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Affirmed in Part and Reversed and Remanded in Part and Memorandum Opinion filed August 28, 2008.

In The


Fourteenth Court of Appeals



NO. 14-07-00254-CV









On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2005-64644



M E M O R A N D U M    O P I N I O N

In this appeal from a final summary judgment, appellant asserts that the statute of limitations does not bar her product-liability claim against an automobile manufacturer.  She further contends that her contract and warranty claims against an automobile dealership are not subject to the two-year statute of limitations.  Finally, she argues that she presented more than a scintilla of evidence regarding her contract and warranty claims.  Because we conclude that summary judgment was appropriate on all her claims against the manufacturer and her contract claims against the dealership, we affirm that portion of the judgment.  Because the dealership failed to conclusively establish that appellant=s warranty claims were time-barred, however, we reverse that portion of the judgment and remand the case for further proceedings.

I.  Factual and Procedural Background

In 2000, the National Highway Transportation Safety Administration (ANHTSA@) issued a recall bulletin to General Motors Corp. (AGM@) for all 1995 Oldsmobile Cutlass Supremes.  This bulletin reported that corrosion of the airbag deflator=s internal wiring for the Cutlass Supreme could cause the inadvertent deployment of the driver=s side airbag when the vehicle was started, while it was parked or idling, or while it was in operation.  The recall bulletin directed GM to provide notice of the recall to all customers in July 2000.  Sharon Heckel purchased a 1995 Oldsmobile Cutlass Supreme in early 2001.  According to Heckel, she never received notice of the recall, and the airbag system in her car was never repaired.

In February 2003, Heckel took her Cutlass Supreme to Allen Samuels Chevrolet (AAllen Samuels@) because it was Arunning rough.@  Heckel requested that Allen Samuels perform a tune-up, an oil change, and a lube job, and provide estimates for some minor repairs.  She did not inquire about any warranty or recall work, but did request that Allen Samuels determine why her vehicle was Arunning rough.@  Allen Samuels neither repaired the airbag system nor warned Heckel that a recall bulletin had been issued for the vehicle.  Heckel paid for the repairs and took her vehicle.  According to Heckel, she started her Cutlass Supreme in September 2003 and the airbag deployed, striking her in the head and causing her to suffer a variety of injuries.

On October 12, 2005, Heckel sued Allen Samuels for breach of contract.  After Allen Samuels filed a third-party petition against GM, Heckel amended her petition to assert negligence, breach-of-contract, and warranties claims against Allen Samuels and a product-liability claim against GM.  Both GM and Allen Samuels asserted the statute of limitations as affirmative defenses in their answers.

GM filed a motion for traditional summary judgment on the ground that Heckel=s suit was time-barred because she filed it more than two years after her injury.  Allen Samuels filed a motion for traditional and no-evidence summary judgment, asserting the following five grounds: (1) Heckel=s personal-injury and Deceptive Trade Practices Act warranties claims are barred by the statute of limitations; (2) implied warranties for services are not actionable under the Uniform Commercial Code; (3) Heckel is not entitled to personal-injury damages based upon a breach-of-contract claim; (4) there is no evidence of an express warranty; and (5) there is no evidence of breach of contract.  The trial court granted both GM and Allen Samuels=s motions and rendered final summary judgment in February 2007.[1]  This appeal timely ensued.

II.  Issues Presented

In her first issue, Heckel asserts that the trial court erred in rendering summary judgment in favor of GM because the 15-year statute of repose governs limitations for product-liability claims against a manufacturer or seller.  In her second and third issues, Heckel contends the trial court erred in rendering summary judgment in favor of Allen Samuels because her breach-of-contract and warranties claims were timely filed within the four-year statute of limitations for bringing such claims,[2] and she produced more than a scintilla of evidence to support these claims.

III.  Analysis

A.        Standard of Review

We review summary judgments de novo,[3] and where the trial court grants the judgment without specifying the grounds, we will affirm if any of the grounds presented are meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872B73 (Tex. 2000).  Here, the appellees moved for summary judgment on both traditional and no‑evidence grounds; thus, we apply the familiar standard of review appropriate for each type of motion, taking as true all evidence favorable to the nonmovant, and indulging every reasonable inference and resolving any doubts in the nonmovant=s favor.  See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (traditional summary judgment); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (no‑evidence summary judgment).

