Opinion
No. 01-08-00550-CV
Opinion issued April 21, 2011.
On Appeal from the 152nd District Court, Harris County, Texas, Trial Court Case No. 2001-62472.
Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.
MEMORANDUM OPINION
This is the second appeal arising from this residential construction-defect dispute. This Court previously affirmed summary judgment as to several of the plaintiffs' claims as limitations barred. Hixon v. Tyco Int'l, Ltd, No. 01-04-01109-CV, 2006 WL 3095326, at *10 (Tex. App.-Houston [1st Dist.] Oct. 31, 2006, no pet.). We reversed and remanded, however, the portion of the trial court's summary judgment resolving claims that were not addressed in the defendants' motions for summary judgment. Id. at *13. The trial court then granted summary judgment as to both the remanded claims and some additional claims brought by the plaintiffs following remand. The plaintiffs again appealed. Because the trial court's summary judgments did not address all pending claims against all remaining defendants, the Court abated this appeal to allow the trial court to consider the plaintiffs' motion to sever claims against certain defendants. The trial court has now granted that motion to sever, rendering the summary judgment judgments that are the subject of this appeal final and appealable.
We affirm the trial court's grant of summary judgment on the Hixons' breach-of-contract and fraud-by-nondisclosure claims against defendants Pedigo Services, Inc., Tyco International Ltd. d/b/a Simplex Products, and K2, Inc. d/b/a Simplex Products. We reverse and remand the trial court's summary judgment on the Hixons' (1) breach-of-warranty and negligent undertaking claims against Pedigo, Tyco and K2, and (2) strict tort product liability, negligent product design and negligent distribution claims against Tyco and K2. We also remand to the trial court the Hixons' claim that their suit against K2 relates back to the filing of their suit against Tyco under misnomer and misidentification theories for consideration by that court in the first instance, if necessary, on a more developed record.
BACKGROUND
In 1994, plaintiffs Eric and Beverly Hixon hired Ausmus Homes, Inc. to build a house. The house was designed to have exterior walls covered in artificial stucco, referred to as "EIFS cladding" or "Finestone," that was manufactured by defendant K2, Inc. Ausmus hired defendant Arturo Perez to install the EIFS cladding and hired defendant Pedigo Services, Inc. to install the roof.
Hixons' allegations, defendant Tyco International acquired K2's Finestone division after the EIFA cladding was installed on their house. [ Id.]
Leaks attributable to either the roof or the EIFS cladding caused water to seep into the house beginning in 1995. The leaks dramatically worsened in mid-1997, resulting in separation of the EIFS cladding from the house on the East side, as well as rotted studs and plywood sheathing on that same side. Pedigo and either K2 or Tyco repaired these problems in 1998 and 1999. Pedigo also contracted for defendant Martin Spears d/b/a MLS Services to perform demolition and repair of the EIFS system on the Hixons' home in 1999.
According to the Hixons, at that time a K2 representative told them that there were no additional problems. In February and March 2000, new leaks occurred in areas of the house that had not previously leaked. Pedigo attempted several repairs, unsuccessfully, and then refused to perform any additional repairs.
A. Prior Proceedings
A 2001 engineering report commissioned by the Hixons identified several defects related to the installation of the roof and the EIFS cladding. The Hixons sued Tyco, Pedigo, Perez, and Martin Spears on December 1, 2001, and added claims against Tyco on June 28, 2002. The Hixons contended that all the defendants were negligent in several respects. Theories of liability against Pedigo included negligent performance of an undertaking, breach of common law express and implied warranties under the Deceptive Trade Practices-Consumer Protection Act (DTPA), fraudulent concealment of defects under the DTPA, and violations of the Residential Construction Liability Act. Theories against Tyco and K2 included product liability, strict tort liability, negligent product design, negligent product distribution, breach of implied and express warranties, common law misrepresentation, and misrepresentation and fraud under the DTPA.
Pedigo, Tyco and K2 filed motions for summary judgment in 2002 and 2004, which were granted by the trial court in 2004. The trial court severed the claims against those three defendants, rendering the summary judgments final. The Hixons appealed, challenging the trial court's determination that their claims were time barred.
On appeal, this Court held the "summary judgment evidence compels the following conclusions: (1) the Hixons knew, that is, discovered, in mid-1997, that there were significant water-leakage problems with the house; and (2) the knowledge they acquired was sufficient, as a matter of law, to end the application of the discovery rule and to constitute knowledge of potential claims. 2006 WL 3095326, at *7. Accordingly, we concluded that "application of the discovery rule ended for the Hixons in mid-1997, thus triggering all applicable statutes of limitations," such that "the two-year statute of limitations expired in mid-1999 and the four-year statute of limitations expired in mid-2001." 2006 WL 3095326, at *10.
