### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON MOTION F OR REHEARING

NO. 03-17-00355- CV

Jam es Mar oney and Maureen Maroney, A ppellan ts

v. Chip B uerger Custom Hom es, Inc. and Newton W. Buerger , Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 126 TH JUDICI AL DISTRICT NO. D-1 -GN-1 6-0 0064 2, H ONO RAB LE JAN SO IF ER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

We withdraw our opinion and judgme nt dated Marc h 22, 2018 and substitut e the foll owing opinion and judgment i n their pl ace , and we overr ule Newton W. Bue rg er’ s motion for r ehea ring

. Appellants J ames and Maure en Marone y , s u b s eq u en t purcha sers of a home built by Chip Bue rg er Custom Homes, I nc. (B uerg er Homes), appea l the trial court’s summary judgme nt in favor of the builder and its president and sole share holder, Newton W. Bue rg er (collec tively , appell ee s ), d i s missing their claims alleg ing defe ctive and neg lige nt construction of the home and brea ch of implied and express war ranties. We rev erse the portion of the trial court’s summary judgme nt dismiss ing the M ar o n ey s’ implied-warr anty claim ag ainst Bue rg er Homes with respe ctto the claimed damag es to the two-sto ry lakeside porch and rema nd that cause for further
proce eding s. We also reve rse the portion of t he j u d gm en t awa rding appellee s attorney ’s fees and rende r judgme nt that neither appellee is entitled to attorney ’s fee s. We aff irm the rema inder of the trial court’ s judgme nt.

BACK GR OUND

The rec ord sh o ws that the Marone y s purcha sed the home at issue in J anuar y 2011 from a third-par

ty reloc ation company , which had purcha sed the home from its orig inal owner s, fo r whom Bue rg er Homes built the home pursuant to a “Residential Construction Contract” (t h e Co n tr a c t)

. B u e r g e r H o me s c o mp le te d c o n s tr u c ti o n o f th e h o me in Ju

n e 2 0 0 9

. Pr

io r to th e M a

r o n e y s ’
p u rc h as e, they rec eived from the seller’ s rea ltor a copy of an eng ineer ing repor t on the proper

ty (the 2011 re port) prepare d for the seller by an indepe ndent eng ineer ing c ompany . The Mar oney s 1 did not move fully into the home until mid-2012 but outfitted it with basic furniture and stay ed overnig ht there a

t least once a month afte r purc hasing it in early 2011.
I n Fe bruar

y 2016, the Marone y s filed this lawsuit ag ainst appellee s to rec over the costs of various repa irs they made to the home that wer e alleg ed l y n ec essi tated by defe ctive construction. Their pleading s alleg ed that in Marc h 2015 they discovere d water damag e and
water proofing issues with the home, causing structura l damag e and nece ssita t i n g repairs. They

asser ted claims in neg lige nce and brea ch of express and implied war ranties as well as pleading that their cla ims were not barr ed by the respective two- and four-y ear statutes of limitations due to the

I t is not clea

r from the rec ord whether the Marone y s hired an inspector, eng ineer , or other 1 expert of their own to e valuate the proper ty prior to purc hasing the home. 2discovery rule. See Tex. Civ. Prac. & Rem. Code § 16.003(a) (stating limit ations periods); W oods

v. W illiam M. Merc er, Inc. , 769 S.W .2d 515, 518 (Tex. 1988) (“A party seeking to avail itself of the discovery rule must there fore plead t h e ru l e, ei t her in its orig inal petition or in an amende d or supplemental petition in response to defe ndant’s asser tion of the defe nse as a matter in avoidanc e.”)

. T h r o u g h th e c o u

r s e o f d is c o v e r

y , th e M a r o n e y s id e n ti f

ie d f o u r d e f e c ts f o r w h ic h th e y s o u g

h t d a ma g e s : (1) inadequa

te water proofing and resulting structu ra l d amag e of the home’s two-story “lake side porch” ; (2) defe ctive installation of two columns outside the living-r oom window, resulting in wood
rot of the columns; (3) improper sealing of the home’s “enve lope,” causing or contributing to water damag e and bug infestation; and (4) impr oper g rading and draina g e around the home’s exterior, causing water

penetr ation into the home.
I n their answer, appellees ra i s ed sever al affirmative defense s, including statutes of limit ations and the Marone y s’ lack of capa city to sue due to non-privity , and filed a counter claim for attorney ’s fe es under

a pre vailing- party

clause in the Contract. Af ter suff icient time for discove ry had elapse d, appellee s filed a motion for partial summary judgme nt on all of the Marone y s’ claims, raising the following g rounds in support: limit ations, l ack of the Marone y s’ capa city to sue, the “e co nomic loss rule,” and lack of a materia l fac t issue with respe ct to the Marone y s’ landsca ping and g rading claims. Appellee s supported their motion with, a mong other evidenc e, excer pts from the deposition of J ames Mar oney and the 2011 r eport. T h e tr ia l c o u

r t g r a n te d the motion, leaving only appellee s’ counter claim for attorney ’s fee s pending

