Affirmed and Memorandum Opinion filed May 31, 2018.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-17-00556-CV

                     ALIZABETH NICKOLS, Appellant
                                       V.
OASIS REMARKETING, LLC, D/B/A DISCOVERY AUTO ENTERPRISE,
                         Appellee

                   On Appeal from the 234th District Court
                           Harris County, Texas
                     Trial Court Cause No. 2016-11376

                 MEMORANDUM OPINION
      Appellant Alizabeth Nickols appeals from a summary judgment granted to
appellee Oasis Remarketing, LLC, d/b/a Discovery Auto Enterprise (“Oasis”) on
Nickols’s claims under the Texas Deceptive Trade Practices Act (“DTPA”). We
conclude that Oasis conclusively established its entitlement to summary judgment
on limitations grounds and accordingly affirm the judgment.
                                   Factual Background

       We accept as true the following facts taken from Nickols’s live petition or her
response to the motion for summary judgment.1

       On November 30, 2011, Nickols purchased a used Volkswagen automobile
from Oasis. The car came with a limited warranty that expired at either 100,000
miles or five years from the date of purchase, whichever occurred first. The warranty
agreement was between Nickols and Auto Service Company, Inc. (“ASC”). When
Nickols took possession, the car’s odometer read 75,276 miles. As of December 1,
2015, the car’s odometer read 89,978 miles.

       ASC paid for various repairs until August 17, 2015, when Nickols sought
warranty coverage for additional repairs but was denied. ASC refused to pay for
additional repairs because the warranty agreement limited repair payments to the
car’s “NADA loan value,” and as of August 2015 ASC had paid in excess of $800
over the loan value. ASC cited text in the warranty agreement stating:

                                 LIMITS OF LIABILITY
  IN NO CASE SHALL THE TOTAL OF ALL REPAIRS PAID OR PAYABLE
   EXCEED THE NADA LOAN VALUE OR VEHICLE PURCHASE PRICE,
          WHICHEVER IS LESS AT THE TIME OF REPAIR(S).

       The copy of the warranty agreement in Nickols’s possession since the date of
purchase was incomplete and did not show the limitation of liability language.

                                 Procedural Background

       Nickols filed suit against Oasis on February 23, 2016. Nickols alleged that
Oasis orally assured her when she bought the car that the warranty would protect her


       1
         See Boon Ins. Agency, Inc. v. Am. Airlines, Inc., 17 S.W.3d 52, 54-55 (Tex. App.—Austin
2000, pet. denied).

                                               2
for five years. Nickols further contended she would not have bought the car if Oasis
had told her that the warranty coverage for repairs was limited by the declining value
of the car. She asserted a claim under the DTPA, alleging that Oasis committed
three acts specifically prohibited under the act. See Tex. Bus. & Com. Code
§ 17.46(b)(12), (20), (24).2           She also alleged that Oasis’s conduct was
unconscionable.

      Oasis answered and asserted a counterclaim for attorneys’ fees under Texas
Business and Commerce Code section 17.5052, relating to offers of settlement. Id.
§ 17.5052.

      Oasis filed a traditional motion for partial summary judgment.                           Oasis
designated the motion “partial” in the sense that Oasis sought summary judgment on
Nickols’s affirmative claim but did not seek summary judgment on Oasis’s
counterclaim for attorneys’ fees. Oasis asserted two grounds for summary judgment
on Nickols’s DTPA claim: (1) her claim was barred by the applicable statute of

      2
          These sections provide:
      (b) Except as provided in Subsection (d) of this section, the term “false, misleading,
      or deceptive acts or practices” includes, but is not limited to, the following acts:
                                               ...
      (12) representing that an agreement confers or involves rights, remedies, or
      obligations which it does not have or involve, or which are prohibited by law;
                                               ...
      (20) representing that a guaranty or warranty confers or involves rights or remedies
      which it does not have or involve, provided, however, that nothing in this
      subchapter shall be construed to expand the implied warranty of merchantability as
      defined in Sections 2.314 through 2.318 and Sections 2A.212 through 2A.216 to
      involve obligations in excess of those which are appropriate to the goods;
                                               ...
      (24) failing to disclose information concerning goods or services which was known
      at the time of the transaction if such failure to disclose such information was
      intended to induce the consumer into a transaction into which the consumer would
      not have entered had the information been disclosed; . . .

                                                3
limitations; or, alternatively, (2) to the extent Nickols relied on “verbal
representations of [Oasis] in lieu of the contents of the written contract,” her reliance
was unreasonable as a matter of law under the statute of frauds. Regarding its
limitations ground, Oasis argued that the alleged deceptive act occurred November
30, 2011, and Nickols filed suit on February 23, 2016. As discussed below, the
applicable limitations period for the DTPA claims Nickols asserted is two years from
the date of the false, misleading, or deceptive act, or within two years of the date the
consumer discovered or should have, with reasonable diligence, discovered the false,
misleading, or deceptive act.