Because the date of accrual as to several claims not addressed in the defendants' motions for summary judgment were not established as a matter of law, however, the Court reversed and remanded the summary judgments on those claims. Specifically, as to Pedigo, the Court remanded the Hixons' DTPA warranty and negligent undertaking claims. Id. at 13. As to K2 and Tyco, the Court remanded the Hixons' claims for product liability, strict tort liability, negligent product design, negligent product distribution, breach of implied and express warranties, and misrepresentation. Id. B. Post-Remand Proceedings
Following remand, the trial court consolidated the proceedings into the pending suit against Perez and Spears. On February 5, 2008, the Hixons filed a Fifth Amended Petition. Relevant to this appeal, they asserted that (1) Pedigo, Tyco and K2, jointly and severally, "breached their contractual relationship" with the Hixons by failing to remedy all of the known problems that existed with the Hixons' home when it was repaired in 1999, (2) in 1999, Pedigo, Tyco, and K2 negligently undertook repairs to the Hixons' home, (3) Pedigo, Tyco, and K2 breached common law express and implied warranties, (4) Pedigo, Tyco and K2 committed fraud through nondisclosure, (5) Tyco and K2 are strictly liable for the faulty design, manufacturing, marketing, and placement of the EIFS cladding into the stream of commerce, (6) Tyco and K2 were negligent in the design, manufacture, and marketing of the EIFS cladding and (7) K2 and Tyco were negligent in distributing the EIFS cladding.
Pedigo, K2, and Tyco filed motions for summary judgment as to each of these claims. They argued that (1) Hixons' remanded claims are time barred, (2) the claims the Hixons added since remand are both time barred and outside the scope the Court's limited remand, and (3) some of the claims the Hixons added since remand were already necessarily disposed of in the first summary judgments affirmed by this Court.
On April 4, 2008, the trial court granted summary judgment as to each claim against Pedigo, K2, and Tyco. It later severed these claims from the pending claims against Perez and Spears, rendering them final and appealable.
This Appeal
In their first four issues, the Hixons argue that the trial court erred by granting summary judgment in favor of K2, Tyco, and Pedigo. In their fifth issue, they contend that the trial court abused its discretion in denying their motion for new trial and by not ruling on their objections to the Pedigo's summary judgment evidence. Finally, in their sixth issue, the Hixons assert that the trial court committed error by allegedly dismissing their claims against Perez and Spears in the order granting summary judgment in Pedigo's favor. This sixth issue has been resolved by the trial court's severance of the claims against Perez and Spears, which remain pending in the trial court. We thus need only address the Hixons' first five issues.
A. Standard of Review
We review de novo the trial court's ruling on a motion for summary judgment. Mann Frankfort Stein Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). In a traditional motion for summary judgment, the movant must establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiff's cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff's cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). To determine if the nonmovant raised a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). When, as here, the trial court's summary judgment order does not state the basis for the trial court's decision, we must uphold the order if any of the theories advanced in the motion is meritorious. Provident Life Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
B. Scope of this Court's Remand
Tyco, K2, and Pedigo argued, as a ground for summary judgment, that the new claims added by the Hixons post-remand were improper because these claims are outside the scope of this Court's limited remand from the prior appeal. In their first issue here, the Hixons argue that the "trial court erred in granting K2, Tyco and Pedigo's summary judgment motions based upon an argument that the Court of Appeals' October 31, 2006, opinion limited the Hixons' right to assert new causes of action beyond the causes of action reversed and remanded by the Court of Appeals."
"When this court remands a case and limits a subsequent trial to a particular issue, the trial court is restricted to a determination of that particular issue." Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986). But, "when an appellate court remands a case for further proceedings and the mandate is not limited by specific instructions, the effect is to remand the case to the lower court for a new trial on all issues of fact, and the case is reopened in its entirety." Price v. Gulf Atl. Life Ins. Co., 621 S.W.2d 185, 187 (Tex. Civ. App — Texarkana 1981, writ ref'd n.r.e.). "For a reversal to be limited to particular fact issues, it must clearly appear from the decision that it was so intended." Id.
