853 F.2d 355 (5th Cir. 1988), 87-1438, Walker v. Sears, Roebuck & Co.

Docket Nº:87-1438.
Citation:853 F.2d 355
Party Name:Kenneth WALKER, Plaintiff-Appellant, v. SEARS, ROEBUCK & CO., Defendant-Appellee.
Case Date:August 29, 1988
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 355

853 F.2d 355 (5th Cir. 1988)

Kenneth WALKER, Plaintiff-Appellant,


SEARS, ROEBUCK & CO., Defendant-Appellee.

No. 87-1438.

United States Court of Appeals, Fifth Circuit

August 29, 1988

Page 356

William A. Smith, Mark Alan Calhoun, Robert C. Brown, Calhoun, Gump, Spillman & Stacy, Dallas, Tex., for plaintiff-appellant.

F. Marianne Matthews, Joan G. Quinters, Matthews, Kroemer & Johnson, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before RUBIN, KING and WILLIAMS, Circuit Judges.

KING, Circuit Judge:

Plaintiff sued defendant for installing a faulty roof on plaintiff's home in March of 1982. Defendant filed a motion for summary judgment in which it urged that, because the Texas Deceptive Trade Practices Act has a two year statute of limitations, plaintiff's claim was time-barred. The district court agreed and granted defendant's motion; plaintiff appealed. We conclude that plaintiff's breach of an implied warranty claim, which was pleaded apart from and in addition to plaintiff's Deceptive Trade Practices Act claim, is governed by a four year statute of limitations and, therefore, was not time-barred. Consequently, we reverse the district court's judgment with respect to that claim. We agree with the district court, however, that plaintiff's Deceptive Trade Practices Act claim was time-barred; therefore, we affirm the judgment with respect to that claim.


The underlying facts which bear upon the issues before us on appeal are undisputed. On March 12, 1982, Kenneth Walker ("Walker") entered into a written contract with Sears, Roebuck & Co. ("Sears") to replace the roof on Walker's home in Corsicana, Texas. The contract price for these services was $3,418.97. By early July, the new roof was installed. On July 24, however, a heavy rain fell in Corsicana--the first since the roof was completed--and water leaked into Walker's house. Walker informed Sears about the leaking roof; because he had been transferred to a new city by his employer and was hesitant to list the house for sale as long as the roof continued to leak, Walker also informed Sears that he was eager for the repairs to be made quickly. In response to Walker's requests, Sears on several occasions sent out roofers who attempted to repair the roof. In September 1982, Walker became convinced that the roofers had succeeded; consequently, he accepted a check from Sears for the water damage to the house's interior, had the damage repaired, placed the house on the market, and moved from Corsicana. As the next heavy rain soon demonstrated, however, the roof was not fixed. Walker, therefore, once again began his negotiations with Sears. When no further progress had been made by June 1983--and with the leaking roof adversely affecting his ability to sell the Corsicana residence--Walker took his house off the market. Although Sears apparently continued its efforts to correct the problem into 1985, it never succeeded in making the roof serviceable. Finally, in September 1985, Walker hired an attorney to pursue a claim against Sears.

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In his attorney's first letter to Sears on Walker's behalf, the attorney gave notice of Walker's intent to seek multiple damages and attorney's fees from Sears under the Texas Deceptive Trade Practices Act ("the DTPA"). For approximately six months from the date of the first letter, Walker's attorney attempted to negotiate a resolution to Walker's claim with Sears without resorting to litigation. When no agreement had been reached by March 19, 1986, Walker--fearing that additional delay in bringing an action would cause his claim to be barred by limitations--filed suit against Sears in the 13th Judicial District Court of Navarro County, Corsicana, Texas. In his petition, Walker alleged, among other things, that by contracting with Walker, Sears represented that it would install Walker's roof in a workmanlike manner and impliedly warranted that the roofing materials and their installation would be merchantable, would be reasonably fit for their ordinary purpose, and would pass without objection in the trade. For Sears' failure to meet these and other obligations it owed to Walker, Walker sought actual damages of $25,670, remedial and punitive damages under the DTPA, and attorney's fees. On April 11, Sears removed the suit to the United States District Court for the Northern District of Texas on the basis of diversity of citizenship. Shortly thereafter, Sears filed an answer in which it asserted that Walker's claims were time-barred.