. Both parties then filed partial summary -judg ment motions with respe ct to appellee s’
counter claim. The trial court g rante d appellee s’ motion and denied appellants’ and later conducte d

an evidentiar

y hear ing on the amount of attorney ’s fee s to be awa rded. After that hear ing, the trial
3court rende red a final judgme nt incorporating the two interlocutory partial-summar y judgme nts and

awa rdin g ap p el l ees $54,000 in attorney ’s fee s plus further conting ent amounts in the event of

unsucce ssful appea ls by

the Marone y s. DISCUSSIO N The Maroney s contend on appea l that the t rial court erre d in (1) gr anting summary judgme nt dismiss ing all of t heir claims beca use t he evide nce the y

prese nted ra ised g enuine issues of materia l fac t on appellee s’ limit ations aff irmative defe nse and beca use appellee s wer e not entitled
to summary judgme nt as a matter of law on their neg lige nce and war ranty claims, and (2) awa

rding appellee s attorney ’s fe es beca use the Marone y s wer e not sig natories to the Contract. We reviewa
tr ia l c o u r t’ s g r a n t o f s u mm a r y ju d g me n t d e n o v o . V

a le n c e O p e r a ti n g Co

. v
. D o r

s e tt , 1 6 4 S. W. 3 d 6 5 6 , 661 (T ex . 2 0 0 5 ). When, as here , a trial court g rants summary judgme nt but does not specify the
g rounds for g ranting the motion, we must uphold the judgme nt if any of the g rounds asser ted in the motion and p re s er v ed for appellate revie w are m eritorious. Provident L ife & Acc ident Ins. C o. v. Knott , 128 S.W .3d 211, 216 (Tex. 2003). I n revie wing a trial court’s ruling on summary judgme nt,

we take as true all evidenc e favor able to the nonmovant, and we indulge ever y rea sonable infere nce and resolve all doubts in the nonm o v an t ’s favor. Id. Gene rally , we review the decision by a trial
court to either g rant or deny attorney ’s fee s for abuse of discretion. See EMC Mortg. Corp. v. Davis , 167 S.W .3d 406, 418 (Tex. App.—Austin 2005, pet. denied).

Lim itation s and discovery rule

A defe ndant moving for summary judgme nt on the aff irmative defe nse of limit ations h a s th e b u r d e n to c o n c lu s iv e ly

e s ta b li s h th a t de f e n s e . KP M G P e a t M a r wi c k v
. H a r r is o n Ct y
. H o u s
.
4Fin. Corp. , 988 S.W .2d 746, 748 (Tex. 1999). Thus , the defe ndant must (1) conclusively prove

when the cause of action acc rued, and (2) neg ate the discovery rule, if it applies and has been pleade d

or otherwise raised, by proving as a matter of law that there is no g enuine issue of materia l fac t about when the plaintiff d i s co v er ed, or in the exercise of rea sonable diligenc e should have discovere d, the nature of its injury

. Id. I f the movant e stablishes that the statute of limit ations bars the action, the nonmovant must then adduce summary -judg ment proof raising a fac t issue in a voidance of the statute of limitations. Id.

T h e d is c o v e r

y r u le is a li mi te d e xc e p t i o n t o t h e s ta tu te o f li mi ta

ti o n s . Co m

p u te r A s s o c

s
. Int’l, Inc. v. Alt ai, Inc. , 918 S

. W.2d 453, 455 (Tex. 1996). The rule is applied when the nature of the injury is inhe rently undiscovera ble, that is, w hen it is “diff icult for the injure d party

to le arn of the neg lige nt a ct or omission.” Id. at 456 (quoting W illis v. Mav erick , 760 S.W .2d 642, 645 (Tex. 1988)). “I nhere ntly undiscovera ble encompa sses the require ment that the exis tence of the injury is
not ordin ar i l y d iscovera

ble, even though due diligenc e has been used.” Id. Whether an injury is inhere ntly undiscovera

ble is a leg al question “dec i d ed on a cate g orica l rathe r than case -spec ific basis; the focus is on whether a type of injury rathe r than a particular injury was discovera ble.” Via Net v. TIG Ins. Co. , 211 S.W .3d 310, 314 (Tex

. 2 0 0 6 ). T h e d iscovery rule opera tes to defe r the

acc rual of a cause of action until the date the plaintiff knew or, exercis i n g reasonable diligenc e, should have known of t he facts giving rise t o the cause of a ction. Computer Assocs. , 918 S.W .2d
at 455; see J.M. Krupar Constr. Co. v. R o s en b er g , 95 S.W .3d 322, 329 (Tex. App.—Houston [1st Dist.] 2002, no pet.). A plaintiff need not know the full extent of the injury befor e limit ations beg in to run. See Town of Dish v. Atmos Energy Corp. , 519 S.W .3d 605, 613 (Tex. 2017) (holding

5that evidenc e showed p laintiffs wer e conce rned about air contamination and wer e at least put on

