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Click here for the full text of this decision FACTS:This dispute is over equipment manufactured by Tri-Flo International Inc. that Conquest Drilling Fluids Inc., says never worked. Tri-Flo executed a contract to build an oilfield-related piece of equipment called an encapsulation unit. One of the buyers was Coastal Mud Inc., acting as a funding entity for Conquest, the eventual owner. Coastal sold the equipment to Conquest. Coastal’s litigation rights regarding the unit were assigned to Conquest. Alleging defects in the equipment, Conquest sued Tri-Flo. The trial court granted summary judgment against Conquest on its DTPA, negligence and negligent misrepresentation causes of action. A jury returned a verdict for Conquest on breach of contract and breach of warranty claims, and awarded Conquest $553,172.48 in damages and $95,000 in attorney’s fees. The trial court granted Tri-Flo’s JNOV motion in part, and signed a judgment in favor of Conquest for $188,851 in actual damages on the breach of express warranty claim and $62,500 in attorney’s fees. Both parties appealed. HOLDING:The court affirms the trial court’s rulings on the negligence and negligent misrepresentation claims, and on the �17.46(b)(2),(5) and (7) DTPA claims. The court reverses the judgment in all other respects and remands for a new trial. Tri-Flo contends Conquest’s breach of contract and breach of warranty claims are barred by the two-year limitations provision contained in the contract. A breach of contract claim accrues when the contract is breached, e.g., when the seller fails to make delivery of the goods. Resolving all reasonable inferences in Conquest’s favor and ignoring all other evidence to the contrary, payment would not necessarily mean there was tender of delivery or acceptance. Under the Business and Commerce Code, “[t]ender of delivery” requires the seller to “put and hold conforming goods at the buyer’s disposition” and “tender of delivery is a condition to the buyer’s duty to accept the goods.” Texas Business and Commerce Code ��2.503(a), 2.507. Tri-Flo did not conclusively establish its affirmative defense of limitations and is not entitled to judgment as a matter of law. If an issue is properly pleaded and is supported by some evidence, a party is entitled to have controlling fact questions submitted to the jury. Triplex Communications Inc. v. Riley, 900 S.W.2d 716 (Tex. 1995). If and when tender of delivery occurred are disputed issues on which there is conflicting testimony. The instruction tracts the statutory requirements of “tender of delivery” in the Business and Commerce Code, and the jury’s finding in response to the question would determine a controlling fact issue. Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162 (Tex. 2002). The court concludes the trial court erred in refusing to submit a jury question on delivery. The pleadings and the evidence support the submission of a jury question on delivery. The date of delivery bears directly on Tri-Flo’s limitations defense. The court holds the error requires reversal and a new trial. Conquest included in its DTPA “laundry list” two claims that exist independently of Tri-Flo’s duties under the contract. Specifically, Conquest pleaded that Tri-Flo advertised goods or services with the intent not to sell them as advertised. Conquest further pleaded that Tri-Flo failed “to disclose information concerning goods or services which was known at the time of transaction [and] 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[.]” The legal duty not to improperly procure a contract is separate and independent from the duties established by the contract itself. Conquest’s allegations concerning violations under �17.46(b)(9) and, (24) involve deceptive conduct that Conquest says was intended to induce it to enter into a transaction it otherwise would not have entered. The court holds Conquest’s DTPA claims under subsections (9) and (24) do not allege merely breach of contract, and the trial court erred in granting summary judgment on those pleadings. Conquest also contends the trial judge erred in granting summary judgment against Conquest on its negligence and negligent misrepresentation causes of action. Tri-Flo argues that Conquest’s allegations, even if taken as true, can only be characterized as breach of contract claims. We agree. Conquest pleaded that Tri-Flo “negligently [sold] a substandard product which did not meet or exceed even minimal industry standards, codes, and quality control standards” and failed “to provide Plaintiffs and others with a viable product which would meet or exceed the representations made by the Defendants[.]” Conquest’s negligence and negligent misrepresentation claims are in substance breach of contract claims relabeled as torts. The trial court was correct in granting summary judgment on those claims. OPINION:Gaultney, J.; McKeithen, C.J., Burgess and Gaultney, JJ.

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