This Court's prior opinion affirmed the trial court's summary judgment as to some claims and remanded as to others. It did not, however, contain any language limiting the Hixons' ability to add claims so long as those claims had not already been resolved by the portion of the trial court's summary judgment that this Court affirmed. It states:
We reverse the portion of the trial court's final judgment that dismisses with prejudice the Hixons' DTPA warranty and negligent undertaking claims against Pedigo and that dismisses with prejudice the Hixons' claims against K2 and Tyco for products liability, strict tort liability, negligent product design; negligent product distribution, breach of implied and express warranties, and misrepresentation. We affirm the judgment of the trial court in all other respects.
Hixon, 2006 WL 3095326, at *13. The mandate likewise did not contain any limiting language:
[I]t is the opinion of this Court that there was reversible error in the portion of the judgment dismissing the appellants' DTPA warranty claims and negligent undertaking claims, which were raised in their third amended petition, against Pedigo Services, Inc. It is further the opinion of this Court that there was reversible error in the portion of the judgment dismissing the appellants' products liability, strict tort liability, negligent product design, negligent product distribution, breach of implied and express warranties, and misrepresentation claims, which were asserted in their third amended petition, against K2, Inc. and Tyco International, Ltd. It is, therefore, CONSIDERED, ADJUDGED, and ORDERED that the judgment of the court below, as to the claims referenced hereinabove, be reversed and remanded for further proceedings.
It is further the opinion of the Court that there was no reversible error in the remaining portions of the judgment. It is, therefore, CONSIDERED, ADJUDGED, and ORDERED that the remaining portions of the judgment of the court below, except as hereinabove reversed and remanded, be, and are in all things, affirmed.
Because our opinion and mandate did not include any language limiting the Hixons to their previously pleaded claims, the Hixons were free to amend their pleadings to add new claims or parties, except as to those claims on which we rendered summary judgment in the defendants' favor. Simulis, L.L.C. v. Gen. Elec. Capital Corp., ___ S.W.3d ___, 2011 WL 505334, at *4 (Tex. App.-Houston [14th Dist.] Feb. 15, 2011, no pet.). We thus sustain the Hixons' first issue. The scope of the remand was, however, but one of the defendants' arguments in support of summary judgment. If any of the defendants' alternative arguments support the judgment, we must affirm. Knott, 128 S.W.3d at 216.
C. The Hixons' Claims Subject to a Four-Year Statute of Limitations
In the Hixons' second issue, they assert the "trial court erred in granting K2, Tyco and Pedigo's summary judgment motions based upon the Hixons' breach of contract, breach of express or implied warranty and fraud by nondisclosure claims because they were barred by limitations."
1. Breach of Contract
The Hixons' Fifth Amended Petition filed January 18, 2008 alleges that "a contractual relationship was created with Defendant Pedigo and Defendants K2 [and Tyco] when the Defendants agreed to repair Plaintiffs' home in 1999." They claim that "Defendants K2[, Tyco,] and Pedigo, after inspecting Plaintiffs' home for evidence of damage from water intrusion, offered to repair the home" and that the Hixons "exercised forbearance in bringing suit against Defendants in return for the promise to repair all of the damage to Plaintiffs' home." Pedigo, Tyco, and K2 breached this agreement, the Hixons assert, when they "failed to remedy all of the known problems that existed with Plaintiffs' home, when Plaintiffs' home was repaired in 1999."
Pedigo's motion for summary judgment asserts that these claims, although couched by the Hixons as related to the "allegedly faulty repairs made in 1999," were already rejected as time barred by this Court in our prior opinion. K2 and Tyco likewise argued that this Court's prior analysis of the effect of the 1999 inspections and repairs forecloses this new claim. We agree.
In our prior opinion, we held that the repairs made by the defendants in 1998 and 1999 "do not negate what the Hixons knew in mid-1997" about the "numerous" problems causing leaking water in the house. Hixon, 2006 WL 3095326, at *8. We also held these repairs "do not toll the discovery rule for plaintiffs and, thus, do not extend limitations." Id. (citing PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 94 nn. 81-82 (Tex. 2004) and Richker v. United Gas Corp., 436 S.W.2d 215, 218-19 (Tex. App.-Houston [1st Dist.] 1968, writ ref'd n.r.e.)).
Although the Hixons now contend a new and independent "breach of contract" claim arose in 1999 based upon "faulty repairs and faulty assurances," their pleading does not allege any independent injury or damage flowed from the performance of those repairs. Rather, they complain only that, based on the defendants' promise to perform repairs, they were induced to not timely sue the defendants. They do not seek separate damages arising from any action by the defendants in 1999, but instead seek to toll limitations because they allegedly "exercised forbearance in bringing suit against the Defendants in return for the promise to repair all the damage to Plaintiffs' home."
