                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ________________
                               NO. 09-16-00136-CV
                              ________________

  RICHARD F. BUNCH III AND MICHELLE BUNCH, ET AL, Appellants

                                         V.

  THE WOODLANDS LAND DEVELOPMENT COMPANY, LP, Appellee
__________________________________________________________________

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

                          MEMORANDUM OPINION

      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


      1
      Although the notice of appeal listed other appellants, it appears that the only
remaining appellants are Richard F. Bunch III and Michelle Bunch.
                                              1
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




      2
          The Bunches also sued other defendants who are not parties to this appeal.
      3
        The Bunches’ first amended petition was apparently their live petition when
the trial court signed summary judgment orders.
                                              2
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

                                              3
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.

                                               4
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
       for two years from the date the claim is presented.

Id. § 16.009(a)-(c).

         In its motion, TWLDC argued that its licensed professional architects and

engineers planned and designed the property and constructed improvements in the

Bunches’ neighborhood. According to TWLDC, its “decisions and activities

occurred well beyond 10 years ago, with some dating as far back as 33 years ago.”

TWLDC asserted that it “began planning, designing, and developing The Woodlands

more than forty years ago, taking undeveloped timberland and planning, designing,

and developing a diverse range of improvements to that property, including

designing numerous residential subdivisions.” TWLDC contended that it planned
                                              5
and designed improvements to the Bunches’ real property and then constructed

them, and that the work was completed more than ten years before the Bunches filed

their lawsuit.

      TWLDC attached numerous exhibits to its motion for summary judgment.

Timothy J. Welbes, Co-President of TWLDC, signed an affidavit which stated that

in 1974, TWLDC began designing, planning, and developing The Woodlands to be

a master-planned community. Welbes averred that TWLDC designed, planned, and

developed numerous residential neighborhoods, including Carlton Woods. Welbes

explained that “[a]fter TWLDC completed development of each neighborhood,

which included constructing improvements such as streets, utilities, and drainage

features, TWLDC sold the improved lots within the neighborhood to builders.”

      Alex Sutton, Co-President of TWLDC, signed an affidavit stating that, as an

in-house licensed engineer for TWLDC, he worked alongside other in-house

licensed engineers in TWLDC’s engineering department. According to Sutton,

TWLDC’s engineering department assisted the planning department “by providing

information regarding development constraints” to TWLDC’s licensed in-house

architects, and over a period of decades, TWLDC’s engineering department sought

proposals and commissioned fault studies for the subdivisions. Sutton averred that

once a subdivision had been designed and planned, TWLDC constructed various

                                           6
improvements, “such as streets, water, sanitary sewer and drainage facilities,

residential lots and commercial areas, mailbox pads, and underground utilities,

including electricity, cable, gas, and telephone.” According to Sutton, TWLDC

served as its own general contractor and retained subcontractors, including

engineers, architects, geotechnical labs, inspectors, clearing contractors, paving

contractors, and utility contractors. Sutton averred that TWLDC’s subcontractors

completed the construction of water, sanitary sewer, and drainage facilities in the

Bunches’ subdivision on December 20, 2000, and the construction of streets in the

subdivision was completed by December 22, 2000. According to Sutton, “TWLDC’s

construction of improvements to [Carlton Woods] Section 5 was substantially

complete by December 22, 2000.”

      TWLDC also attached to its motion the affidavit of Robert Heineman,

TWLDC’s Vice President of Planning and a licensed architect. Heineman stated in

the affidavit that he met with other licensed architects in TWLDC’s planning

department who were responsible for designing at the neighborhood level.

Heineman averred that “[u]nlike most developers, TWLDC has employed many

licensed architects and other professionals to directly undertake, in-house, the land

planning function, through its planning department.” According to Heineman’s

affidavit, TWLDC’s planning and designing of residential neighborhoods included

                                             7
planning and designing of “numerous improvements, including streets, parks, green

spaces, and residential lots, and then preparing the preliminary plats establishing the

location and layout of these improvements based on development constraints and

environmental factors as well [as] applicable governmental platting requirements.”

Heineman averred that TWLDC’s planning department relied on TWLDC’s

engineering department to identify development constraints, including potential

geologic faults.

