
 








NUMBER 13-01-729-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 

CURTIS BURT,                                                                	Appellant,

v.


CHARLENE WILLIAMS AND CECIL ALEC,	Appellees.
 

On appeal from the 258th District Court   

of Polk County, Texas.

 

O P I N I O N


Before Chief Justice Valdez and Justices Castillo and Amidei (1)

Opinion by Justice Amidei


	Appellant, Curtis Burt, the defendant below, appeals from an adverse judgment 
after a non-jury trial in a Texas Deceptive Trade Practices Act (DTPA) (2) action claiming
in two issues there was no evidence to support the trial court's findings that the
appellees' claim was not barred by the statute of limitations. (3)
	Appellees, Charlene Williams and Cecil Alec, contracted with appellant to repair
the roof to their home.  Leaks appeared in the roof, thereby damaging appellees, after
the original date of completion.  Appellant returned to repair the roof on four or five
occasions but his efforts were never successful, and appellees claimed appellant's
promises to return and work on the roof were solely calculated to induce appellees to
refrain from or postpone filing suit.
Standard of Review
	Accrual of a cause of action is deferred in two types of cases.  S.V. v. R.V.,
933 S.W.2d 1, 6 (Tex. 1996).  In one type, those involving allegations of fraud or
fraudulent concealment, accrual is deferred because a person cannot be permitted to
avoid liability for his actions by deceitfully concealing wrongdoing until limitations has
run.  Id.  The other type, in which the discovery rule applies, comprises those cases
in which "the nature of the injury incurred is inherently undiscoverable and the
evidence of injury is objectively verifiable." Id.  Inherently undiscoverable is where a
homeowner could not discover the faulty construction of roof.  Id.
	All actions brought under the DTPA "must be commenced within two years
after the date on which the false, misleading, or deceptive act or practice occurred or
within two years after the consumer discovered or in the exercise of reasonable
diligence should have discovered the occurrence of the false, misleading, or deceptive
act or practice."  Tex. Bus. & Com. Code Ann. § 17.565 (Vernon 2002). This period
of limitation may be extended for a period of 180 days if the plaintiff proves that
"failure timely to commence the action was caused by the defendant's knowingly
engaging in conduct solely calculated to induce the plaintiff to refrain from or postpone
the commencement of the action."  See id. 
	A no evidence challenge requires us to review only the evidence and reasonable
inferences from the evidence that tend to support the finding, disregarding all evidence
and inferences to the contrary.  Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d
488, 493 (Tex. App.-Houston [1st Dist.] 1992, writ denied).
Issues
	Appellant's issues one and two in effect claim there was no evidence to support
the trial court's finding of fact and conclusion of law that appellees' claim is not barred
by the statute of limitations.
	Appellant argues the uncontroverted evidence proves as a matter of law the
statute of limitations bars appellees' claims and the discovery rule does not apply. 
Appellant claims the statute began to run after he completed the work in March 1997,
but does not state the date appellees discovered or should have discovered the nature
and extent of the roof defects, or other evidence necessary to prove such facts as a
matter of law.  The trial court as the trier of fact resolved such fact issue in favor of
the application of the discovery rule to prevent the statute of limitations from barring
appellees' claim.  Dallas Mkt. Cent. v. Beran & Shelmire, 865 S.W.2d 145, 147 (Tex.
App.-Corpus Christi 1993, writ denied). (4)  We cannot discern from the evidence
whether the evidence was sufficient as a matter of law to hold that appellees
discovered the nature and extent of the roof defects prior to September 1998, when
appellees hired Mr. Van Conger, [a roofing expert,] and discovered appellant's
misrepresentations regarding the roof.  Id.  Any doubt must be resolved in favor of
appellees.  Id.
	We must disregard appellant's claim the statute began running after March
1997, because it is contrary to the evidence and reasonable inferences from the
evidence that tend to support the trial court findings.  Id.; Southwestern Bell Media,
Inc., 825 S.W.2d at 493.  The roof repairs contracted to be performed by appellant
for appellees began in February 1997, and ended in March 1997.  Appellee Alec
testified the roof never leaked until appellant started working on it, and it has been
leaking ever since.  Alec was not familiar with construction and had never done any
roofing work.  Several leaks appeared which the trial court inferred was caused by
appellant constructing the roof too flat for proper run-off, and by appellant's 
placement of the shingles and flashing.  The trial court disregarded, as we do, the
appellant's theory that the skylight insisted upon by the appellees was the cause of
the leaks.  The roof leaks caused damage to the sheetrock and carpet inside the
appellees' home which also caused them a great deal of embarrassment and mental
anguish. Each time appellees asked appellant to come back to repair the leaks,
appellant agreed to do so.  Between January 1998 and September 1998, appellees
asked appellant about five times to fix the leaks, and each time appellant told appellees
he would be back to fix the roof.  Appellant came back to attempt to fix the leaks
several times.  Appellant represented that he could fix the roof by installing several
boards in order to create enough slope to drain the roof, but in fact did not.  In
September 1998, appellees gave up on appellant and called in Van Conger.  The trial
court could have concluded the statute began running in September 1998, and the
filing of the suit on May 12, 2000 was within the two year limitation period.  Tex.
Bus. & Com. Code Ann. § 17.565 (Vernon 2002).  There was sufficient evidence to
support the trial court's finding of fact "I" and conclusion of law "C"
	Appellant's issues numbers one and two are overruled.
	The judgment of the trial court is affirmed.
 MAURICE AMIDEI
								Justice

Opinion delivered and filed
this 4th day of September, 2003.









1.  Former Justice Maurice Amidei, assigned to this Court by the Chief Justice of the
Supreme Court of Texas pursuant to Tex. Gov't Code Ann. § 74.003 (Vernon 1998).
2.  Tex. Bus. & Com. Code Ann. §§ 17.01-17.854 (Vernon 2002).
3.  Tex. Bus. & Com. Code Ann. § 17.565 (Vernon 2002).
4.  The trial court found in finding of fact "I" that defendant knowingly engaged in
conduct solely calculated to induce plaintiff to refrain from or postpone the commencement
of this action; and concluded in conclusion of law "C" plaintiffs' right to collection of such
indebtedness is not barred by Section 17.565 of the Texas Deceptive Trade Practices Act on
limitations.  See Tex. Bus. & Com. Code Ann. § 17.565 (Vernon 2002).