In our prior opinion, we rejected that same theory couched as fraudulent concealment, fraud, and misrepresentation claims. As the factual basis for those claims, the Hixons contended that "they were assured, after Pedigo and K2 and Tyco made repairs to the house in 1998 and 1999, that there were no remaining problems with the house." Hixon, 2006 WL 3095326, at *9. This Court noted the lack of competent summary judgment evidence that a representative of Pedigo, K2, or Tyco ever said the problems were fixed, and that "belief and subjective thoughts are no evidence of false assurances, even if false assurances can toll limitations." Id. (citing PPG Indus., Inc., 146 S.W.3d at 96).
In responding to the defendants' motions for summary judgment, the Hixons point to the supreme court's observation in PPG Industries that while a seller's repair efforts do not extend the limitations period for breach of warranty claims, the plaintiff does have an independent DTPA claim based upon additional actionable conduct:
Faulty repairs or false assurances of repair are already independently actionable under current law — either for breach of the implied warranty applicable to repair services, or as DTPA laundry-list violations. Accordingly, consumers who discover defects and ask a seller to repair them do not need to toll limitations on the initial warranty claim, as they have a new limitations period relating to the repairs.
PPG Indus., Inc., 146 S.W.3d at 95-96 (footnotes omitted). The Hixons then cite Dallas Power Light Co. v. Westinghouse Elec. Corp., for the proposition that failure to make repairs is actionable as a breach of contract. 855 F.2d 203, 208 (5th Cir. 1988).
While PPG stands for the proposition that a DTPA warranty or laundry-list violation claim might lie from faulty repairs of earlier work, it does not support the Hixons' argument that a new breach-of-contract claim arises under these circumstances that operate to toll limitations for their original breach-of-contract claim. The Hixons' breach-of-contract claim is not an independent claim seeking damages flowing from the defendants' 1998-1999 repair efforts, but instead a complaint about their failure to identify and remedy the original problems that the Hixons have known about since at least 1997. This Court has previously held the Hixons' claims flowing from the original work to be barred by limitations, and that the repair work performed in 1998 and 1999 did not operate to extend the limitations period for that claim. Hixon, 2006 WL 3095326, at *8. By recasting the same facts into a new breach-of-contract claim for failure to identify and repair all the existing damage to the Hixons' home, the Hixons seek to circumvent this Court's prior holding that, by mid-1997, the Hixons knew of significant water-leakage problems with the house such that they were on notice of any potential claims. We hold that the breach-of-contract claim, flowing from the original 1995 construction of the house, would have accrued in mid-1997 at the latest, with limitations running mid-2000. The Hixons' breach-of-contract claim, brought post-remand in 2008, is time-barred. The trial court's summary judgment on that claim is affirmed.
2. Fraud by Nondisclosure
The Hixons' petition further alleges that Pedigo committed "fraud by nondisclosure" by failing "to inform Plaintiffs that the reason for the leaks at the Hixons' home was due, in part, to the failure of the roof that Defendant Pedigo had installed." Thus, the Hixons urge, "the statute of limitations on their claim against Defendant Pedigo is tolled because Defendant Pedigo had actual knowledge or should have known that the roofing system on Plaintiffs' home was not installed properly."
The Hixons assert K2 and Tyco committed "fraud by nondisclosure" when their agent, after using a moisture meter when inspecting the Hixons' house in 1998, indicated that "the only areas that he found to be problem areas were on the east wall of the Plaintiffs' home." According to the Hixons, he created a false impression by making a partial disclosure about problem areas in their house and not disclosing the whole truth.
The Hixons acknowledge that this Court previously rejected their argument that fraudulent concealment operated to equitably estop the defendants from asserting a limitations defense. They assert, however, that "application of the equitable doctrine [of] fraudulent concealment to the claims asserted in Plaintiffs' Fifth Amended Original Petition, which were not addressed by summary judgment, and to the new claims asserted in Plaintiffs' Fifth Amended Original Petition, is not prohibited or limited by" this Court's prior opinion. We disagree.
In our prior opinion, we addressed these same assertions regarding the defendants' alleged fraudulent failure to disclose to the Hixons the problems with their property. Hixon, 2006 WL 3095326, at *9. There we held that the Hixons had not presented any competent summary judgment evidence "that any defendant in fact had knowledge that a wrong occurred and the requisite fixed purpose to conceal it and thus suppress the truth." Id. We further concluded "as a matter of law, that Pedigo and K2 and Tyco had no duty of disclosure." Id.
