                             NUMBER 13-09-00013-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


SHEREEF HILMY AND MARIANNE HILMY,                                           Appellants,

                                            v.

CEL-ANA ROOFING COMPANY, INC.,                                               Appellee.


                     On appeal from 389th District Court
                          of Hidalgo County, Texas.


                         MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Garza
                Memorandum Opinion by Justice Rodriguez

       This appeal is from a summary judgment granted on the basis that the statute of

repose barred certain claims brought by appellants Shereef Hilmy and Marianne Hilmy

against appellee Cel-ana Roofing Company, Inc. (Cel-ana Roofing) in connection with the

construction and repair of the roof on the Hilmys' residence. See TEX . CIV. PRAC . & REM .
CODE ANN . § 16.009 (Vernon 2002). By a single issue, the Hilmys contend that the trial

court erred in granting Cel-ana Roofing's traditional motion for summary judgment based

on the running of the statute of repose because there was evidence of willful misconduct

and fraudulent concealment. We affirm.

                                              I. BACKGROUND 1

        Cel-ana Roofing, a subcontractor, substantially completed the roof on the Hilmys'

home in Mission, Texas, on or before March 15, 1993. Cel-ana Roofing also performed

repairs on the roof in September 1993, before the Hilmys moved into their home in

November 1993. Six years later on April 16, 1999, and again on October 21, 2002, and

November 6, 2002, Cel-ana Roofing worked on the roof.

        On November 24, 2003, the Hilmys sued Cel-ana Roofing for damage to their home.

The Hilmys claimed that the damage resulted from, among other things, faulty roof

construction.2 Cel-ana Roofing filed three motions for summary judgment—a no-evidence

motion for summary judgment filed on October 3, 2005; a traditional motion for summary

judgment based on the statute of repose, statute of limitations, and lack of due diligence

filed on October 18, 2005, and supplemented on September 19, 2006; and a traditional

and partial summary judgment motion based on the one-satisfaction rule and economic-

loss rule filed on October 12, 2007. The Hilmys responded to Cel-ana Roofing's no-

evidence motion on November 3, 2005, and to Cel-ana Roofing's traditional and partial


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           Because this is a m em orandum opinion and the parties are fam iliar with the facts, we will not recite
them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See
T EX . R. A PP . P. 47.4.

        2
         The Hilm ys sued Cel-ana Roofing for, am ong others, breach of contract, breach of warranty,
negligence, gross negligence, violations of the Texas Deceptive Trade Practices Act, unconscionable conduct,
fraud, negligent m isrepresentation, and conspiracy.

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summary judgment motion based on the one-satisfaction rule and the economic-loss rule

on October 29, 2007. Having reviewed the record, we find nothing filed by the Hilmys in

response to Cel-ana Roofing's traditional motion for summary judgment or its supplemental

motion based on the statute of repose, statute of limitations, and lack of due diligence.

       On June 9, 2008, in an order granting partial summary judgment, the trial court

found that the Hilmys' "causes of action seeking relief based upon . . . Cel-ana Roofing

Company's conduct in the original construction of the house and any repairs completed

more than ten (10) years prior to November 24, 2003 are barred by the Statute of Repose."

The trial court granted Cel-ana Roofing's traditional motion for summary judgment as to

those claims. The trial court denied Cel-ana Roofing's no-evidence motion for summary

judgment, its traditional motion for summary judgment based on the statute of limitations

and lack of due diligence, and its traditional and partial summary judgment based on the

one-satisfaction rule and the economic-loss rule. On December 1, 2008, the trial court

granted the parties' motion to sever and ordered the Hilmys' causes of action seeking relief

based on Cel-ana Roofing's conduct in the original construction of the house and any

repairs completed more than ten years prior to November 24, 2003, severed from the rest

of the suit. This appeal ensued.

                      II. STANDARD OF REVIEW AND APPLICABLE LAW

       The Court's review of the trial court's grant or denial of a traditional motion for

summary judgment is de novo. See, e.g., Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771

(Tex. App.–Corpus Christi 2003, no pet.) (op. on reh'g).         Summary judgment for a

defendant is proper if the defendant disproves at least one element of each of the plaintiff's

claims or affirmatively establishes each element of an affirmative defense to each claim.


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Id. at 772. A non-movant has the burden to respond to a traditional summary judgment

motion if the movant conclusively: (1) establishes each element of its cause of action or

defense; or (2) negates at least one element of the non-movant's cause of action or

defense. See id.

       When a defendant moves for summary judgment based on an affirmative
       defense, such as the statute of repose, the defendant, as movant, bears the
       burden of proving each essential element of that defense. A non-movant
       asserting fraudulent concealment has the burden "to come forward with proof
       raising an issue of fact with respect to" that claim.

Ryland Group v. Hood, 924 S.W.2d 120, 121 (Tex. 1996) (per curiam) (citations omitted).

In other words, "a party asserting fraudulent concealment as an affirmative defense to the

statute of limitations has the burden to raise it in response to the summary judgment

motion and to come forward with summary judgment evidence raising a fact issue on each

element of the fraudulent concealment defense." KPMG Peat Marwick v. Harrison County

Hous. Fin. Corp., 988 S.W.2d 746, 750 (Tex. 1999) (citing TEX . R. CIV . P. 166a(c);

American Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994); Hudson v. Wakefield,

711 S.W.2d 628, 630 n.1 (Tex. 1986); City of Houston v. Clear Creek Basin Auth., 589

S.W.2d 671, 679 (Tex. 1979); Nichols v. Smith, 507 S.W.2d 518, 521 (Tex. 1974)).

