                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-245-CV


RICHARD PRESLEY AND                                            APPELLANTS
TINA PRESLEY
                                             V.

SEARS ROEBUCK & CO.                                                APPELLEE

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      FROM COUNTY COURT AT LAW NO. 2 OF TARRANT COUNTY

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                         MEMORANDUM OPINION 1

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     Appellants Richard Presley and Tina Presley (“Richard,” “Tina,” or

collectively, “Appellants”) appeal from the trial court’s granting of summary

judgment in favor of Appellee Sears Roebuck & Co. (“Sears”). In two issues,

Appellants argue that the trial court erred by granting the summary judgment

on limitations and standing grounds. We will affirm.



     1
         … See T EX. R. A PP. P. 47.4.
      American Remodeling sold, furnished, and installed windows and siding

for residential use under name throughout the 1980s. In late February 1983,

Tina purchased windows and siding for her house, and American Remodeling

installed the new units a few weeks later. The representative who sold Tina

the windows told her and Richard that the windows and siding would remain

in the same condition for twenty or twenty-five years and that they had a

lifetime warranty. According to Appellants, the representative also warranted

that the windows and siding had been installed in a good and workmanlike

manner.

      Within two or three weeks after the installation, Appellants noticed that

the windows were leaking. They reported this to American Remodeling, who

inspected the windows and attempted to remedy the leaks by recaulking the

windows.    Appellant contacted American Remodeling about a month later

because the windows were leaking once again, sheetrock near the windows

was softening and cracking, and water stains were developing.        American

Remodeling again inspected and recaulked the windows. Three months later,

Appellants were still experiencing water damage; sheetrock was becoming

softer, the cracks were larger on each side of the windows, and the inside of

the base of the windowsill was visible, revealing wet, saturated insulation. An

American Remodeling representative inspected and recaulked the windows.

                                      2
Appellants contacted American Remodeling two more times in October 1983

and January 1984 complaining of water infiltration; American Remodeling

recaulked the windows.

      At some point before October 1983, an individual who installed windows

and siding for a living inspected Appellants’ windows and informed them that

the windows had been installed incorrectly. One of Appellants’ neighbors also

informed them around January 1984 that the windows had been installed

incorrectly because they were pointing inward instead of outward.

      Appellants contacted American Remodeling approximately ten more times

between January 1984 and July 2002 complaining of the leaking windows. In

July 2002, Jerry Joplin, an employee of American Remodeling, inspected the

windows and informed Appellants that the windows needed to be replaced

because they had been installed incorrectly.

      Appellants filed suit against Sears on May 4, 2006, for the water leaks

and water infiltration resulting from the allegedly improperly installed windows.

They ultimately asserted claims against Sears for violations of the Deceptive

Trade Practices Act (“DTPA”), breach of contract, negligence, and breach of

express oral warranties.    They further alleged that Sears intentionally or

negligently induced them into believing that American Remodeling was Sears’s

agent in the purchase of the windows and siding, that the actions of Sears,

                                       3
American Remodeling, or both constituted fraudulent concealment, and that

Sears was vicariously liable as a result of the apparent authority of American

Remodeling to act on Sears’s behalf.          Sears generally denied each of

Appellants’ allegations and asserted that Appellants’ claims were time-barred

by the applicable statute of limitations and that Richard lacked standing to sue.

Sears moved for summary judgment on its limitations and standing affirmative

defenses, and the trial court granted summary judgment in favor of Sears on

both grounds and on all of Appellants’ claims. This appeal followed.

      In their first issue, Appellants argue that the trial court erroneously

granted summary judgment in favor of Sears because they brought forth

evidence raising a genuine issue of material fact on Sears’s limitations

affirmative defense.    Sears contends that the trial court properly granted

summary judgment on its limitations affirmative defense because the statute of

limitations bars Appellants’ breach of warranty claim, which accrued in 1983.2


      2
        … As to the limitations ground, Appellants challenge only the trial court’s
grant of summary judgment on their breach of warranty claim; they include no
argument or analysis (1) setting forth the applicable statute of limitations and
relevant law for their DTPA, negligence, and breach of contract claims and (2)
explaining why their summary judgment evidence raised a fact issue on those
claims. To the extent Appellants’ brief can be construed as arguing that the
trial court erroneously granted summary judgment on limitations grounds as to
all of their claims because they raised a fact issue on their fraudulent
concealment defense, our analysis of their concealment defense below resolves
that argument, if made.

                                        4
      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. T EX. R. C IV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,

215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). The burden of proof is on the movant, and all doubts about

the existence of a genuine issue of material fact are resolved against the

movant. Sw. Elec. Power Co., 73 S.W.3d at 215. When reviewing a summary

judgment, we take as true all evidence favorable to the nonmovant, and we

indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

      A defendant is entitled to summary judgment on an affirmative defense

if the defendant conclusively proves all the elements of the affirmative defense.

Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).                To

accomplish this, the defendant-movant must present summary judgment

evidence that establishes each element of the affirmative defense as a matter

of law. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). Thus,

a defendant who moves for summary judgment on the affirmative defense of

limitations has the burden to conclusively establish the defense, which includes

proving when the cause of action accrued and, if applicable, negating the

                                       5
discovery rule 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. KPMG

Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.