In their response to Pedigo's motion for summary judgment directed at Plaintiffs' Fifth Amended Petition, the Hixons point to deposition testimony of Pedigo's employee explaining that the various defendants met and, although they did not accept responsibility for the problems with the Hixons' house, they "were amenable to try to correct . . . and try to remediate the situation and get it done." The Hixons claim that testimony "creates a genuine issue of material fact for jury consideration, that a plan or design existed between Defendant Pedigo, K2 and Tyco, and Ausmus Homes to avoid litigation by making minimal repairs to the Hixons' home, and fraudulently concealing from the Hixons the true condition of their home." The Hixons further pointed to their expert's conclusion that the sheet metal flashing "was originally constructed in a manner that incorporated extremely poor design and workmanship and resulted in numerous defects," and caused the Hixons' roofing system to perform "below recognized industry standards." Even if the Hixons' fraud-by-nondisclosure claim were not foreclosed by our prior disposition of their fraudulent concealment claim, this evidence fails to raise a fact issue on a fraud-by-nondisclosure theory.
In response to K2's and Tyco's motion for summary judgment directed at Plaintiffs' Fifth Amended Petition, the Hixons argue that the defendants "conduct and erroneous moisture readings conveyed a false impression to the Hixons." We previously addressed this contention, concluding that "a failure to find water-leakage problems does not equate, as a matter of law, to an assurance that there are no other water-leakage problems." Id. The trial court's summary judgment on the Hixons' fraud-by-nondisclosure theories was proper.
3. Breach of Warranty
The Hixons' Fifth Amended Petition asserts the defendants breached the following warranties: (1) a oral warranty that the EIFS cladding would "perform its required function of providing adequate protection from exterior environmental factors" for 20-25 years, (2) a twelve-year warranty on the roof installed by Pedigo, (3) a three-year warranty on roof installed by Pedigo, (4) a one-year written warranty issued by Pedigo on the 1999 repairs to the east wall of the Hixons' home, and (5) a four-year implied warranty by Pedigo for the 1999 repairs to the east wall of the Hixons' home.
Pedigo's motion for summary judgment did not address any of these warranty claims specifically. Instead, it relied generally on this Court's prior opinion to argue that limitations had necessarily run:
[T]he First Court of Appeals held that the two-year statute of limitations on any claims expired in mid-1999 and that the four-year statute of limitations — which would have governed the common-law warranty claims — expired in mid-2001. Therefore, even if Plaintiffs were able to assert a common-law warranty claim on remand . . . the claim would be barred by limitations, because the plaintiffs only filed their lawsuit in December 2001, after the expiration of the four-year statute of limitations. As such, summary judgment is warranted on the common-law warranty claims.
Tyco and K2 similarly argue in their motion for summary judgment that, based on this Court's prior opinion, any claim for breach of warranty accrued in mid-1997, meaning the four-year statute of limitations had run by mid-2001, before the Hixons filed suit.
On appeal, the Hixons assert that their warranty claims "were not barred by this Court's earlier decision that the Hixons should have discovered the problems with their home in 1997." As with their other claims, they assert that fraudulent concealment should apply to all their warranty claims. And they note that, "with the exception of the Hixons' express warranty claims against the Appellees, the Hixons' current claims allege a 1999 onset date." In response, Pedigo, Tyco, and K2 again rely on this Court's prior opinion to argue that this Court previously held that any warranty claim accrued in 1997 as a matter of law.
Reliance by Pedigo, Tyco, and K2 on this Court's prior opinion as establishing that the Hixons' breach-of-warranty claims are barred by limitations is misplaced. While we held that some of the Hixons' new claims were necessarily time-barred as a matter of law because the defendants' summary judgment arguments as to other claims applied to these new claims, Hixon, 2006 WL 3095326, at *12, we remanded other claims — including those for breach of warranty — because the accrual date of these claims was not previously established:
Pedigo's motion for traditional summary judgment did not address these claims, and their discovery-rule arguments do not encompass these alleged onset dates. Depending upon whether warranties were made in 1995 or 1999, the Hixon's warranty claims may be time barred. However, by failing to address these newly-asserted claims, Pedigo has failed to establish, as a matter of law, when the Hixons' warranty claims accrued. Accordingly, we must reverse the portion of the trial court's judgment that dismisses the Hixons' DTPA warranty claims against Pedigo.
Hixon, 2006 WL 3095326, at *11; see also id. at *12 (remanding warranty claims against Tyco and K2 because the Hixons' pleading contemplate several possible accrual dates for these claims, including 1995, 1998, and 1999, which the defendants had not negated).