      In addition, TWLDC attached to its motion for summary judgment the

affidavit of Jim Wendt, who was previously employed as a senior planner and

licensed architect in TWLDC’s planning department. Wendt averred that, using his

professional architectural judgment and the information TWLDC’s engineering

department provided, he personally decided where lots and improvements would be

located in the Bunches’ subdivision.

      The Bunches filed a response to TWLDC’s motion for summary judgment in

which they argued that the statutes of repose were not intended to apply to

developers who do not design or plan improvements to real property or construct or

repair improvements on real property. According to the Bunches, because TWLDC

did not attach or affix personalty to the property, TWLDC did not construct

improvements on the property. The Bunches argued that TWLDC failed to establish

                                              8
that it is in the class of engineers, architects, or contractors who are protected by the

repose statutes. The Bunches contended that they have raised “a scintilla of

evidence” that TWLDC should not be protected under the repose statutes because of

its alleged knowing, purposeful, and willful concealment of “critical fault[-]related

information.” In addition, the Bunches argued that the statutes of repose do not apply

to TWLDC because any improvements made by TWLDC were not linked to the

cause of the Bunches’ damages. The Bunches further argued that the affirmative

defense of fraudulent concealment applies. Lastly, the Bunches maintained that fact

issues exist with respect to the date of substantial completion. In their response, the

Bunches objected to Sutton’s affidavit because he is an interested witness, and the

Bunches asserted that Sutton’s affidavit, particularly when considered together with

his deposition testimony, was not clear, positive, and uncontroverted.

      The Bunches attached numerous exhibits to their response. The Bunches’ first

exhibit was TWLDC’s manual for residents, which the Bunches argued

demonstrates that TWLDC was merely a developer and did not act as an architect or

engineer and did not construct personalty that became affixed to the land. The

Bunches pointed out that the manual stated that each home builder is solely

responsible for the construction process. In addition, the Bunches pointed out that,

in a mandamus proceeding filed with this Court, TWLDC “admitted that when it

                                               9
sells lots to builders, it sells them as ‘unimproved.’” According to the Bunches,

“Sutton did not manage construction of anything on the lots themselves, only the

paving of the streets and the placement of the utilities, including power,

telephone/cable[,] and gas.” In addition, the Bunches attached a copy of TWLDC’s

petition for writ of mandamus.

      The Bunches also provided a copy of a document entitled “Covenants,

Restrictions[,] Easements, Charges[,] and Liens [o]f The Woodlands,” which defines

“improvements” as follows:

      any physical change to a structure which alters the physical appearance
      of the structure, including by way of example, but not limited to, adding
      or removing square footage area space to or from a structure, painting
      or repainting a structure, or in any way altering the size, shape[,] or
      physical appearance of any structure.

In addition, the Bunches provided a copy of a 1984 memorandum regarding “Village

III Zone I Economic Model Update[,]” which the Bunches assert “contains

numerous references to profits and expenses related to things other than personalty

affixed to real property, including water, sewer and drainage facilities, sales of

residential lots . . ., as well as sales of commercial retail, church[,] and school lots.”

According to the Bunches, the memorandum is “notably silent as to personalty that

TWLDC engineered, designed, planned[,] or constructed that was affixed to a lot,

thereby becoming an improvement.” The Bunches also attached excerpts of

                                               10
deposition testimony from several individuals associated with TWLDC, including

Sutton.4

      In addition, the Bunches attached memoranda regarding faults and fault

studies authored by Robert Sekola, who the Bunches state in their response to the

motion for summary judgment was an engineer and former employee of TWLDC.

The Bunches also attached excerpts from the deposition testimony of Bill R. Elsbury,

who testified that he believed two faults were active in The Woodlands area before

2008. TWLDC filed a reply to the Bunches’ response to its motion for summary

judgment.