“inquiry notice” of claims well befor e date of repor t on which they relied as acc rual date) ; Gonzales

v. Southwest Olshan Found. Repair Co. , 400 S.W .3d 52, 58 (Tex. 2013) (re cog nizi ng that “once a claimant lear

ns of a wrong ful injury , the statute of limit ations beg ins to run even if the claimant does
not y et know the specific cause of the injury ; the party responsible for it; the full extent of it; or the chanc es of a

voiding it”) ; see also Murphy v. Campbell , 964 S.W .2d 265, 273 (Tex. 1997). Gene rally , in cons truction-def ect case s, limit ations beg in to run when an owner become s awa

re of proper

ty damag e. J.M. Krupar Constr. , 95 S.W .3d at 329. Howeve r, the question of when a plaintiff knew or should have known of an injury g ener ally is a question of fac t. Houston Livestock Show & Rodeo, Inc. v. Hamrick , 125 S.W .3d 555, 570 (Tex. App.—Austin 2003, no pet.). “Discove ry ” occurs when a plainti ff has knowledg e of such fact s , conditions, or circumstance s as

wo u l d ca u s e a rea sonably prudent person to make an inquiry that would lead to discovery of th e

c a u s e o f a c ti o n o r in

ju r y . Tr o u s d a le v
. H e n r y , 2 6 1 S. W. 3 d 2 2 1 , 2 3 4 ( T e x. A p p . — H o u s to n [1 4 th D is t. ] 2008, pet. denied)

. The discovery rule require s rea sonable diligenc e by the plaintiff to make inquiry about his or her leg al rig hts upon discovery of such fac ts, conditions, or circ umstances. See Bell v. Showa Denko K.K. , 899 S.W .2d 749, 754 (Tex. App.—Amarillo 1995, writ denied)

.

The parties ag ree that the M arone y s’ neglig ence and warra nty claims are g overne d b y tw o - a n d f o u r - y e a r li mi ta ti o n s p e r io d s , r e s p e c ti v e ly

. S e e T e x. Ci v . Pr a c . & Re m. Co d e § 1 6

. 0 0 3 ( a ) (stating limit ations periods). Be cause the Marone y s fi l ed this suit on Fe bruar y 11, 2016, any neg lige nce and war

ranty claims that acc rued prior to Fe bruar y 11, 2014 and 2012, respe ctively , are time-barr ed. Appellee s asser ted in their summary -judg ment motion that the Marone y s discovere d,

6or should have discov er ed , their claimed proper ty damag e in J anuar

y 2011 when they boug ht the hom e and revie wed the 2 0 1 1 repor t. See J.M. Kr upar Constr. , 95 S.W .3d at 329–330; Bayou Bend Towers Council of Co-Owners v. Manhattan Constr. Co. , 866 S.W .2d 740, 742–43 (Tex. App.—Houston [14t h Dist.] 1993, writ d enied) (noting that discovery rule tolls acc rual until plaintiff discovers, or should have discovere d throug h exercise of rea sonable diligenc e and car e,
nature of injury

).
We separ ately consider eac h of the Marone y s’ claimed home defe cts and whether appellee s wer e entitled to summary judgme nt by proving that there is no g enuine issue of materia l fac t abou t wh en the Marone y s discovere d, or in the exercise of rea sonable diligenc e should have discovere d, the nature of their injury

. KPMG , 988 S.W .2d at 748.

Claim s related to two-story lakeside porch

I n their summary -judg ment motion, appellee s contende d that the Marone y s knew or should have known—due to the 2011 repor t—about the alleg ed defe cts relating to the two-story lakeside porch more than four y ear s befor e they filed suit and that, there fore , their claims rela ted to that defe ct are barr ed by

limit ations. Appellee s cited the following statements in the re port, along with corr esponding ph o t o graphs: “The re is mortar cra cking at the stone arc hes at the northea st

corne r. . . . The stone arc hes exhibi t no steel lintels to provide support for th e venee r above. The resultant mortar cra cking , as noted above, is considere d as the result of an over- spanned condition. Repairs a re indica ted to adequa

tely support the vene er a

bove the a

rche s.” The Marone y s respond that the damage re l ated to the lakeside porch alleg ed in their l awsuit is not the “c rac ked mortar ” and a ssociated lintel and stone-venee r repairs (“cosmetic

7issue s ” )

— o f w h ich they acknow ledg e they knew about from the 2011 repor t—but, rathe r, “structur al damag e to the fra

ming members (the studs holding up the structure , t h e g irders and floor joists

s u p p o r ti n g th e f lo o r , a n d th e r a f te r s a n d c e il in g jo is ts h o ld in g u

p th e r o o f )

. . . d u e to w a te r p e n e tr a

ti o n and inadequa

te wat er proofing .” They contend that such structura l damag e require d them to “complete ly demolish the exis ting structure and rebuild the entire two-story porch,” ev i d en ce o f which repa irs they attache d to their summary -judg ment response in the form of invoices from their
repa ir contra ctor. They contend that appellee s did not prese nt conclusive summary -judg ment proof that the Marone y s either knew or should have known of the structura l damag e and water -pene tration defe cts based on the 2011 re port and the photog raphs of the cr acke d mortar. B ased on the rec ord,

we a g ree with the Marone y s.