Tyco and K2 additionally advance the argument that the "Hixons have failed to provide any case law or evidence that their breach of contract, breach of express and implied warranty, and fraud by nondisclosure claims allow a different, later accrual date than that previously determined by this Court" and object to "the Hixons' reference to unsigned warranties and portions of their Response to a Motion for Summary Judgment as proof of breach of warranty." This argument misconceives the parties' respective burdens at the summary-judgment stage. The Hixons' pleadings allege that numerous warranties of various lengths were given at various times. It is the burden of Pedigo, Tyco, and K2, as the movants for summary judgment, to "prove their affirmative defense by conclusively establishing the applicability of the statute of limitations, including the date on which the limitations commenced." Knott, 128 S.W.3d at 220; see also Nowak v. DAS Inv. Corp., 110 S.W.3d 677, 680 (Tex. App.-Houston [14th Dist.] 2003, no pet.) (holding that a statute of limitations bar is an affirmative defense that must be conclusively established by a traditional summary-judgment motion). But here the defendants did not address the Hixons' various warranty theories or their accrual dates, other than to argue that this Court already determined when these claims accrued.
Because the defendants did not file traditional or no-evidence motions for summary judgment challenging the existence, validity, or scope of those warranties, their protestations that the Hixons' rely upon unsigned warranties is likewise misplaced. We remand the Hixons' breach-of-warranty claims because the defendants have not carried their burden of proving, as a matter of law, that these claims are time barred.
D. The Hixons' Claims Subject to a Two-Year Statute of Limitations
In their third issue, the Hixons argue that the "trial court erred when the court granted K2, Tyco, and Pedigo's summary judgment on the Hixons' claims with a two year statute of limitations." The Hixons' Fifth Amended Petition asserted against Pedigo, K2, and Tyco a claim for "negligent performance of undertaking to render service," and against K2 and Tyco only claims for (1) product liability, (2) negligent product design, and (3) negligent distribution.
1. Negligent performance of undertaking to render service
The Hixons' negligent undertaking theory is that, by undertaking the responsibility of doing repairs on the Hixons' home in 1999, the defendants had a duty to exercise reasonable care in performing that work, which they allegedly breached. In moving for summary judgment, Pedigo argued that — based on the Hixons' own allegations — the latest accrual date for their negligent undertaking would be mid-1999 because the defendants' "undertaking" — i.e., repair work — was completed by then. Although Pedigo asserts that by "mid-1999, Plaintiffs were again complaining of moisture intrusion, meaning that is the latest possible time their cause of action could have accrued," it cites nothing in support of that factual assertion. Without any discussion of the underlying factual basis for the Hixons' negligent undertaking claims, Tyco and K2 argued in their motion for summary judgment that this Court's prior opinion established that all the Hixons' tort claims — including for negligent undertaking — accrued in 1997.
In addition to arguing that fraudulent concealment applies, the Hixons responded to the defendants' motions for summary judgment by asserting that Pedigo did not prove that their negligent undertaking claim accrued in mid-1999, and they point to evidence that Pedigo was still making repairs to the home in 2000. In response to Tyco's and K2's motion for new trial on their negligent undertaking claim, the Hixons rely on the theory of fraudulent concealment to argue that the defendants' conduct in inspecting the house in 1998 and repairing the house in 1999 raised a fact issue about whether the Hixons' reasonably relied on the defendants' failure to disclose the entire truth about the condition of their house.
On appeal here, the Hixons again assert that Pedigo failed to cite any summary judgment evidence in support of a mid-1999 accrual date, and that the fraudulent concealment doctrine tolled the limitations period for their negligent undertaking claims against Pedigo, Tyco, and K2. In response, Pedigo argues that this Court's prior opinion established that the Hixons' claim accrued in 1997 when the Hixons are deemed to have discovered problems with water leaks, and that attempts to fix those water leaks cannot form the basis of a later negligent undertaking claim. Alternatively, Pedigo argues that mid-1999 is the "latest possible time their cause of action could have accrued" because by "mid-1999, Appellants were again complaining of moisture intrusion." Tyco and K2 argue that this Court's opinion establishes an accrual date of 1997, and that "the Hixons failed to produce any evidence of a different or later date of accrual."
In support of this factual contention, however, Pedigo cites only his unsupported allegations in his motion for summary judgment.
Contrary to defendants' assertions otherwise, our prior opinion did not hold that the Hixons' negligent undertaking claim accrued in 1995. The Hixons' petition alleges that this claim is based upon work Pedigo, Tyco, and K2 began in 1999. It might be, based on the evidence, that these claims are time barred, but the defendants have not carried their burden to establish as much. Thus, we reverse the summary judgment on the Hixons' negligent performance of undertaking to render service claims against Pedigo, Tyco and K2 and remand these claims to the trial court.
