     Case: 19-40333      Document: 00515206065         Page: 1    Date Filed: 11/20/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                    No. 19-40333                        November 20, 2019
                                  Summary Calendar
                                                                           Lyle W. Cayce
                                                                                Clerk
TINA BREWER; R. WRIGHT BREWER,

              Plaintiffs - Appellants

v.

LUTRON ELECTRONICS COMPANY, INCORPORATED,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 2:18-CV-170


Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       In September 2013, Tina and R. Wright Brewer installed a home
automation system 1 that included parts manufactured by Lutron Electronics
Company, Incorporated at their new home in Texas. According to the Brewers,



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
       1 The Brewers’ system “included equipment for a media room, televisions mounted
throughout the house, audio and video equipment installed throughout the house, lighting
controls, HVAC controls, wired and wireless network equipment, and a security system.”
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                                 No. 19-40333
the system failed to improve their home and lives as promised; instead, the
system was plagued by problems that prompted numerous corrections,
attempted corrections, and repairs over the next four years. It was not until
2018 that the Brewers sued Lutron for negligent misrepresentation and
negligent undertaking. It should not have been surprising that the district
court dismissed the Brewers’ claims as barred by the two-year statute of
limitations. After considering the Brewers’ arguments that the district court
should have excepted this case from the two-year statute of limitations, we
affirm the dismissal.
                                       I.
      When the Brewers began construction on a new home in 2013, they hired
Dominant Sight & Sound to install a home automation system. The system
included features manufactured by Lutron.        The Brewers allege that two
Dominant employees participated in a training course, called B.U.R.S.T.,
offered by Lutron that had certified them to install the Lutron RadioRA
product. But that course did not cover the Lutron Radio RA 2 product of the
Lutron Homeworks System product. Even though no Dominant employee
completed training for the Radio RA 2, Lutron certified Dominant as a
qualified service provider for the Radio RA 2.
      Dominant installed the system, but the Brewers soon began to
experience multitudinous problems. Despite Dominant’s efforts to correct and
repair the system, the problems would not go away. In November 2013, the
Brewers say that Lutron sent a local representative to their home to advise
Dominant on correcting failures of a ceiling fan. The Lutron representative
inspected the system and confirmed that the Lutron components were correct
and that they were correctly installed by Dominant. The Brewers claim that
they relied on this inspection by the Lutron representative “in their decision to
continue with the installation and accept the system as installed.”
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                                 No. 19-40333
      Still, the problems persisted. So, in early 2017, the Brewers hired a
third-party technician to correct the system. According to the third-party
technician, the Brewers’ system was originally designed to follow the
specifications for the Lutron Homeworks System; but he found a different
system—the Lutron Radio RA 2 using a GRAFIK Eye lighting system—was
improperly installed. While the third-party technician made some corrections
to the Brewers’ system, the problems lingered. Later that year, the Brewers
hired another outside expert, who contacted a Lutron technical support
representative.   The Brewers allege that this Lutron representative now
advised that the system was not installed in accordance with Lutron’s
standards and recommended that the entire system be removed and replaced
with the Lutron Homeworks system at a cost of $250,000.
      In April 2018, the Brewers filed this suit against Lutron. In their second
amended complaint, they assert two causes of action: negligent undertaking
and negligent misrepresentation. Lutron moved to dismiss for failure to state
a claim on grounds the two-year statute of limitations for bringing the suit had
expired. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003(a). The Brewers
responded that the Texas discovery rule applied to their claims, and therefore
the statute of limitations did not begin to run until 2017, when the Brewers’
technician inspected the system. The district court adopted the report and
recommendation of the magistrate judge dismissing the Brewers’ claims with
prejudice. The court held that the discovery rule did not apply to the Brewers’
obvious injury and, alternatively, that even if the discovery rule did apply, the
statute of limitations would have begun to run in November 2013 when they
became aware of problems with the system. The Brewers filed a motion for
reconsideration, which the district court denied. The Brewers then timely
appealed.