The 2011 repor

t did not indicate any structura l problems wit h the t wo-story porch, and we cannot conclude from this re cord, as a matter of law, that the Marone y s’ injury in the form of the alleg edly structura lly defe ctive lakeside porch is a ty pe of injury that a rea sonable investiga tion into t h e “m o rt ar cra cks” would have reve aled. See Trousdale , 261 S.W .3d at 234 (noting that limit ations period beg ins running when plaintiff has knowl ed ge of such fac ts, conditions, or ci rc u m s t an ces as would cause rea sonably prudent person to make inquiry that would lead to discovery of cause of action or injury). I t is not clea r from this rec ord what, exactly , is the claimed injury to the lakeside porch other than the Marone y s’ g ener alized c omplaint in their pleading s and depositions of “struc t u ra l d amag e” and “inade quate water proofing ,” and we will not specula te, there fore , as t o whether the cl ai m ed i n j u ry is a ty

pe that is “inher ently undiscovera ble” (such t hat the di scover

y rule would apply

). See Computer Assocs. , 918 S.W .2d at 455 (def ining “ i n here ntly

8undis co v er ab l e” injury). We conclude that appellee s did not meet their burden of proof on their

aff irmative defe nse of limit ations with respe ct to the Marone y s’ alleg ations about structura l defe cts to the lakeside por ch and, a ccor dingly , we hold that summary judgme nt with respe ct to this inj ury on the basis of limitations was err or.

Claim s related to lakeside colum ns

I n t h ei r summary -judg ment motion, appellee s also asser ted that the Marone y s’ claims alleg ing that they had defe ctively installed cer tain columns on the lakeside of the home wer e time-barr ed beca

use the Marone y s lear

ned o f t h e defe ct, or of enoug h fac ts to put them on notice of their injury , from the 2011 r eport, more than four y ear s befor e filing suit. W e ag ree .

I n his deposition, J ames Marone y explained eac h o f t h e d ef ects for which he and
Maure en wer e suing appellee s. Wit h respe ct to the columns, he testified: “[T] here wer e two columns on the lakeside of the house. Outside the living room window it was noted in one of these
repor ts about the base underne ath them being —it was just a compilation of t wo-by -four s that that [si c] was going to ro t , wh i ch i t did and we had that repla ced.” The 2011 repor t contained a color photogr aph of the complained- of columns, which J ames Marone y identified in his deposition as the defe ctive columns at issue, a nd descr ibed the columns (“ posts”) thus:

The two larg e wooden posts on the east side at the g abled roof for the g rea t room are sitti ng on unpainted, untrea t ed wo o d en blocks that are cra cked and deter iorated. Wood in contact with concr ete will be subjec t to continuing dete rioration.

I n light of this 2011 repor t, a s well as J ames Marone y ’s deposition identify ing the column damag e for which he was suing and his acknow ledg ment of rec eiving and revie wi n g the repor t befor e
9purcha sing the home, we hold that the discovery -rule does not apply to toll acc rual of the Marone y s’

claims with respe ct to th e co l u m n damag e. The evidenc e conclusively shows that the Marone y s

wer e on notice of the “def ective” construction of the columns—the wood bases in contac t with

concr ete—more than two and four y ear s pri o r t o fi l i n g suit and, thus, neg ates application of the discovery rule. See Trousdale , 261 S.W .3d at 234

. Moreove r, the claimed defe ctive column construction (i.e ., the wood column in direc t c ontact with c oncre te) is not the ty pe of injury

that is diffic u lt for a home purchaser to discover (i.e., i nhere ntly undiscovera ble), as the defect is visible with the naked ey e, and any future worsening of the condition could be anticipated throug h the exercise of rea sonable diligenc e. See Computer Assocs. , 918 S.W .2d at 455. Acc ording ly , we hold that the trial cou rt proper ly g rante d summary judgme nt on all of the Marone y s’ claims rela ted to damag e to the lake side columns.

Claim s related to im

proper sealing of the “hou se enve lope”
I n their motion for summary judgme nt, appellee s also asser ted that th e Marone y s’ claim alleging th at t h ey had defec tively seale d the “house envelope ” was time-barr ed because the
Marone y s lear

ned of the defe ct, or of enoug h fac ts to put them on notice of their injury , shortly afte r purcha sing the home and more than four y ear s prior to filing suit. We ag ree .

I n his deposition, J ames Marone y explained his and Maure en’s claim with respe ct to the house envelope : “The house envelope was defic ient in that there wer e opening s al l around,
espec ially wher e the wood trim me t the masonry wher e insects and pests could g et in.” He further testified that “fr om the beg inning” h e and Maure en had noticed that an inordinate amount of centipede s, milli pedes, and other bugs were g etting into the hom e and that, eventua lly , he had the

10house envelope seale d by hiring contra ctors to caulk the alleg ed g aps, for which repa irs they made

claims in this lawsuit. This evidenc e establishes that, while they may not have known what was causing the “bug infestation” until much later or the full extent of the alleg ed defe ct, the Marone y s

wer e on notice of their i njury more than four y ear s prior t o filing suit. See Gonzales , 400 S.W .3d
at 58. Fur

thermore , g aps at the intersec tions of a home’s exterior components wher e ca u l k i n g or seala nt is not prese nt is a ty

pe of de fec t that is not, categ orica lly , difficult for a hom e purchaser to d is c o v e r if e xe r c is in g r e a s o n a b le d il ig e n c e . S

e e Co m p u te r A s s o c

s
. , 9 1 8 S. W. 2 d a

t 4 5 5

. A c c o r d in g ly , we hold that the tria l court prope rly g rante d appellee s summary judgme nt on all of t he Maroney s’ claims rela ted to improper se aling of the house e nvelope.