       Oasis claimed entitlement to summary judgment regardless which limitations
period applied. First, Nickols did not file her lawsuit within two years of November
30, 2011, the date of purchase. Second, taking as true Nickols’s contention that
Oasis provided her an incomplete copy of the warranty agreement on the date of
purchase, Oasis argued that Nickols, had she exercised reasonable diligence, such as
by reading the agreement, should have discovered the alleged deceptive act as of
November 30, 2011. Oasis further argued that had Nickols read the agreement any
time after November 30, 2011 while she undisputedly possessed it, she would have
realized it was incomplete. Upon requesting a complete copy, Nickols would have
learned that the agreement’s terms were not consistent with what she now contends
was her understanding of the warranty as allegedly explained by Oasis’s
representative. But Nickols made no attempt to obtain a complete copy of the
agreement until after August 17, 2015.3



       3
         Oasis attached to its summary judgment motion two copies of the warranty agreement.
The first was a complete copy purporting to bear Nickols’s signature. The second was an
incomplete copy Nickols produced in discovery as the version she received at the time she took
possession of the vehicle.

                                              4
       Nickols filed a response to Oasis’s motion. In her response, Nickols argued
that the version of the warranty agreement that is complete and purports to bear her
signature is a forgery. According to Nickols, the copy of the warranty agreement
she received at the time of purchase was incomplete—it did not contain the limiting
language cited above—and unsigned by her. In response to Oasis’s argument that
the copy of the agreement in her possession since November 30, 2011 should have
alerted her to its incomplete nature, Nickols asserted that Oasis’s conduct was
unconscionable.

       Following a hearing, the trial court signed an order granting Oasis’s motion
on April 10, 2017. The order does not state the grounds on which the court granted
Oasis’s motion. The order was interlocutory because Oasis’s claim for attorneys’
fees remained pending.4 Oasis non-suited its counterclaim on July 7, 2017. The
court signed a final judgment disposing of all claims and all parties four days later
on July 11, 2017.

       Nickols filed a timely notice of appeal.

                                            Issues

       In two issues, Nickols argues that the trial court erred in granting summary
judgment for Oasis, and that this court should remand for trial. Nickols presents a
combined argument as to both issues.




       4
          The text of the order states that it granted Oasis’s “Motion for No-Evidence Summary
Judgment.” We consider the reference to a “no-evidence” motion a scrivener’s error. The trial
court could not have granted a no-evidence motion for summary judgment because Oasis did not
file such a motion and, further, Oasis could not have sought a no-evidence summary judgment on
its affirmative defenses of limitations and the statute of frauds. See Haver v. Coats, 491 S.W.3d
877, 881 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

                                               5
                                      Analysis

A.    Standard of review

      We review the trial court’s grant of summary judgment de novo. Lopez v.
Ensign U.S. S. Drilling, LLC, 524 S.W.3d 836, 841 (Tex. App.—Houston [14th
Dist.] 2017, no pet.) (citing Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding,
289 S.W.3d 844, 848 (Tex. 2009)). In the traditional summary judgment context, as
here, the movant has the burden to conclusively show there is no genuine issue of
material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P.
166a(c); Lopez, 524 S.W.3d at 841. A defendant moving for summary judgment on
the affirmative defense of limitations must conclusively establish that defense by (1)
showing when the cause of action accrued, and (2) negating 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 the injury.
See KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748
(Tex. 1999); DeWolf v. Kohler, 452 S.W.3d 373, 389 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). When the facts are not disputed, the question of when a cause
of action accrues is a question of law. Cody Tex., L.P. v. BPL Expl., Ltd., 513 S.W.3d
522, 532 (Tex. App.—San Antonio 2016, pet. denied); Loyd v. ECO Res., Inc., 956
S.W.2d 110, 126-27 (Tex. App.—Houston [14th Dist.] 1997, no writ), abrogated on
other grounds by Tooke v. City of Mexia, 197 S.W.3d 325, 342-43 (Tex. 2006).

      Once the defendant produces sufficient evidence to establish the right to
summary judgment, the burden shifts to the plaintiff to come forward with
competent controverting evidence raising a genuine issue of material fact. Centeq
Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a
genuine issue of material fact if reasonable and fair-minded jurors could differ in

                                          6
their conclusions in light of all of the summary judgment evidence. Goodyear Tire
& Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007) (per curiam). In
evaluating whether the nonmovant has met her burden, we accept as true all evidence
favorable to the nonmovant, indulging every reasonable inference and resolving any
doubts in the nonmovant’s favor. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672,
675-76 (Tex. App.—Houston [14th Dist.] 2007, pet. denied); see also Mack Trucks,
Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006) (in de novo review of summary
judgment, court considers all the evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors
could, and disregarding contrary evidence unless reasonable jurors could not).