       In reviewing motions for summary judgment, issues not expressly presented to the

trial court by written motion or response to a motion for summary judgment cannot be

considered as grounds either to affirm or reverse the trial court's judgment. TEX . R. CIV.

P. 166a; McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993); see

Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 774 (Tex. App.–Corpus Christi

2007, no pet.) (op. on reh'g).




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                                       III. ANALYSIS

       In this case, Cel-Ana Roofing moved for a traditional summary judgment based on

the affirmative defense provided by the statute of repose which requires a party to sue "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." TEX . CIV. PRAC . & REM . CODE ANN . § 16.009(a). Section 16.009(e)(3)

states, however, that the statute of repose does not bar an action based on willful

misconduct or fraudulent concealment in connection with the performance of the

construction or repair. Id. § 16.009(e)(3); Ryland Group, 924 S.W.2d at 121.

       It is undisputed and the summary judgment evidence establishes that Cel-ana

Roofing substantially completed the construction of the roof on the Hilmys' home on or

before March 15, 1993, more than ten years before November 24, 2004, when the lawsuit

was filed alleging damage to real property. It is also undisputed that the roof repairs made

by Cel-ana Roofing in September 1993 were completed more than ten years before suit

was filed. Cel-ana Roofing, thus, met its summary judgment burden to prove as a matter

of law that section 16.009 applies because the Hilmys did not file suit within the ten-year

statutory period. See Ryland Group, 924 S.W.2d at 121; Swilley v. Hughes, 488 S.W.2d

64, 67 (Tex. 1972). The question then is whether the Hilmys raised the affirmative

defenses of willful misconduct and fraudulent concealment in response to the summary

judgment motion and presented enough proof to raise a fact issue on the affirmative

defenses in order to defeat Cel-ana Roofing's right to summary judgment. See Ryland




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Group, 924 S.W.2d at 121; Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984); see

also TEX . R. CIV. P. 166a; Mercier, 214 S.W.3d at 774; McConnell, 858 S.W.2d at 341.

        The only response filed by the Hilmys that addresses the statute of repose is their

response to Cel-ana Roofing's no-evidence motion for summary judgment. In its no-

evidence motion, Cel-ana Roofing argued that the Hilmys had "offered no evidence to

support any act or omission on the part of Cel-ana Roofing that [establishes that] this suit

is not barred by the Statute of . . . Repose." The Hilmys did not raise the affirmative

defenses of willful misconduct and fraudulent concealment in response to Cel-ana

Roofing's argument and offered no evidence to support any act or omission on the part of

Cel-ana Roofing specific to the elements of this defense. Misconstruing Cel-ana Roofing's

argument and citing Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.–Houston

[14th Dist.] 2003, no pet.), the Hilmys responded that Cel-ana Roofing improperly raised

the defense of statute of repose in its no-evidence motion. See id. (concluding that the

defendant improperly filed a no-evidence motion on its own affirmative defense of

limitations). The no-evidence motion, according to the Hilmys, must "challenge a specific

element of the opponent's case, and therefore is not appropriate to raise a challenge

based on an affirmative defense on which the movant has the burden of proof." Thus,

even were we to consider the Hilmys' response to Cel-ana Roofing's no-evidence motion

in this analysis, it provides no support for their argument on appeal. See TEX . R. CIV. P.

166a.

        Additionally, Cel-ana Roofing argued the statute of repose bar in great detail in its

traditional motion for summary judgment. As set out above, in this motion, Cel-ana

Roofing moved for summary judgment based on the statute of repose and met its burden


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of proving the elements of that defense.       See Ryland Group, 924 S.W.2d at 121.

Therefore, the Hilmys, who are now asserting willful misconduct and fraudulent

concealment as a defense to the limitations bar, had the burden of raising those defenses

in response to Cel-ana Roofing's traditional summary judgment motion and of coming

forward with summary judgment evidence raising a fact issue on each element of their

defense. See KPMG, 988 S.W.2d at 750. We find no response to Cel-ana Roofing's

traditional motion for summary judgment in the appellate record. Neither did the Hilmys

raise the defenses in their response to Cel-ana Roofing's no-evidence motion for summary

judgment. Thus, the Hilmys did not meet their burden to both assert the defenses in a

response and to support it with summary judgment evidence. See id.

      Moreover, because the Hilmys did not expressly present to the trial court the

argument that they now make on appeal—that they are entitled to the estoppel effect of

fraudulent concealment and willful misconduct and that the summary judgment evidence

of such actions defeats the summary judgment—we cannot now consider its argument as

grounds to reverse the trial court's judgment. See TEX . R. CIV . P. 166a; McConnell, 858

S.W.2d at 341; see also Mercier, 214 S.W.3d at 774. We overrule the Hilmys' sole issue

on appeal.

                                    IV. CONCLUSION

      We affirm the judgment of the trial court.


                                                      NELDA V. RODRIGUEZ
                                                      Justice

Delivered and filed the
29th day of April, 2010.



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