Claim s related to grading an d landscapin g

Specific to the Marone y s’ alleg ed injury rela te d to d e fec tive g rading and landsca ping, appellee s moved for summary judgme nt on the g round that they had no duty to perf orm the landsca ping and g rading work in a non-neg lige nt or g ood and workmanlike manner beca use, simply , they did not perf

orm the work, and the Marone y s had prese nted no evidenc e to show that they did. Our re view of the rec ord supports the trial c ourt’s summary judgme nt on this ground. When asked in his deposition whether Bue rg er Homes had been responsible for the g rading and landsc aping work a round the home, J ames Maroney replied tha t he did not know. There was no other evidenc e supporting the Maroney s’ contention that appellee s had perf ormed
g rading and landsca

ping work, and uncontrove rted e vidence submitt ed in the form of the aff idavit of Newton W. Buerg er indica tes that appe llees di d not perf orm the l andsca

ping and gra ding work

on the home. I n the absenc e of any evidenc e controve rting this and cre ating a fac t issue on whether

11a

p p e ll e e s p e r f

o r me d th e w o r

k a t is s u e , w e h o ld th a

t th e tr ia l c o u r t p r o p e r ly g

r a n te d s u mm a r y ju d g me n t with respec t to all of the Marone y s’ claims re lated to the alleg ed landsc aping and g rading defe cts.
Negligence

claim s Wit h respe ct to their neg lige nce claims, the Maroney s co n t end that the trial court

err ed by g ranting appellee s’ summary -judg ment motion on the g round that the claims wer e bar red by the “economic los s rule.” Specifica lly , appellee s had assert ed i n t h ei r motion that beca use t he only damag e alleg ed by the Marone y s was to the subject of a contra ct (i.e., the home) rathe r than to other property or t o persons, the action li es onl y in contra ct, not tort. See Jim W alter Homes, Inc.

v. Ree d , 711 S.W .2d 617, 618 (Tex. 1986) (“When the injury is only the economic loss to the subject of a c ontrac t itself, the action sounds in contra ct alone.” ).

As the supreme court has rec ently noted, the “ec onomic loss rule” is somewhat of a misnomer, as the doctrine consists of sever al limit ed rules that g overn rec overy of economic losses under cer tain circ umstances. See Sharyland W ater Supply Corp. v. City of Alton , 354 S.W .3d 407, 415 (Tex. 2011). Nonethele ss, T exas c ourts have applied the doctrine to circ umstances analog ous
to those pre s en t h er e, prec luding neg lige nce claims wher e the only loss alleg ed is to the subject
matter of a contra ct, even when the parties are not in contra ctual privity

. See A& H Props. P’ship v. GPM Eng’g , No. 03-13-00850- CV, 2015 WL 9435974, at *1–2 (Tex. App.—Austin Dec

. 23, 2015,

no pet.) (mem. op.) (holding that economic- loss rule prec luded war ehouse owner ’s neg lige nce claim
ag ainst desig ner of g eother mal loop wher e owner had no contra ct with desig ner, who was hired by construction company with whom owner contra cted for installat i o n and construction of ener g y eff icient improvements); Schambac her v. R.E.I. Elec., Inc. , No. 2-09-345- CV, 2010 WL 3075703,

12at *7 (Tex. App.

— Fo rt W o rt h Aug

. 5, 2010, no pet.) (mem. op.) (holding that homeowner ’s

neg lige nce claims ag ainst subcontrac tors wer e barr ed by economic- loss rule, wher e homeowner had

no contra ctual privity with subcontrac tors, and only injury alleg ed was to construction service s that

wer e subjects of contra cts betwee n s u b c o n tr a c to r s a

n d g ener al contra ctor); Pugh v. Gene ral Terrazzo Supplies, Inc. , 243 S.W .3d 84, 93–94 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (holding that homeowner s’ neg lige nce claims ag ainst subcontrac tor and materia ls supplier, with whom they had no contra ctual privity , wer e barr ed by economic- loss rule wher e only injury was to home itself, which was subject of construction contra ct betwee n homeowner and g ener al contra ctor); Trans-Gulf Corp. v. Performance Aircraft Servs., Inc. , 82 S.W .3d 691, 695 (Tex. App.—Eastland 2002, no pet.) (h o l d ing that neg lige nce claim of subsequent purcha ser of airplane ag ainst company perf orm i n g
repa irs for airplane ’s previous owner was prec luded by economic- loss rule wher e only injury claimed was faulty repa irs themselves); see also Hining er v. Ca s e C orp. , 23 F.3d 124, 125, 127 (5th Cir. 1994) (apply ing Texas law and holding that economic- loss rule barr ed neg lige nce claim of purcha ser of comb i n e aga i n st manufa cture r of repla ceme nt whee ls, with whom plaintiff had no privity of contra ct, wher e only injury was to whee ls themselves); Coffey v. Fort W ayne Pools, Inc. , 24 F. Supp. 2d 671, 687 (N. D. Tex. 1998) (“I t is we l l -s et t l ed Texas law that a plaintiff cannot maintain a tort action ag ainst a defe ndant when his d am age s are only for economic losses cause d by the failure to perf

orm a contra ct.”)