2. Product liability
The Hixons' Fifth Amended Petition alleges that Tyco and K2 are liable under theories of (1) strict tort product liability, (2) negligent product design, and (3) negligent distribution. In their motion for summary judgment, defendants Tyco and K2 argued that these claims all accrued in mid-1997, when this Court determined that the Hixons' other tort claims accrued. In response, the Hixons alleged that fraudulent concealment and fraud by nondisclosure estops the defendants from relying on limitations as a defense, and that their claims were brought within the fifteen-year statute of repose.
On appeal, the Hixons offer no specific argument or authority in support of their assertion that the trial court erred by granting summary judgment as to their product liability claims. Instead, their brief states that they "incorporate by reference the arguments to all preceding issues, and the evidence, argument, and authority contained in the Court Record containing the Hixons' summary judgment responses as if stated verbatim herein." In response, Tyco and K2 argue that this Court previously found that the Hixons' prioduct liability claims accrued in 1997 and that the "Hixons have failed to produce any evidence of a different or later date of accrual."
We do not consider arguments advanced only in the trial court and incorporated by reference into appellate court briefing. Guerrero v. Tarrant Cnty. Mortician Servs. Co., 977 S.W.2d 829, 832-33 (Tex. App.-Fort Worth 1998, pet. denied). We do, however, interpret the Hixons' attempt to "incorporate by reference the argument to all preceding issues" in their appellant's brief to incorporate the argument — made throughout their brief — that this Court's prior opinion did not, as Tyco and K2 insists, establish a 1997 accrual date for the Hixons' remanded claims, which include their product liability claims. In our prior opinion, we explained that our holding that the Hixons' claims accrued by 1997 did not encompass these claims:
The same reasoning does not apply, however, to their claims for products liability, strict tort liability, negligent product design, [and] negligent product distribution. . . . K2 and Tyco did not address these claims, or any discovery-rule implications of these claims, in moving for traditional motion for summary judgment, and their discovery-rule and limitations bar contentions do not encompass an onset date for these newly asserted claims. Again, the Hixons' live pleadings contemplates several possible accrual dates for these causes of action. Specifically, the EIFS product was initially installed in 1995, the house was inspected in 1998, and the EIFS was reinstalled in 1999. K2 and Tyco, by not responding to the newly-asserted claims, failed to establish, as a matter of law, the accrual date of these causes of action.
Hixon, 2006 WL 3095326, at *12. Tyco and K2 did not attempt to establish the accrual date for these claims in their motion for summary judgment or in their briefing here. As we noted in our previous opinion, the EIFS was reinstalled at some point in 1999, but Tyco and K2 — arguing only that these claims accrued in 1997 — have failed to carry their burden of establishing as a matter of law when these claims accrued. While our prior opinion's discovery rule analysis applies to claims arising from the original house construction and the original installation of the EIFS, the same is not true of any EIFS installed in later years. We thus reverse the trial court's summary judgment as to the Hixons' claims for strict tort product liability, negligent product design, and negligent product distribution related to any EIFS installed subsequent to the original construction of the home and remand these claims to the trial court.
E. Misnomer
In their fourth issue, the Hixons argue that the "trial court committed error in dismissing the Hixons' lawsuit against K2 and Tyco when as a matter of law the lawsuit was filed against Tyco on December 7, 2001." In this Court's prior opinion, we correctly noted that the Hixons sued Pedigo on December 7, 2001, but incorrectly stated that K2 and Tyco were not added as defendants until June 28, 2002. Hixon, 2006 WL 3095326, at *2. The record reflects that Tyco was actually sued in the Hixons' December 7, 2001 petition, and the claims against K2 were added in June 2002. Our misstatement as to the date Tyco was sued was not relevant to the disposition of the earlier appeal, because the claims as to which we affirmed summary judgment were barred under either date, and the remaining claims were remanded for determination of the accrual dates.
In Tyco's and K2's motion for summary judgment, they allege that the Hixons "filed suit against these Defendants on June 28, 2002." In response, the Hixons' pointed out that they had sued Tyco in 2001, and additionally argued that their 2002 claim against K2 should relate back to 2001 because they added K2 as soon as Tyco filed disclosures stating "K2 was the correct corporate name of Finestone." They asserted that their naming only Tyco was a misnomer and, alternatively, even if it amounted to a misidentification of the correct defendant, no defendant was "misled or disadvantaged by the error."
