor. Id. Generally, we review the
decision by a trial court to either grant or deny
attorney's fees for abuse of discretion. See EMC
Mortg. Corp. v. Davis, 167 S.W.3d 406, 418 (Tex.
App.-Austin 2005, pet. denied).
and discovery rule
defendant moving for summary judgment on the affirmative
defense of limitations has the burden to conclusively
establish that defense. KPMG Peat Marwick v. Harrison
Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748
(Tex. 1999). Thus, the defendant must (1) conclusively prove
when the cause of action accrued, and (2) negate the
discovery rule, if it applies and has been pleaded or
otherwise raised, 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. Id. 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
discovery rule is a limited exception to the statute of
limitations. Computer Assocs. Int'l, Inc. v. Altai,
Inc., 918 S.W.2d 453, 455 (Tex. 1996). The rule is
applied when the nature of the injury is inherently
undiscoverable, that is, when it is "difficult for the
injured party to learn of the negligent act or
omission." Id. at 456 (quoting Willis v.
Maverick, 760 S.W.2d 642, 645 (Tex. 1988)).
"Inherently undiscoverable encompasses the requirement
that the existence of the injury is not ordinarily
discoverable, even though due diligence has been used."
Id. Whether an injury is inherently undiscoverable
is a legal question "decided on a categorical rather
than case-specific basis; the focus is on whether a
type of injury rather than a particular
injury was discoverable." Via Net v. TIG Ins.
Co., 211 S.W.3d 310, 314 (Tex. 2006). The discovery rule
operates to defer the accrual of a cause of action until the
date the plaintiff knew or, exercising reasonable diligence,
should have known of the facts giving rise to the cause of
action. Computer Assocs., 918 S.W.2d at 455; see
J.M. Krupar Constr. Co. v. Rosenberg, 95 S.W.3d 322, 329
(Tex. App.-Houston [1st Dist.] 2002, no pet.). A plaintiff
need not know the full extent of the injury before
limitations begin to run. See Town of Dish v. Atmos
Energy Corp., 519 S.W.3d 605, 613 (Tex. 2017) (holding
that evidence showed plaintiffs were concerned about air
contamination and were at least put on "inquiry
notice" of claims well before date of report on which
they relied as accrual date); Gonzales v. Southwest
Olshan Found. Repair Co., 400 S.W.3d 52, 58 (Tex. 2013)
(recognizing that "once a claimant learns of a wrongful
injury, the statute of limitations begins to run even if the
claimant does not yet know the specific cause of the injury;
the party responsible for it; the full extent of it; or the
chances of avoiding it"); see also Murphy v.
Campbell, 964 S.W.2d 265, 273 (Tex. 1997).
in construction-defect cases, limitations begin to run when
an owner becomes aware of property damage. J.M. Krupar
Constr., 95 S.W.3d at 329. However, the question of when
a plaintiff knew or should have known of an injury generally
is a question of fact. Houston Livestock Show &
Rodeo, Inc. v. Hamrick, 125 S.W.3d 555, 570 (Tex.
App.-Austin 2003, no pet.). "Discovery" occurs when
a plaintiff has knowledge of such facts, conditions, or
circumstances as would cause a reasonably prudent person to
make an inquiry that would lead to discovery of the cause of
action or injury. Trousdale v. Henry, 261 S.W.3d
221, 234 (Tex. App.-Houston [14th Dist.] 2008, pet. denied).
The discovery rule requires reasonable diligence by the
plaintiff to make inquiry about his or her legal rights upon
discovery of such facts, conditions, or circumstances.
See Bell v. Showa Denko K.K., 899 S.W.2d 749, 754
(Tex. App.-Amarillo 1995, writ denied).
parties agree that the Maroneys' negligence and warranty
claims are governed by two- and four-year limitations
periods, respectively. See Tex. Civ. Prac. &
Rem. Code § 16.003(a) (stating limitations periods).
Because the Maroneys filed this suit on February 11, 2016,
any negligence and warranty claims that accrued prior to
February 11, 2014 and 2012, respectively, are time-barred.
Appellees asserted in their summary-judgment motion that the
Maroneys discovered, or should have discovered, their claimed
property damage in January 2011 when they bought the home and
reviewed the 2011 report. See J.M. Krupar Constr.,
95 S.W.3d at 329-330; Bayou Bend Towers Council of
Co-Owners v. Manhattan Constr. Co., 866 S.W.2d 740,
742-43 (Tex. App.-Houston [14th Dist.] 1993, writ denied)
(noting that discovery rule tolls accrual until plaintiff
discovers, or should have discovered through exercise of
reasonable diligence and care, nature of injury).
separately consider each of the Maroneys' claimed home
defects and whether appellees were entitled to summary
judgment by proving that there is no genuine issue of
material fact about when the Maroneys discovered, or in the
exercise of reasonable ...