. The application of the economic- loss rule is a question of law that we revie w de novo. See Bank of Am., N.A. v. Barth , No. 13-08-00612- CV, 2013 WL 5676024, at *10 (Te x . App.—Corpus Christi Oct. 17, 2013, no pet.) (mem. op.)

.

Whil e the Marone y s cite the Gupta case in suppo rt o f t h ei r neg lige nce claim, see Gupta v. Ritter Homes, Inc. , 633 S.W .2d 626, 628 (Tex. App.—Houston [14t h Dist.] 1982), affirmed
13in rel ev a n t p a rt, reve rsed in part on other grounds by 646 S.W .2d 168, 168 (Tex. 1983), we

conclude that the case is not controlling for two rea sons: (1) the economic- loss rule was not arg ued by defe ndants or at issue in that ca se, as it is here ; and (2) the more re cent Jim W alter Homes case and its prog eny , ref

ere nced supra, have applied the “ec onomic loss rule” to injuries such as th o se here to prec lude neg lige nce c laims. See LAN/ST V v. Martin K. Eby Constr. Co. , 435 S.W .3d 234,
242 n.35 (Tex. 2014) (“ W e h ave repe atedly rea ffirme d this [economic-loss] rule [i dentified in
Jim W alter Homes ].”); Medic al City Dall., Ltd. v. Carlis le Corp. , 251 S.W .3d 55, 61–62 (Tex. 2008) (whe re plaintiff building owner contra cted with roofing compan y t o re- roof its building, its
neg lige n ce cl ai m ag ainst roofing -mater ials supplier was barr ed by economic- loss rule where only injury was to defe ctive roof itself, which was “the subject of a contra ct” betwee n owner and roofing
company ). Acc ording ly , we hold that summary judgme nt in favor of appellee s on the g round of the “ec onomic loss rule” wa s proper , and we overr ule the Maroney s’ i ssues perta ining to dismissal of their neg lige nce c laims.
Express-warrant

y claims Ap p ell ees arg

ued in their summary -judg ment motion that they wer e entitled t o j u d gm en t o n the Marone y s’ express-war ranty claims beca

use (1) the Marone y s could produce no evidenc e of the purported element of a war ranty claim requiring the defe ndant to “have sold service s
to the plaintiff,” see Paragon Gen. Contractors, Inc. v. Larco Const., Inc. , 227 S.W .3d 876, 887 & n.8 (Tex. App.—Dallas 2007, no pet.) (noting that case law and statutes s u p p o rted appellee ’s

asser tion of six elements o f cl ai m s for brea ch of war ranty for service s provided); and (2) the
M a r o n e y s la c k e d c a

p a c it y to b r in g a c la im d

u e to la c k o f p r iv it

y o f c o n tr a c t a

n d b e c a u s e th e y s u f

f e r e d

14purely economic loss, see Texas Processe d Plastics, Inc. v. Gray Enters., Inc. , 592 S.W .2d 412, 415

(Tex. Civ. App.—Ty ler 1979, no wr it).

On appea l, the Marone y s contend that they have a viable express (statutory ) war ranty claim under the now-e x pired Texas Resident i al C o nstruction Commi ssion Act (TRCCA), which

was in eff ect from 2003 to 2009, and that their statutory -wa rra nty claim is not barr ed by their lack 2 of privity with appellee s beca use the war

ranties confe rre d by the act run with the home to the benef it of subs equent homeowners. See Act of May 2 7 , 2 003, 78th L eg ., R.S., ch. 458, §1.01, Tex. Gen.
L aws 1703, 1703–22 (expired Sept. 1, 2009) (F ormer Tex. Prop. Code §§ 401.001–446.006). They contend that their statutory -wa rra nty claim under the TRCCA is viable beca use the home was built while the ac t was in eff

ect. 3 The TRCCA imposed statutory minimum war ranties and perf

ormanc e standards for the construction of homes and repla ced common-law implied war ranties of g ood workmanship and habitability

. See For

mer Tex. Prop. Code §§ 430.002 (“The construction of eac h new home or home

The TRCCA also established the Texas Residential Construction Commi ssion (TRCC) to 2 overse e the reg istration of homes, homebuil d er s , and remode lers; to administer a state-sponsore d inspection and dispute-r esolution process to addr ess alleg ed construc tion defec ts; and to de lineate the limit ed statutory war ranties and buildin g and perf ormanc e standards established in the act. Smith v. Ove rby , No. 04-15-00436- CV, 2016 WL 4444437, at *1 (Tex. App—San Antonio Aug