On appeal, the Hixons reiterate that they sued Tyco in 2001 and again argue that through the application of the misnomer or misidentification doctrine, the 2002 filing against K2 should relate back. In support, they cite Pierson v. SMS Financial, which explains:
There is a distinction between misnomer and misidentification. Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex. 1990); Hernandez v. Furr's Supermarkets, Inc., 924 S.W.2d 193, 196 (Tex. App.-El Paso 1996, writ denied). Misidentification is when the party named in the pleading is not the party with an interest in the suit. Misnomer is when a party misnames either himself or the opposing party in a pleading, but the correct parties are involved. Typically, this happens when a plaintiff misnames a defendant in his petition. When this happens, the impact on the statute of limitations depends on whether the mistake was a misidentification or a misnomer. If a plaintiff misnames the correct defendant, then the statute of limitations is tolled and a subsequent amendment of the petition relates back to the date of the original petition. If the plaintiff is mistaken as to which of two defendants is the correct one and there is actually existing a defendant with the name of the erroneously named defendant, then the plaintiff has sued the wrong party and limitations is not tolled. Enserch Corp. v. Parker, 794 S.W.2d at 4-5; Hernandez v. Furr's Supermarkets, Inc., 924 S.W.2d at 196. The main distinction between misidentification and misnomer is whether the correct party received notice of the suit. Hernandez v. Furr's Supermarkets, Inc., 924 S.W.2d at 196. The main reason that the statute of limitations is tolled in cases of misnomer is that the party intended to be sued has been served and put on notice that he is the intended defendant. Dougherty v. Gifford, 826 S.W.2d 668, 676 (Tex. App.-Texarkana 1992, no writ); Braselton-Watson Builders, Inc. v. Burgess, 567 S.W.2d 24, 28 (Tex.Civ.App.-Corpus Christi 1978, writ ref'd n.r.e.).
959 S.W.2d 343, 347 (Tex. App.-Texarkana 1998, no pet.). The Hixons additionally note that when a defendant is not disadvantaged or misled, limitations may be tolled even with the plaintiff misidentifies a party. See Palmer v. Enserch Corp., 728 S.W.2d 431, 434 (Tex. App.-Austin 1987, writ ref'd n.r.e.).
Tyco and K2 concede in their brief that the Hixons sued Tyco on December 7, 2001, but argue that limitations have run as to all the Hixons' claims, including those brought in December 2001. These defendants also contend that the misnomer doctrine should not apply, and they do not respond to the Hixons assertion that, limitations should be tolled even if the Hixons' failure to sue K2 earier was the result of misidentification rather than misnomer.
These arguments have not been addressed by the trial court. We do not have a record before us to determine whether applying the misnomer doctrine would be appropriate. Moreover, we need not resolve the issue in this appeal because it only becomes relevant if the trial court, on remand, determines that claims brought in December 2001 are timely but the ones brought in July 2002 are not. For these reasons, we leave it to the trial court on remand to address this issue in the first instance, if necessary given the trial court's accrual determinations.
For example, the Hixons rely on Pierson's statement that the misnomer doctrine may apply when a company is sued in the name of a "related but separate company." The record, however, does not reflect in what way K2 and Tyco are related, if at all.
F. Objections to Summary Judgment Evidence and the Hixons' Motion for New Trial
In their fifth issue, the Hixons argue that the "trial court abused its discretion when the trial court refused to grant a new trial for the Hixons against K2 and Tyco, and committed error by not ruling on the objections raised by the Hixons to Pedigo's summary judgment evidence and granting a new trial.
The Hixons' response to Pedigo's motion for summary judgment included three "formal objections to Defendant Pedigo's summary judgment motion and exhibits." The Hixons cite nothing in support of their allegation that they timely brought their request for a written ruling on their objections to the trial court and that the trial court nonetheless refused to rule. In any event, a ruling on their objections would not impact the trial court's or this Court's disposition. The Hixons' other arguments in support of a new trial have already been addressed elsewhere in this opinion in response to the Hixons' first four issues. We overrule the Hixons' fifth issue.
CONCLUSION
We reverse and remand the trial court's summary judgment as to the Hixons' (1) breach-of-warranty and negligent undertaking claims against Pedigo, Tyco and K2, and (2) strict tort product liability, negligent product design and negligent distribution claims against Tyco and K2, only to the extent these claims relate to installation of EIFS occurring subsequent to the original construction of the Hixons' home. We also remand to the trial court the Hixons' claim that their suit against K2 relates back to the filing of their suit against Tyco under misnomer and misidentification theories for consideration by that court in the first instance. In all other respects, we affirm the trial court's judgment.