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                                   No. 19-40333
                                         II.
      Our review of a district court’s grant of a motion to dismiss for failure to
state a claim is de novo. See Jones v. Alcoa, Inc., 339 F.3d 359, 362 (5th Cir.
2003). We view the allegations contained in the complaint as true and view
the facts in the light most favorable to the plaintiff. Id. “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
                                         A.
      The Brewers argue that the district court erred by, first, holding that the
discovery rule did not apply to their injury and, second, by alternatively
holding that, assuming the discovery rule did apply, their cause of action
accrued in November 2013 when problems with their system were obvious to
the Brewers.
      Normally, under Texas law, a cause of action accrues two years after an
injury occurs. See Comput. Assocs. Int’l v. Altai, Inc., 918 S.W.2d 453, 458 (Tex.
1996). The discovery rule is an exception to that general rule. See TIG Ins.
Co. v. Aon Re, Inc., 521 F.3d 351, 357 (5th Cir. 2008). For the discovery rule to
apply, “the nature of the injury must be inherently undiscoverable and that
the injury itself must be objectively verifiable.” HECI Expl. Co. v. Neel, 982
S.W.2d 881, 886 (Tex. 1998). When the discovery rule does apply, it “defer[s]
accrual of a cause of action until the plaintiff knew or, exercising reasonable
diligence, should have known of the facts giving rise to a cause of action.” Id.
      We need not determine whether the discovery rule applies to the
Brewers’ injury because, if we assume it applies, the Brewers’ causes of action
accrued, at the latest, in November 2013 and had run by November 2015. They
did not file this action until April 2018. By November 2013, according to the
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                                     No. 19-40333
allegations in the Brewers’ second amended complaint, they had already
experienced “intermittent problems with the System” including “slow or
intermittent performance in the audio/video system, alarms mistakenly sent
by the security system to the local police, malfunctioning equipment,
inoperable remote controls, electrical noise in the audio system.” And repair
attempts were “at best transient, and the problems would reappear in the same
or different subsystem.” Thus, by November 2013, the Brewers knew all the
facts giving rise to their cause of action: their home automation system was
not working properly, Lutron parts were used in the system, and they had
relied on Lutron’s inspection of the system and certification of Dominant as an
installer.   Yet the Brewers still waited four years to hire a third-party
technician to inspect the system and nearly five years to file this suit. 2 Their
claims are therefore barred by Texas’s two-year statute of limitations.
                                            B.
      The Brewers also argue that the district court erred by not converting
Lutron’s motion to dismiss to a motion for summary judgment or, alternatively,
by not granting the Brewers’ leave to amend their complaint. See Fed. R. Civ.
P. 12(d). The Brewers contend that the date of accrual in this case could only
have been determined by looking to material outside the pleadings. After the
magistrate judge recommended dismissal of the Brewers’ complaint, the
Brewers filed objections to the district court judge and submitted evidence
outside the pleadings. One item of evidence was an affidavit from R. Wright


      2  The Brewers argue that Lutron should be estopped from seeking dismissal under the
statute of limitations because of promises that repair work would continue beyond November
2013. The Brewers do not allege, however, that Lutron made a false promise to repair the
system. See Gibson v. John D. Campbell & Co., 624 S.W.2d 728, 733 (Tex. App.–Fort Worth
1981, no writ) (“[T]he party seeking to rely upon the statute of limitation must have been
guilty of deception or a violation of a duty toward the other party before estoppel will be
applicable.”). According to the Brewers’ allegations, all repair work was performed by
Dominant.

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                                 No. 19-40333
Brewer stating that Dominant had represented that issues with the
installation were normal and would be fixed. A second was a declaration from
the Brewers’ expert opining that reasonable homeowners could not discover
the type of problems the Brewers suffered until years after installation had
begun.
      The district court did not err by refusing to convert Lutron’s Rule 12(b)(6)
motion to a motion for summary judgment or allowing a third amendment of
the Brewers’ complaint. The evidence submitted by the Brewers does not
negate the fact that, as we have already noted, the Brewers knew of all the
facts necessary to bring their claim by November 2013.            Nothing in the
Brewers’ extra-pleading material contradicts their own allegation that in 2013
they experienced “intermittent problems with the System” and Dominant’s
“‘repairs’ were at best transient, and the problems would reappear in the same
or different subsystem.” Thus, even if the discovery rule applies to the type of
home automation system installed by the Brewers, the Brewers did, as alleged
in their complaint, discover their injury in November 2013. Conversion to a
motion for summary judgment or permitting a third amendment of the
complaint would not have cured this defect.
                                       III.
      Even assuming the discovery rule applies, the statute of limitations on
the Brewers’ claims ran in November 2015, more two years before they filed
this suit. The judgment of the district court is
                                                                      AFFIRMED.




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