1999); Dean v. Frank W. Neal & Assocs., Inc., 166 S.W.3d 352, 355–56 (Tex.

App.—Fort Worth 2005, no pet.). 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 limitations.

KPMG Peat Marwick, 988 S.W.2d at 748.

      The Uniform Commercial Code provides a four-year limitation period for

breach of an express warranty.     T EX. B US. & C OM. C ODE A NN. § 2.725(a)

(Vernon 1994); PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146

S.W.3d 79, 92 (Tex. 2004); Safeway Stores, Inc. v. Certainteed Corp., 710

S.W.2d 544, 546 (Tex. 1986).      A cause of action for breach of warranty

accrues when the breach occurs, and a breach of warranty occurs when tender

of delivery is made, except that where a warranty explicitly extends to future

performance of the goods and discovery of the breach must await the time of

such performance, the cause of action accrues when the breach is or should

have been discovered. T EX. B US. & C OM. C ODE A NN. § 2.725(b); PPG Indus.,

Inc., 146 S.W.3d at 92–93; Safeway Stores, Inc., 710 S.W.2d at 546; Carlisle

                                      6
Corp. v. Med. City Dallas, Ltd., 196 S.W.3d 855, 862 (Tex. App.—Dallas

2006, pet. granted). For an express warranty to meet the exception in section

2.725(b), it must make specific reference to a specific date in the future.

Safeway Stores, Inc., 710 S.W.2d at 548; Belmonte v. Baxter Healthcare

Corp., No. 05-00-01579-CV, 2002 WL 560996, at *4 (Tex. App.—Dallas Apr.

16, 2002, no pet.) (not designated for publication).

      In support of its motion for summary judgment, Sears attached excerpts

from Richard’s and Tina’s depositions and an affidavit and deposition excerpts

of James Sparling, the “National Business Manager [of] Home Services for

[Sears].”      Sears’s summary judgment evidence demonstrates that Tina

purchased the windows and siding in late February 1983. The representative

who sold the windows and siding to Tina stated that the goods had a twenty-

five year or lifetime warranty or guarantee. Appellants experienced significant

problems with leaks occurring over the next eleven months.          The water

infiltrated Appellants’ home through the windows and caused damage to

sheetrock and insulation. Appellants were told by two individuals—once in

1983 and once in January 1984—that the windows had been installed

incorrectly.

      Assuming without deciding or agreeing that the warranty accompanying

the windows and siding was an express warranty meeting the exception in

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section 2.725(b) of the business and commerce code, Sears’s summary

judgment evidence establishes that Appellants discovered or should have

discovered the breach in 1983 or January 1984, when Appellants experienced

significant damage to their home as a result of the leaking windows.

Appellants’ breach of an express warranty cause of action thus accrued no later

than January 1984, but they did not file suit until May 4, 2006, approximately

twenty-two years later. We hold that Sears met its burden of conclusively

establishing that Appellants’ breach of warranty claim is barred by the

applicable statue of limitations as a matter of law.

      Appellants’ summary judgment evidence includes their affidavits and

excerpts from their depositions. They argue that they raised a fact issue on

Sears’s limitations affirmative defense because “there was no breach of the

express warranty contract for failing to perform future curative work upon

which [they] could assert a claim” prior to Sears’s “2002 repudiation of its

lifetime warranty.” But Appellants’ breach of warranty claim did not accrue

when Sears repudiated its lifetime warranty; it accrued no later than January

1984 because that is when Appellants discovered or should have discovered

the breach. See T EX. B US. & C OM. C ODE A NN. § 2.725(b). The supreme court

addressed a similar argument in PPG Industries and reasoned as follows:




                                       8
             We did not hold (as JMB asserts) in Austin Co. v. Vaughn
      Building Corp. that limitations was tolled until a seller stops making
      repairs; instead, we held a warranty for repair services was not
      breached until further repairs were refused. A warranty to make
      repairs is a warranty for services, not of goods, and thus falls
      outside the UCC. We long ago held that limitations accrues upon
      breach of a repair warranty only if that was the basis of the suit;
      if instead the basis was a warranty as to the goods themselves,
      limitations accrues upon delivery.

            In this case, JMB asserted no claim for breach of a repair
      warranty. . . . JMB’s complaints arose from defects in the
      underlying goods, and thus accrued when they failed, not when
      PPG refused to keep manufacturing and sending replacements with
      the same problem.