       After conducting a hearing on TWLDC’s motion for summary judgment, the

trial court signed an “Order and Final Judgment” on January 21, 2016, in which it

granted TWLDC’s motion for summary judgment on repose and stated: “As a result

of the ruling on the statute of repose, all claims by plaintiffs are dismissed with

prejudice[.]” The trial court also included language of finality. In three appellate

issues, the Bunches argue that the trial court erred by: (1) granting summary

judgment in favor of TWLDC on repose, (2) granting a motion for summary




      The record reflects that Sutton’s affidavit was signed on December 18, 2015.
      4

The deposition excerpts provided by the Bunches indicate that Sutton was deposed
in August of 2015.
                                            11
judgment on the merits of the Bunches’ claims, and (3) denying their motion for new

trial.

                                      ISSUE ONE

         In their first issue, the Bunches argue that the trial court erred by granting

summary judgment in favor of TWLDC on the issue of the application of the statutes

of repose. We review the trial court’s summary judgment de novo. See Provident

Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). A party moving

for traditional summary judgment must establish that there is no genuine issue of

material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ.

P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995).

If the moving party produces evidence entitling it to summary judgment, the burden

shifts to the nonmovant to present evidence that raises a material fact issue. Walker

v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In determining whether there is a

disputed material fact issue precluding summary judgment, evidence favorable to

the nonmovant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546,

548-49 (Tex. 1985). We review the summary judgment record “in the light most

favorable to the nonmovant, indulging every reasonable inference and resolving any

doubts against the motion.” City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex.

2005).

                                              12
      As discussed above, section 16.009 of the Texas Civil Practice and Remedies

Code provides that suit against a person who constructs or repairs an improvement

to real property must be brought within ten years of the date the improvement to real

property was substantially completed. Tex. Civ. Prac. & Rem. Code Ann. § 16.009.

Section 16.009 further provides that a claim based on “wil[l]ful misconduct or

fraudulent concealment in connection with the performance of the construction or

repair[]” is not barred. Id. § 16.009(e)(3) (West 2002).

      We turn first to the question of whether TWLDC, for purposes of the statute

of repose, improved real property. See id. § 16.009. As discussed above, the Bunches

assert that TWLDC is merely a developer who did not improve the property and, as

such is not entitled to the protection of the statute of repose. As the Bunches note in

their brief, section 16.009 protects a contractor who actually builds an improvement

or who supervises and is contractually responsible for the proper construction of the

improvement. See Reames v. Hawthorne-Seving, Inc., 949 S.W.2d 758, 764 (Tex.

App.—Dallas 1997, writ denied); see also Tex. Civ. Prac. & Rem. Code Ann. §

16.009. To support their argument, the Bunches rely upon Sonnier v. Chisholm-

Ryder Co., Inc., 909 S.W.2d 475 (Tex. 1995). In Sonnier, the Supreme Court was

faced with the issue of whether a manufacturer of a tomato chopper that was installed

and then removed twenty years later and reinstalled elsewhere is protected by section

                                             13
16.009; that is, whether the tomato chopping machine constituted an improvement

to real property. Id. at 477. In Sonnier, the Supreme Court noted that “[a]n

improvement includes all additions to the freehold except for trade fixtures which

can be removed without injury to the property.” Id. at 479. We note that, in Sonnier,

the Court was specifically addressing whether an item of personalty constituted an

improvement. Id. at 476. In its analysis, the Supreme Court held that “[t]here can be

no improvement without annexation to realty, and until personalty is annexed to

realty, it by definition cannot be an improvement.” Id. at 479.

      Contrary to the Bunches’ argument, Sonnier does not stand for the proposition

that the only way property may be improved is by attaching personalty to realty. See

id. The term “improvement” has a broader significance than the term “fixture,” and

it comprehends “all additions and betterments to the freehold.” Dubin v. Carrier

Corp., 731 S.W.2d 651, 653 (Tex. App.—Houston [1st Dist.] 1987, writ dism’d by

agr.). Black’s Law Dictionary defines “improvement” as “[a]n addition to real

property, whether permanent or not; esp., one that increases its value or utility or

that enhances its appearance.” Black’s Law Dictionary 773 (8th ed. 2004). The

definition provided by the Dubin court comports with that found in Black’s Law

Dictionary. See Dubin, 731 S.W.2d at 653; Black’s Law Dictionary 773. In addition,

case law provides that the repose statute protects general contractors upon a proper

                                            14
showing. See Jenkins v. Occidental Chem. Corp., 415 S.W.3d 14, 25-26 (Tex.

