Summary
affirming dismissal of plaintiff's DTPA suit based on limitations where plaintiff discovered cracks and separations in walls shortly after moving into the home, but plaintiff waited more than two years to file DTPA suit based on allegations that prior owners failed to disclose the defective condition; court rejected argument that plaintiff did not discover nature of his injury until he discovered that it was sewer leak which caused the damage to the home or until he discovered that defendants knew about the sewer system leak at the time they sold the home
Summary of this case from Fraga v. DrakeOpinion
No. 94-1110.
March 2, 1995.
John M. Weaver, Dallas, for petitioners.
Martha L. Strother, Dallas, for respondents.
Kevin and Cathleen Smith purchased a house from Jack and Phyllis Gray. Upon taking possession of the house on February 6, 1989, the Smiths discovered major structural damage consisting of cracks and separations in the walls, floors, and foundation. The Smiths filed a claim with their insurance company that same day. On May 23, 1989, while investigating the claim, the insurance company discovered that prior to the time of sale, the Grays knew about the sewer leak that caused the damage, but failed to have it repaired or to disclose its existence to the Smiths.
The Smiths filed suit on July 11, 1991, alleging violations of the Deceptive Trade Practices — Consumer Protection Act (DTPA), TEX.BUS. COM.CODE §§ 17.46(b)(5), (7), (23). The Grays filed a motion for summary judgment contending that the statute of limitations barred the claim. The Smiths provided affidavits stating that they did not know and had no reason to suspect that the Grays had deceived them until late July or early August of 1989. The trial court granted the motion for summary judgment based on limitations. The court of appeals affirmed, holding that the statute of limitations had commenced on February 6, 1989, the date on which the damage was discovered. Smith v. Gray, 882 S.W.2d 103 (Tex.App. 1994).
In denying the application for writ of error, a majority of the Court neither approves nor disapproves of the court of appeals' analysis of the statute of limitations under the DTPA, TEX.BUS. COM.CODE § 17.565.