. 24, 2016, no pet.) (mem. op.). The TRCC did not survive sunset revie w in 2009 and stopped acc epting new cl aim s ag ainst builders for alleg ed defe ctive construction in September 2009 and stopped proce ssing e x isting cla ims in S eptember 2010, when it ce ased ope rations. See id. at *1 n.1. The Contract betwee n Bu er ger Homes and the orig inal homeowner s identified the only 3 war ranties g iven by the builder as those provided by “the applicable limit ed statutory war ran t y promulg ated by the [TR CC] , a copy of which can be found at [currently inactive internet hy perlink].” See also Act of May 27, 20 0 3 , 7 8 t h L eg ., R.S., ch. 458, §1.01, Tex. Gen. L aws 1703, 1703–22 (expired Sept. 1, 2009) (F ormer Tex. Prop. Code § 430.001(b)( 3)) (providing for 10-y ear war ranty for struc tural work)

. 15improvement shall include the war ranty of habitability .”), .006 (“The war ranties established under th is c h a p te r s u p e r s e d e a ll im

p li e d w a r r a n ti e s . T h e o n ly w a

r r a n ti e s th a t e xi s t f o r r e s id e n ti a l c o n s tr u c ti o n

or residential improvements are war ranties cre ated by this chapte r or by o t h er s t atutes expressly ref err ing to residential construction or residential improvements, or any express, written warra nty acknow ledg ed by the homeowner and the builder.”)

. The TRCCA war ranties could not be waived, id. § 430.007, and the a ct g overne d ever y residential home c onstructed a fter June 1, 2005 throug h Aug ust 31, 2009. See id. § 401.006.

Howeve r, the TRCCA expired under its sunset provision on September 1, 2009. See id. § 40 1

. 0 0 6

. W h en a cause of action is based on a statute—as the Marone y s contend that their
express-war

ranty claims are —a repe al of that statute without a saving clause for pending suits or for

cause s of action not y et acc rued under the statute abolishes an y rig hts of action based upon the

s t at ute, and parties claiming a cause under the statute are “lef t without any reme dy at law t o enfor ce the ir claims.” American H onda Motor Co. v

. Texas Dep’ t of Transp.-Motor Vehic le Div. , 47 S.W .3d 614, 621 (Tex. App.—Austin 2001, pet. denied) ; see Knight v. International H arvester Credit Corp. , 627 S.W .2d 382, 384 (Tex. 1982). “The g ener al rule is that when such law is repe aled without a saving clause , it is considere d, except as to transac tions past and closed, as though it had

never exis ted.” American Honda Motor Co. , 47 S.W .3d at 621 (quoting National Carloading Corp.

v. Phoenix- El Paso Express , 1 7 6 S

. W

. 2d 564, 570 (Tex. 1943)). Although the TRCCA was not expressly repe aled but, rathe r, expired on its own terms in acc ordan ce with its sunset provision,

we conclude —for the purposes here —that repe al versus expiration is a distinctio n wi t hout a differ ence . See Jones v. Foundation Surgery Affili ates of Brazoria Cty. , 403 S.W .3d 306, 310 (Tex.

16App.—Houston [14t h Dist.] 2012, pet. denied) (hold i n g t h at cu rre nt law as set out in business

org anizations code applied to dispute rathe r than expired partne rship act that was in forc e at ti m e plaintiffs’ cause of action conc erning partne rship arose ). Be cause the TR CCA expired befor e the
Marone y s obtained any relief there under, it is as i f t h e ac t “neve r ex isted,” and they are without a

reme dy to enfor ce their cl aim s there under. See American Honda Motor Co. , 47 S.W .3d at 621. Acc ording ly , we overr

ule the Marone y s’ issues in which they contend that the trial court improperly
g rante d summary

judgme nt on their express-wa rra nty claims.

Im plied-warranty claim s

Appellee s moved for summary judgme nt on the Marone y s’ implied-warr anty claims on the g round that they

wer e super seded by

the TRCCA. See For

mer Tex. Prop. Code § 430.006 4 ( “ T h e w a r r a n ti e s e s ta b li s h e d u n d e r th is c h a

p te r s u p e r s e d e a ll im

p li e d w a r r a n ti e s . T h e o n ly w a

r r a n ti e s that exis t for residential construction or residential improvements are . . . war ranties cre ated by this chapte r.”)

. Howeve r, as discussed supra, beca use the TRCCA expired, it is as if it “neve r exis ted.” Thus, it has no eff

ect on the Ma

roney s’ implied-war

ranty claims. The supreme court has held that a subsequent purcha ser of a home may maintain a

cause of ac tion for bre ach of the i mplied warr anties of ha bitability and g ood workmanship, which

They also moved for summary judgme nt o n t h e g round t hat Newton W. Bue rg er cannot 4 be held persona lly liable on the Marone y s’ war ranty claims beca

use the previous owner s of the home contracted solely with Bue rg er Homes (the corpora tion), not Bue rg er himself (who was not a party to the Contract). The Marone y s do not raise the issue of Bue rg er’ s persona l liability in their appellate briefs or otherwise challeng e the propriety of the tr i al court’s ruling with respe ct to his liability and, accor dingly , we affirm the portion of t he trial court’s summary judgme nt dismi ssing their wa rra nty claims ag ainst him. 17are implied by ever y contra ct for the construction of a home. See Gupta , 646 S.W .2d at 169 (“We hold that [t he implied war ranty of habitability and g ood workmanship] does cover latent defe cts not discovera ble by a re asonably prudent inspection of t he buil ding at the time of [a subsequent] sale.