App.—Houston [1st Dist.] 2013), overruled on other grounds, 478 S.W.3d 640 (Tex.

2016) (holding that the statute of repose applies to an entity acting as a general

contractor or that is ultimately responsible for the construction); Reames, 949

S.W.2d at 763 (holding that although Hawthorne-Seving did not physically construct

an improvement itself, it was sufficiently involved to be considered a contractor

because it was acting as a general contractor and bore ultimate responsibility for

proper installation).

      The key issue is whether TWLDC’s activities in developing the land

constituted an “improvement.” As the Bunches point out, because Sutton is

TWLDC’s Co-President, he is an interested witness. Accordingly, before

considering Sutton’s affidavit, we will address this argument.

      Rule 166a(c) of the Texas Rules of Civil Procedure provides in pertinent part:

“A summary judgment may be based on uncontroverted testimonial evidence of an

interested witness . . . if the evidence is clear, positive and direct, otherwise credible

and free from contradictions and inconsistencies, and could have been readily

controverted.” Tex. R. Civ. P. 166a(c). As discussed above, the Bunches assert that

Sutton’s affidavit is not clear, positive, direct, and free from contradictions and

inconsistencies when considered together with his deposition testimony.

                                               15
      In the deposition excerpts the Bunches provided from Sutton’s testimony with

their response to TWLDC’s motion for summary judgment, when asked whether

subdivisions were substantially complete when paving and utilities were installed,

Sutton testified as follows: “I would put a finer cut on that. And that is to say that

when the paving and utilities, including power and gas, are -- installed -- . . . which

are . . . not managed by us.” The following exchange then occurred between counsel

and Sutton:

               Q. But in terms of when they’re substantially complete with
      respect to when The Woodlands’ contract is finished, it’s paving and .
      . . utilities, such as sewer and water, correct?
               A. Well . . . define for me “substantially complete.”
               Q. All right. When Woodlands has nothing left to do and is ready
      to sell the property to the homebuilders.
               A. And . . . what I’m saying is that we’re not ready to sell the
      property to the homebuilders until the electricity and telephone and gas
      are installed on a usual basis. Now, that can sometimes be sold earlier
      if . . . a builder wanted to get the building sooner and wanted to, say,
      build in model homes or something like that. But . . . the ordinary course
      of business is that the lots are turned over at that point.
               And there’s one more thing done, too; and that is, that the
      stabilization of the soil is put in place.

      When asked what records TWLDC has as to when electrical and dry utilities

were installed in a particular subdivision, Sutton testified that such records are

difficult to obtain because utilities usually call rather than send a letter confirming

that installation is complete. When asked whether he had an “independent

recollection” of when Carlton Woods, Section 5, was substantially complete, Sutton
                                             16
testified, “I do not[,]” but he explained that “[t]here would be records of when we

paid our contractors.” After being asked during the deposition to review various

documents and then being asked whether the contract for Section 5 would have been

completed in November or December of 2000, Sutton testified, “Probably so.” In his

affidavit, Sutton averred that his affidavit was “true and correct” and based on his

“personal knowledge and information contained in TWLDC’s business records.”

      We see no conflict or inconsistency between Sutton’s deposition testimony,

when he testified that pertinent records existed but he did not have personal

knowledge of the date of substantial completion of Carlton Woods Section 5 at that

time, and his affidavit, which he signed after having the opportunity to review

TWLDC’s records. We therefore conclude that the trial court did not err by

considering Sutton’s affidavit, which was clear, positive, direct, credible, free from

contradictions and inconsistencies, and could have been readily controverted. See

Tex. R. Civ. P. 166a(c).