PPG Indus., Inc., 146 S.W.3d at 96 (citations omitted).          Likewise, here,

Appellants’ claim is for breach of an express warranty involving goods, not

breach of a repair warranty, and Appellants’ cause of action thus accrued when

they discovered or reasonably should have discovered the breach of warranty,

not when Sears repudiated the warranty.3


      3
        … It is not clear from Appellants’ brief, partly because they rely on
section 2.725(b) of the business and commerce code for their argument, but
if they are attempting to argue that they raised a fact issue concerning Sears’s
breach of a repair warranty, we note that they produced no summary judgment
evidence showing that Sears ever made a warranty for repair services;
Appellants have only produced summary judgment evidence that Sears made
a warranty for the windows and siding and a warranty that the windows had
been installed in a good and workmanlike manner. Moreover, although
Appellants state that Sears “warranted . . . that the windows had been installed
in a good and workmanlike manner,” we are unable to determine from
Appellants’ brief if they are challenging the trial court’s decision to grant
summary judgment in favor of Sears on this warranty, which is a claim not

                                        9
      Appellants further attempt to avoid the effects of the statute of

limitations by arguing that they submitted evidence raising a genuine issue of

material fact that Sears fraudulently concealed the breach of warranty. They

argue that their breach of warranty cause of action accrued in 2002 because

“[i]t was not until July 30, 2002, when Jerry Joplin was sent out by Defendant

in response to the continuing complaint, that Plaintiffs were told that the

problem was in the installation of the siding and windows and caulking would

not fix the problem.”

      Accrual of a cause of action is deferred in a case involving fraudulent

concealment. S.V. v. R.V., 933 S.W.2d 1, 6 (Tex. 1996); Computer Assocs.

Int’l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455–56 (Tex. 1996). Fraudulent

concealment works to estop a defendant from asserting limitations as a defense

because a person cannot be permitted to avoid liability for his actions by

deceitfully concealing wrongdoing until limitations has run. S.V., 933 S.W.2d

at 6. When a defendant has fraudulently concealed the facts forming the basis

of the plaintiff’s claim, limitations does not begin to run until the claimant, using

reasonable diligence, discovered or should have discovered the injury. KPMG



involving goods and, thus, not subject to analysis under the UCC. Because
Appellants provide no analysis or explanation differentiating this argument from
their breach of warranty-goods argument, it is waived to the extent they assert
such an argument. See T EX. R. A PP. P. 38.1(h).

                                         10
Peat Marwick, 988 S.W.2d at 750. The elements of fraudulent concealment

are (1) the existence of the underlying tort, (2) the defendant’s knowledge of

the tort, (3) the defendant’s use of deception to conceal the tort, and (4) the

plaintiff’s reasonable reliance on the deception. Glover v. Union Pac. R.R. Co.,

187 S.W.3d 201, 217 (Tex. App.—Texarkana 2006, pet. denied); Mitchell

Energy Corp. v. Bartlett, 958 S.W.2d 430, 439 (Tex. App.—Fort Worth 1997,

pet. denied). Fraudulent concealment thus requires actual knowledge by the

defendant that a wrong has occurred and “a fixed purpose to conceal the facts

necessary for the plaintiff to know that it has a cause of action.” Vial v. Gas

Solutions, Ltd., 187 S.W.3d 220, 230–31 (Tex. App.—Texarkana 2006, no

pet.).

         Citing to their affidavits, Appellants contend that Sears “concealed the

improper installation of the windows by repeatedly misrepresenting what was

needed to cure the problem,” that Sears told them “the only thing needed to

repair the windows was a bit of caulking,” and that they relied on Sears’s

representations because they are not knowledgeable in window installation or

repair. The affidavits of both Tina and Richard affirm that Sears representatives

told them that the only repair to the windows needed was additional caulking,

that there were no problems with the windows that the caulking would not fix,

and that the problems with the windows were fixed.               Indulging every

                                        11
reasonable inference and resolving any doubts in Appellants’ favor, we

conclude that neither Tina’s nor Richard’s affidavit set forth any evidence

raising a genuine issue of material fact that Sears used any deception to

conceal the facts underlying the breach of warranty. The summary judgment

evidence demonstrates that the representatives were simply incorrect in their

assessment of the repairs needed to remedy the problems associated with the

window, and Appellants’ claim that Sears fraudulently concealed the fact that

the windows had been installed incorrectly amounts to mere suspicion.

“[S]ome suspicion linked to other suspicion produces only more suspicion,

which is not the same as some evidence.” Browning-Ferris, Inc. v. Reyna, 865

S.W.2d 925, 927 (Tex. 1993). Appellants therefore failed to raise a genuine

issue of material fact on an essential element of their fraudulent concealment

defense to Sears’s limitations affirmative defense.

         We hold that Appellants failed to bring forth summary judgment evidence

controverting Sears’s conclusive evidence that Appellants’ breach of warranty

claim is barred by the applicable statute of limitations. Consequently, we hold

that the trial court did not err by granting summary judgment in favor of Sears

on its limitations affirmative defense. Accordingly, we overrule Appellants’ first

issue.




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      Because we hold that the trial court properly granted summary judgment

on Sears’s limitations affirmative defense, we need not consider whether the

trial court erroneously granted summary judgment on Sears’s standing defense.

See T EX. R. A PP. P. 47.1.

      Having overruled Appellants’ first issue and determined that we need not

consider their second issue, we affirm the trial court’s judgment.




                                           DIXON W. HOLMAN
                                           JUSTICE

PANEL B: DAUPHINOT, HOLMAN, and WALKER, JJ.

WALKER, J. concurs without opinion.

DELIVERED: March 27, 2008




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