. . . As betwee n the builder and owner , it matters not whether there h as b een an intervening

owner .”). Acc ording ly , we sustain the Marone y s’ issues contending that the trial court’s summary judgme nt on their implied-warr anty claims ag ainst Bue rg er Homes was i m proper , reve rse that portion of its judgment, a nd rema nd this iss ue for

further proce eding s.

Attorn ey’ s fee s The trial court’s final judgme nt awa rded Bue rg er Homes and Bue rg er $54,000 (without seg reg ating the amount betwe en the two defe ndants) on their counte rcla im for attorne y ’s fee s under the Contract’s “pre vailing party ” clause

. On appea l, the Marone y s co n t en d t h at they
cannot be bound by the preva iling-pa rty clause beca

use they are not signa tories to the Contract. See,
e.g. , Rapid Settlements, Ltd. v. Gree n , 294 S.W .3d 701, 706 (Tex. App.—Houston [1st Dist.] 2009,

no pet.) (“I t g oes without say ing that a contra ct cannot bind a nonparty .”) (quoting EEOC v. W affle House, Inc

. , 534 U.S. 279, 294 (2002)).

We ag ree that the attorney ’s-fe es awa rd must be reve rsed, not only b ec au s e the
Marone y s are not sig natories, but a lso be cause the Contract has no applicability to the Marone y s’ 5

We find that the case s relied upon by appellee s for the propositio n t h at at torney ’s-fe es 5 clause s simil ar to the one here entitle “any preva iling party to the litigation to cos ts and fee s, reg ardle ss of whether the litigants wer e signa tories to the contra ct,” a re distinguishable beca

use in those opinions (1) the lawsuit at issue was “re lated to” the Contract and (2) the party rece iving the attorney ’s-fe es awa

rd was the non-sig natory , rathe r than the reve rse—a ttorney ’s fe es assessed against a non-signator

y , as we have here

. See Law son v. Keene , No. 03-13-00498-CV, 2016 WL 767772, at *3–4 (Tex. App.—Austin Fe b. 23, 2016, pet. denied) (mem. op.); Sierra Assoc. Grp., Inc. 18claims, which we re not—a s the Contract’s attorney ’s-fe es provision specif ies—“broug ht under or with rela tion to” the Contract. The Marone y s’ pleading s asser ted that their war

ranty claims arose 6 under the TRCCA and due to alleg ed war ranties that “run with the land.” Acc ording ly , we conclude that the trial cour

t erre d in awar ding a

ppellees a ttorney ’s fe es.

CONCLUSION The trial court proper ly g rante d summary judgme nt on (1) the Marone y s’ neg lige nce and ex p re ss-war

ranty claims ag ainst both appellee s, (2) the Marone y s’ implied-warr anty claims
ag ainst Bue rg er persona lly , and (3) all of the Marone y s’ claims ag ainst both appellee s for damag es to the home’s lake side columns, “enve lope sea ling,” and landscaping and gra ding. We aff irm the judgme nt in these respe cts.

Howeve r, t he trial court erre d in g ranting appellee s attorney ’s fe es, and we reverse that portion of its judgme nt and rende r judgme nt that neither appellee is entitled to attorney ’s fee s. The trial court also err ed in g ranting Bue rg er Homes summary judgme nt on the Marone y s’ impliedwar ranty claims ag ainst it and on its aff irmative defe nse of limit ations with respe ct to the Marone y s’

v. Hardeman , No. 03-08-00324- CV, 2009 WL 416465, at *6–8 (Tex. App.—Austin Fe b. 20, 2009, no pet.) (me m. op.).

For the first ti m e on appea l, appellee s asser t that the non-sig natory Marone y s are 6 nonetheless bound by the Contract’s attorney ’s-fe es provision under the theory o f e q u ita ble estoppel. See In re Kellogg Brown & Root, Inc. , 166 S. W

. 3 d 732, 739 (Tex. 2005) (orig

. proce eding )

. Howeve r, we may not aff

irm the awa

rd of attorney ’s fee s on this g round, as it was not expressly set out in appellee s’ summary -judg ment motion. See Stiles v. Resolution Trust Corp. , 867 S.W .2d 24, 26 (Tex. 1993). Even had appellee s raised equitable estoppel as a g round below, we would conclude that it is inapplicable here , as the Marone y s’ p l ea d i ng s do not ref lect that they are “see king the benef its” of the Contract by , for instance, attempting to enfor ce o t h er p rovisions of the Contract ag ainst appellee s. See I

n re Kellogg Brown & Root , 166 S.W .3d at 739.

19claim of damag es to the two-story lakeside porch. Acc ording ly , we reve rse the trial court’s summary

judgme nt dismissing the Marone y s’ implied-war ranty claims ag ainst Bue rg er H omes with respe ct
to their claimed damag e to the lakesid e p orch and rema nd that cause for further proce eding s in

acc ordanc e with this opinion.

__________________________________________ David Pury ear , J ustice
Be fore J ustices Pury ear , Field, a nd Bour land Affir med in Part; Reverse d and Remanded in Part; Reverse d and Rendere d in Part o n Motion for Rehe aring Filed: June 20, 2018

20