On November 3, 1986, Sears followed up on its statute of limitations defense with a motion for summary judgment; as Sears saw it, Walker's "causes of action" were barred because they were not brought within the two year time period in which the DTPA permitted them to be brought. In response, Walker "vigorously denied that his causes of action under the DTPA, misrepresentation, breach of warranty and unconscionable conduct theories" were time-barred. He argued that Sears' failure to properly install a water-tight roof on Walker's home constituted "a continuing breach of express and implied warranties of good workmanship." With respect to his DTPA claim, Walker made two arguments: (1) that because of Sears' "egregious course of dealing" with Walker, Sears should be equitably estopped from asserting its statute of limitations defense and (2) that because Sears continued its attempts to repair the roof into 1985 and because Walker's cause of action "ripened anew" with each and every attempt, the statute of limitations on the DTPA claim never began to run. Shortly after filing his response, Walker--with the district court's approval--amended his complaint to assert his equitable estoppel defense to Sears' limitations claim.

On December 10, 1986, the district court granted Sears, in a two page order, the summary judgment it had requested. In its order, the district court made several findings. First, the court recognized that pursuant to the DTPA's terms, all actions must be brought within two years after the consumer should have known that he had a cause of action; in this case, the court found, Walker knew he had a cause of action by at least September of 1983 and, therefore, his DTPA claim was time-barred when he filed it on March 19, 1986. Second, relying on Diamond v. Meacham, 699 S.W.2d 950, 953-54 (Tex.App.--El Paso 1985, no writ), the court found that "[n]ot only is [Walker's] DTPA cause of action barred, but his breach of warranty and his unconscionable conduct actions are also barred." The court then specifically rejected Walker's argument that Sears' failure to complete its repairs meant that Walker had a continuing cause of action until the repairs were made. And finally, with respect to Walker's equitable estoppel defense, the court found that it was "not persuad[ed]" by the summary judgment evidence Walker had filed in support of his argument concerning Sears' conduct.

Judgment for Sears was entered along with the order. Nine days later, Walker filed a motion for new trial. In his motion, Walker asserted that the district court's order granting summary judgment showed that the court was confused about exactly what Walker's claims were and the legal theories through which he had pursued those claims. In an attempt to dispel

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the court's confusion, Walker focused on the amended complaint. According to Walker, his amended complaint alleged two separate and independent theories of recovery: (1) a breach of warranty claim under the common law and the Uniform Commercial Code; and (2) a claim under the DTPA. In applying the DTPA's statute of limitations to his first claim, Walker alleged, the district court erred. Explained Walker, "The state courts in Texas, as well as the federal appellate courts applying Texas law, have strongly concluded that the four (4) year period of limitations of the Uniform Commercial Code, and that of common law, applies to actions for breach of warranty for defective products and services." Walker also expressed his dissatisfaction with the court's decision, made when Walker's claims were in summary judgment posture, that Walker's equitable estoppel argument was unpersuasive. Since the summary judgment evidence was clearly sufficient to create a fact question, Walker argued, the court had no power to determine on its own that estoppel was not established and, consequently, that estoppel was an unavailing defense to Sears' limitations claim. Despite Walker's arguments, the district court remained unconvinced that it had erred. Noting that "Plaintiff has brought no new arguments for the Court's consideration," the district court denied Walker's motion for new trial on May 15, 1987. Walker filed timely notice of appeal and now urges to us the arguments which failed him before the district court. 1 We begin our consideration of these arguments by acknowledging the standards by which we will review the district court's judgment.


On appeal, we evaluate a district court's decision to grant summary judgment by reviewing the record under the same standards which guided the district court. Brooks, Tarlton, Gilbert, Douglas & Kressler v. United States Fire Ins. Co., 832 F.2d 1358, 1364 (5th Cir.1987); Reid v. State Farm Mut. Auto. Ins. Co., 784 F.2d 577, 578 (5th Cir.1986). Consequently, we cannot affirm a summary judgment unless "we are convinced, after an independent review of the record, that 'there is no genuine issue as to any material fact' and that the movant is 'entitled to a judgment as a matter of law.' " Brooks, 832 F.2d at 1364 (quoting Fed.R.Civ.P. 56(c)). Under this standard, we must consider fact questions with deference to the nonmovant; when a fact question controls disposition on summary judgment, we must "review the facts drawing all inferences most favorable to the party opposing the motion." Reid, ...

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