      Finally, when, as here, the trial court grants a motion for summary judgment
without specifying the grounds, we will affirm the trial court’s judgment if any of
the independent grounds supporting the motion are meritorious.            FM Props.
Operating Co. v. City of Austin, 22 S.W.3d 868, 872-73 (Tex. 2000).

B.    The trial court did not err in granting summary judgment because the
      statute of limitations bars Nickols’s claim.
      As Nickols acknowledges, the statute of limitations on DTPA claims is two
years. See Tex. Bus. & Com. Code § 17.565; KPMG Peat Marwick, 988 S.W.2d at
749. The relevant provision under the DTPA provides:

      All actions brought under this subchapter 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 § 17.565.

      In its motion for summary judgment, Oasis established the date of the alleged
false, misleading, or deceptive act was November 30, 2011. In her summary

                                          7
judgment response, Nickols did not dispute or controvert this fact. Under the first
clause of section 17.565, Nickols was required to file suit by November 30, 2013.
She filed suit on February 23, 2016. Thus, the trial court’s summary judgment was
correct unless the discovery rule clause of section 17.565 applies, and Nickols raised
a genuine issue of material fact that her cause of action accrued within two years
preceding February 23, 2016.

      Nickols did not raise the discovery rule in her live petition. Ordinarily, a party
claiming reliance on the discovery rule must plead it, including in a DTPA case. See
Houston Livestock Show & Rodeo, Inc. v. Hamrick, 125 S.W.3d 555, 570 (Tex.
App.—Austin 2003, no pet.); Sanders v. Constr. Equity, Inc., 42 S.W.3d 364, 368
(Tex. App.—Beaumont 2001, pet. denied). Despite Nickols’s failure to plead the
discovery rule, Oasis argued in its summary judgment motion that it was entitled to
summary judgment on limitations grounds even under section 17.565’s discovery
rule component.

      The discovery rule does not apply to claims that could have been discovered
during the limitations period through the exercise of reasonable diligence. See
Kerlin v. Sauceda, 263 S.W.3d 920, 925 (Tex. 2008). In her summary judgment
response, Nickols did not attempt to controvert Oasis’s argument that her claim was
time-barred because she discovered, or in the exercise of reasonable diligence should
have discovered, the occurrence of the false, misleading, or deceptive act or practice
more than two years before filing suit. She did not argue or present evidence in her
summary judgment response raising a genuine issue of material fact that she
discovered the occurrence, or should have discovered the occurrence in the exercise




                                           8
of reasonable diligence, after February 23, 2014. In fact, Nickols acknowledged that
she had possession of the incomplete agreement since the date of purchase.5

       Instead, in response to Oasis’s argument that she should have known her copy
of the agreement was incomplete, she contended, without citing authority, that
Oasis’s alleged conduct was unconscionable. Nickols does not adequately advance
the “unconscionability” argument in her brief to this court. See Tex. R. App. P.
38.1(i). Nickols contends on appeal that the summary judgment was error because
she filed suit within one year after her cause of action allegedly arose. However, she
did not advance this argument in her summary judgment response and we cannot
reverse the judgment on a ground not presented in her response. See City of Houston
v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979) (non-movant has
burden to expressly present reasons it avoids summary judgment if movant has
proved it is entitled to summary judgment as a matter of law); Home Loan Corp. v.
JPMorgan Chase Bank, N.A., 312 S.W.3d 199, 205 (Tex. App.—Houston [14th
Dist.] 2010, no pet.) (same); Reyes v. Storage & Processors, Inc., 86 S.W.3d 344,
348 (Tex. App.—Texarkana 2002) (holding that because appellant did not raise
particular issue in response to motion for summary judgment, he may not raise it on
appeal), aff’d, 134 S.W.3d 190 (Tex. 2004). Nor did she plead the discovery rule or
argue the rule’s applicability in response to Oasis’s motion for summary judgment.

        In short, because Nickols presented no evidence to raise a genuine issue of
material fact that her cause of action accrued within two years preceding February
23, 2016, the trial court did not err in granting Oasis’s motion for summary judgment
on limitations grounds.


       5
          Although reasonable diligence is generally an issue of fact, “in some circumstances, we
can still determine as a matter law that reasonable diligence would have uncovered the wrong.”
Hooks v. Samson Lone Star, Ltd. P’ship, 457 S.W.3d 52, 58 (Tex. 2015).

                                               9
                                   Conclusion

      For the above reasons, we affirm the trial court’s judgment.




                                      /s/    Kevin Jewell
                                             Justice



Panel consists of Justices Busby, Brown, and Jewell.




                                        10
