Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Banks and Felicia Winn bought their home from Martin Homebuilders in March 1992. As early as 1994, according to the Winns’ deposition testimonies, they began noticing cracks in the driveway and shifts in the doors and windows, to the point that some of them would no longer open or close. They also noticed cracks in the sheetrock. The Winns contacted Martin, who told them that the damages was due to the normal settling of the house. The Winns filed a complaint under the home warranty in 1994. In 1997, the Winns noticed further cracking around the house and further shifting of doors, windows, cabinets, mortar and tile. The Winns filed suit against Martin on Sept. 9, 2001, alleging violations of the DTPA and for breach of warranty and negligence. After taking the Winns’ depositions, Martin filed for summary judgment on the grounds of the two-year statute of limitations for DTPA and negligence claims, and the four-year limitations period for the warranty claims. The Winns countered that the 10-year statute of limitations in Civil Practice & Remedies Code �16.009 applied. A visiting judge first heard the motion, and he requested the parties file briefs. The sitting judge ruled on the motion and the briefs on Aug. 20, 2002, denying summary judgment. Martin filed for rehearing with oral arguments on Sept. 13, and the judge held another hearing on Sept. 26. This time, the trial court granted the motion for summary judgment. HOLDING:Affirmed. The court first dismisses the Winns’ complaint that they were not afforded the 21-day notice before the rehearing. Though Texas Rule of Civil Procedure 166a(c) does require 21-day advance notice for a summary judgment hearing, the court stresses that this was a second hearing on the motion. The Winns had ample notice of the first hearing and had filed briefs. In other words, the Winns were afforded, and exercised, full opportunity to respond on the merits of Martin’s motions. The court dismisses the Winns’ second issue because it is not the same one they raised to the trial court. At trial, the Winns argued they were entitled to the 10-year limitations period of �16.009, but they do not cite the same statute on appeal. Instead, the contend that Martin’s willful misconduct and concealment raised an exception to the statute of limitations. “Our consideration of the theory the Winns’ now argue in their second issue is precluded because it was not expressly presented to the trial court.” Even if they had properly preserved their argument, the court says it would still find summary judgment proper. In a fraudulent concealment case, the statute of limitations is tolled until the plaintiff has knowledge of facts, conditions or circumstances that would lead a reasonable person to make an inquiry that would, if pursued, lead to discovery of the concealed cause of action. Based on the Winns’ depositions, the court finds evidence that they had such knowledge probably in 1994, but no later than 1995, and this started the statute of limitations running. Consequently, the Winns’ suit, filed in 2001, was untimely. OPINION:Campbell, J.; Johnson, C.J., and Reavis and Campbell, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.