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

                                                 FILED
                                                                         November 19, 2009

                                     No. 09-40424                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



MARTIN VILLARREAL; SALVADOR PANTOJA; ALICIA PANTOJA;
CARMEN REYES; GRISELDA VILLARREAL; ET AL,

                                                   Plaintiffs-Appellants
v.

MG BUILDERS; FRANK ARCHITECTS, INC.; WSC, INC.,

                                                   Defendants-Appellees
v.

TRINITY TESTING LABORATORIES, INC.,

                                                   Third Party Defendant-Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                               USDC No. 5:03-cv-11


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       The Plaintiffs filed suit for damages arising from the faulty construction
of their homes under numerous theories of Texas state law. The district court


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 09-40424

dismissed each of the claims against M.G. Builders either for failure to state a
claim upon which relief may be granted or on summary judgment. The Plaintiffs
argue on appeal that genuine issues of material fact exist. We AFFIRM.
      In 1997, the city of Laredo, Texas and the Laredo Affordable Housing
Corporation (“the City Defendants”) received federal funds for the construction
of a new subdivision. The single-family homes were reserved for low-income
families. The City Defendants hired a number of contractors and subcontractors
to assist with the project, including Defendant M.G. Builders.          When the
subdivision was complete, several individuals – some of whom are the Plaintiffs
–   purchased homes directly from the City Defendants.            No contractual
relationship existed between M.G. Builders and these purchasers.
      Sometime after construction terminated in 1999, it became apparent that
the Plaintiffs’ homes were defectively built. In 2002, the Plaintiffs filed suit
against the City Defendants, M.G. Builders, and the other subcontractors
involved in the project. They alleged violations of the Texas Deceptive Trade
Practices Act (“DTPA”), fraud in a real estate transaction, violations of the Texas
Real Estate Construction Act, negligence and gross negligence, negligent
misrepresentation, breach of contract, and civil conspiracy.       M.G. Builders
moved for dismissal or summary judgment on each allegation. The district judge
ruled from the bench that the claims be dismissed either for failure to state a
claim or on summary judgment. However, before the court’s order could be
entered, the case was stayed due to the bankruptcy of defendant Trinity Testing.
      When the stay was lifted in 2007, the district court reconsidered M.G.
Builders’ motions, and re-affirmed the court’s prior ruling. On appeal, the
Plaintiffs allege generally that the district court erred when it did not find an
implied warranty of workmanlike conduct despite the absence of privity of
contract, that a genuine issue of material fact existed as to whether M.G.



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Builders violated the DTPA, and that the district court abused its discretion by
denying their motion for a continuance prior to the original trial date.
       We review de novo a district court’s grant of both summary judgment and
a motion to dismiss pursuant to Rule 12(b)(6). Noble Energy, Inc. v. Bituminous
Cas. Co., 529 F.3d 642, 645 (5th Cir. 2008); True v. Robles, 571 F.3d 412, 417
(5th Cir. 2009).
       The Plaintiffs first allege that a residential homebuilder impliedly
warrants that the house will be constructed in a good and workmanlike manner.
Humber v. Morton, 426 S.W.2d 554, 561 (Tex. 1968). However, in the single
authority cited for the existence of implied warranties owed by a homebuilder,
a direct contract existed between the builder – who was also the seller – and the
purchaser. Id. No such contractual relationship exists here.1
       Second, Plaintiffs contend that an implied warranty to perform services
to repair or modify existing tangible property in a workmanlike manner may
arise under common law if mandated by public policy. See Rocky Mountain
Helicopters, Inc. v. Lubbock County Hosp. Dist., 987 S.W.2d 50, 53 (Tex. 1998).
While this recitation of the law is accurate, such warranties are only appropriate
in agreements for repair to existing property, not for new construction. See id.
Even if M.G. Builders’ actions could be construed as “repairs,” the imposition of
an implied warranty is an extraordinary remedy for plaintiffs who cannot
otherwise find redress. Id. Here, Plaintiffs concede that they have successfully
settled with the City Defendants.
       The district court also dismissed the DTPA claim as barred by the statute
of limitations. No competent evidence to the contrary is offered. M.G. Builders’



       1
         Questions concerning whether implied warranties of construction in a good and
workmanlike manner are owed to subsequent purchasers, and whether M.G. Builders was a
contractor or a subcontractor, are insufficiently posed and supported by authority in the trial
court, on appeal, or both. We do not consider those points.

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affidavit was self-serving. That reality does not create a genuine issue for trial;
only contradictory evidence would do that, and none exists in this record. See
Anderson v. Liberty Lobby, 477 U.S. 242, 256-57 (1986).
      Finally, the district court did not abuse its discretion when it denied the
Plaintiffs’ motion for a continuance prior to the original trial date. We review
the denial of a motion for relief under Federal Rule of Civil Procedure 56(f) for
an abuse of discretion. Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156,
161 (5th Cir. 2006). The Plaintiffs’ counsel asserted that further discovery was
needed without stating with particularity why additional discovery was
necessary nor how it would generate genuine issues of material fact. We have
held that a non-moving party may not rely on vague assertions regarding the
need for additional discovery. Culwell v. City of Fort Worth, 468 F.3d 868, 873
(5th Cir. 2006).
      Because no genuine issues of material fact exist, the district court properly
disposed of the Plaintiffs’ claims. Consequently, we AFFIRM.




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