      With respect to Carlton Woods, Section 5, Sutton averred as follows:

      Once a subdivision was designed and planned, TWLDC undertook to
      construct the various improvements -- such as streets, water, sanitary
      sewer[,] and drainage facilities, residential lots and commercial areas,
      mailbox pads, and underground utilities, including electricity, cable,
      gas, and telephone. TWLDC served as its own general contractor,
      retaining subcontractors such as engineers, architects, geotechnical
      labs, inspectors, clearing contractors, paving contractors, and utility
      contractors to design, construct, and inspect the infrastructure for the
                                             17
      creation of developed property. As general contractor, TWLDC
      managed and oversaw the construction of these improvements through
      subcontractors and coordinated all the work. Specifically, TWLDC
      determined and directed the type, scope, and timetable of the
      construction; hired and selected the subcontractors to perform the
      construction; monitored the construction to ensure it was done properly
      and in accordance with the planning and design schematic; financed the
      construction; coordinated all the work, and communicated and
      coordinated efforts with, and secured approvals from, applicable
      government agencies. TWLDC bore ultimate responsibility for the
      construction of these improvements.

      ...

      TWLDC, as developer, contracted E.B. Peavy Construction Co., Inc. to
      undertake clearing operations in [Carlton Woods] Section 5. The
      clearing operations were completed by October 17, 2000. TWLDC also
      undertook the construction of water, sanitary sewer and drainage
      facilities in [Carlton Woods] Section 5 when it contracted with E&C
      Group, Inc. to construct these improvements. The construction of
      water, sanitary sewer[,] and drainage facilities in [Carlton Woods]
      Section 5 was completed by December 20, 2000. TWLDC also
      undertook construction of streets when it contracted with R. Hassell and
      Company, Inc. to construct streets in [Carlton Woods] Section 5. The
      road construction was completed by December 22, 2000. Thus,
      TWLDC’s construction of improvements to CW Section 5 was
      substantially complete by December 22, 2000.

Stated simply, Sutton averred that TWLDC designed the subdivision, and engaged

subcontractors for its construction. Sutton further averred that construction of

improvements to the Bunches’ subdivision was substantially complete by December

22, 2000.



                                            18
      We conclude that the trial court did not err by finding that construction work

for which TWLDC was responsible as general contractor resulted in an improvement

to the property, thereby bringing TWLDC within the protection of section 16.009,

nor did the trial court err by impliedly concluding that the improvements to the

Bunches’ subdivision were substantially complete by December 22, 2000. See Tex.

Civ. Prac. & Rem. Code Ann. § 16.009; Dubin, 731 S.W.2d at 653; see also Black’s

Law Dictionary 773. In addition, the Bunches do not fall within the extended notice

period provided by section 16.009, which states that if a claimant presents a written

claim for damages during the ten-year limitations period, the period is extended for

two years from the date the claim is presented. Tex. Civ. Prac. & Rem. Code Ann. §

16.009(c). In their briefing, the Bunches assert that they provided notice of the

alleged defects on June 11, 2011, when they sent a written demand for damages to

TWLDC. As discussed above, Sutton’s affidavit stated that TWLDC’s

improvements to the Bunches’ subdivision were completed on December 22, 2000.

Because the Bunches did not provide written notice prior to the expiration of the ten-

year limitations period, the running of section 16.009 was not tolled. See id.

      Lastly, we turn to the Bunches’ contention that the statute of repose does not

bar their claim because they pleaded and proved fraudulent concealment. As support

for their theory of fraudulent concealment, the Bunches apparently rely upon the

                                             19
allegations in their pleadings, as well as TWLDC’s statements in a Homebuyer

Information disclosure document. The Bunches stated that the Homebuyer

Information document represented that environmental and land use issues that might

affect their decision about whether to buy a home “include – but are not limited to –

the location of wastewater treatment plants, water treatment and storage facilities,

recreational facilities, drill[]sites/production facilities sites, schools, churches[,] and

retail establishments/sites for retail establishments.” The Bunches argue that this

constitutes fraudulent concealment because when TWLDC made this “partial

disclosure” it “had in its possession a report about the possibility of surface faulting

in the area encompassing the Bunches’ property.”

       Pleadings do not constitute summary judgment evidence. Laidlaw Waste Sys.

(Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660-61 (Tex. 1995). “When the

elements of the defense of limitations are established prima facie by a movant for

summary judgment, the burden falls on the respondent to come forward with proof

supporting its allegations of fraudulent concealment.” Suburban Homes v. Austin-

Northwest Dev. Co., 734 S.W.2d 89, 91 (Tex. App.—Houston [1st Dist.] 1987, no

writ). The elements of fraudulent concealment are the existence of the underlying

tort, the defendant’s knowledge of the tort, the defendant’s use of deception to



                                               20
conceal the tort, and the plaintiff’s reasonable reliance on the deception. Vial v. Gas

Sols., Ltd., 187 S.W.3d 220, 229 (Tex. App.—Texarkana 2006, no pet.).

      Sutton averred in his affidavit that “TWLDC was not aware of any purported

active geologic fault allegedly lying underneath” the Bunches’ property “at the time

of their development and sale, or now.” In addition, Sutton averred that “TWLDC

never did anything to conceal or cover up any wrongdoing in connection with any

of these improvements or with any purported active geologic fault allegedly lying

underneath” the Bunches’ property. The Bunches did not produce a controverting

affidavit, nor did they produce any other summary judgment evidence that TWLDC

fraudulently concealed the alleged existence of geologic faults from the Bunches.

Heineman and Wendt also averred in their affidavits that they were not aware of any

purported active geologic fault allegedly lying beneath the Bunches’ property at the

time of their development and sale, or now. We conclude that TWLDC established

that it was entitled to judgment as a matter of law and that no genuine issues of

material fact existed as to the application of the statute of repose. See Tex. R. Civ.

P. 166a(c); Johnson, 891 S.W.2d at 644. The Bunches provided no summary

judgment evidence contradicting the affidavits of Sutton, Heineman, and Wendt, nor

did they produce documentary evidence creating a genuine issue of material fact as



                                             21
to the date of substantial completion or the elements of fraudulent concealment. See

Vial, 187 S.W.3d at 229.

      For all of these reasons, the trial court did not err by granting summary

judgment in favor of TWLDC on the issue of the statute of repose. See Tex. Civ.

Prac. & Rem. Code Ann. § 16.009. We overrule issue one. Because we have

determined that the trial court properly granted summary judgment on the issue of

repose, we need not consider issue two, in which the Bunches challenge the trial

court’s granting of summary judgment on the merits of their claims.

                                  ISSUE THREE

      In their third issue, the Bunches assert that the trial court erred by denying

their motion for new trial. The Bunches state in their brief that their motion for new

trial was based upon the existence of newly-discovered evidence, which showed that

“TWLDC did not complete construction of nearby improvements in Section 5 of

Carlton Woods until much later than it claimed and did not complete The Club at

Carlton Woods until March 2003[.]”

      To obtain a new trial based upon newly-discovered evidence, a party must

show that (1) the evidence came to his knowledge after trial, (2) his failure to

discover the evidence sooner was not due to a lack of diligence, (3) the evidence is

not cumulative, and (4) the evidence is “so material [that] it would probably produce

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a different result if a new trial were granted.” Waffle House, Inc. v. Williams, 313

S.W.3d 796, 813 (Tex. 2010). We review a trial court’s denial of a motion for new

trial for abuse of discretion. Id.

       In their appellate brief, the Bunches argue that, at the hearing on TWLDC’s

motion for summary judgment on repose, “TWLDC argued for the first time that

[the] improvements it made near, but not on, the Bunches’ property (i.e. streets and

mailbox pads) would entitle TWLDC to protection under § 16.009.”5 The Bunches

also argue that the trial court erred by sustaining TWLDC’s objections to some of

the exhibits to their motion for new trial. The Bunches state in their brief that four

of the exhibits were produced by TWLDC in response to the Bunches’ requests for

production. We conclude that the Bunches did not establish that the evidence did not

come to their knowledge until after trial or that the evidence would probably produce

a different result if a new trial were granted. See id. Accordingly, we conclude that

the trial court did not err by denying the Bunches’ motion for new trial. See id. We

overrule issue three and affirm the trial court’s judgment.

       AFFIRMED.




       5
      We note that, in its motion for summary judgment, TWLDC argued that it
developed the property by constructing, among other things, streets and mailbox
pads.
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                                           ______________________________
                                                  STEVE McKEITHEN
                                                      Chief Justice


Submitted on April 13, 2017
Opinion Delivered July 20, 2017

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




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