In a motion for traditional summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).  To be entitled to traditional summary judgment, a defendant must conclusively negate at least one essential element of each of the plaintiff=s causes of action or conclusively establish each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).  Evidence is conclusive only if reasonable people could not differ in their conclusions.  City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).  Once the defendant establishes its right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact.  Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 676 (Tex. App.CHouston [14th Dist.] 2007, pet. denied) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678B79 (Tex. 1979)). 

In a motion for no‑evidence summary-judgment, the movant represents that there is no evidence of one or more essential elements of the claims for which the non‑movant bears the burden of proof at trial.  Tex. R. Civ. P. 166a(i); Dias, 214 S.W.3d at 676.  A no‑evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence that raises a genuine issue of material fact.  King Ranch, Inc., 118 S.W.3d at 751.  ALess than a scintilla of evidence exists when the evidence is >so weak as to do no more than create a mere surmise or suspicion= of a fact.@  Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).  On the other hand, more than a scintilla of evidence exists when reasonable and fair-minded people could differ in their conclusions based on the evidence.  Id. 

B.        GM=s Summary Judgment

As noted above, GM sought summary judgment on the affirmative defense of limitations.  With exceptions not applicable here, A a person must bring suit for . . . personal injury . . . not later than two years after the day the cause of action accrues.@  Tex. Civ. Prac. & Rem. Code ' 16.003(a); Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998).  Generally, a cause of action accrues when a wrongful act causes an injury.  Childs, 974 S.W.2d at 36.  Here, it is undisputed that Heckel filed suit more than two years after she allegedly was injured.  Heckel, however, argues that her product-liability claim is not barred because it is governed by the 15-year statute of repose related to product-liability claims rather than the two-year statute of limitations applicable to personal-injury claims.  Compare Tex. Civ. Prac. & Rem. Code ' 16.012(b) (requiring that Aa claimant must commence a product- liability action against a manufacturer or seller of a product before the end of 15 years after the date of the sale of the product by the defendant@) with id. ' 16.003(a) (requiring a personal-injury suit to be filed within two years of accrual of the cause of action).

Heckel misapprehends the distinction between a statute of repose, on the one hand, and a statute of limitations, on the other.  See, e.g., Styers v. Harris County, 838 S.W.2d 955, 956 (Tex. App.CHouston [14th Dist.] 1992, writ ref=d) (AThis is not the first time a party has attempted to use a statute of repose to pursue a cause of action otherwise barred by the statute of limitations.@).  A statute of repose is designed to protect certain classes of actors, such as manufacturers, from the threat of claims arising years after a product is manufactured.  Zaragosa v. Chemetron Invs., Inc., 122 S.W.3d 341, 346 (Tex. App.CFort Worth 2003, no pet.).  A statute of repose differs from traditional statutes of limitations because it may potentially eliminate a right of action before it even accrues.  Trinity River Auth. v. URS Consultants, Inc.CTex., 889 S.W.2d 259, 263 (Tex. 1994).  AStatutes of repose do not typically shorten an existing limitations period; instead, they fix an outer limit beyond which no action can be maintained.@  Holubec v. Brandenberger, 111 S.W.3d 32, 37 (Tex. 2003).  Just as a statute of repose does not generally shorten any existing limitations period, this particular statute of repose Adoes not extend the limitations period within which a products liability action involving the product may be commenced under any other law.@  Tex. Civ. Prac. & Rem. Code ' 16.012(e).

Thus, sections 16.003 and 16.012 of the Civil Practice and Remedies Code must be considered together.  Cf. Styers, 838 S.W.2d at 957.  If an injury occurs more than 15 years after the product=s sale, the suit is barred by section 16.012(b).  Tex. Civ. Prac. & Rem. Code ' 16.012(b).  If the injury occurs during the 15-year period, a claimant must pursue her claim within that time period.  Cf. Styers, 838 S.W.2d at 957.  But, to fulfill the requirements of section 16.003, the lawsuit also must be filed within two years from the accrual of the cause of action.  Tex. Civ. Prac. & Rem. Code ' 16.003(a); Styers, 838 S.W.2d at 957.  Thus, A[a] plaintiff=s injury may be actionable under [a statute of repose], but nevertheless, barred by limitations under [the statute of limitations] if not prosecuted within two years.@  Klafehn v. Fain, 643 S.W.2d 227, 228 (Tex. App.CFort Worth 1982, writ ref=d n.r.e.). 

Here, Heckel filed her claim against GM more than two years after she suffered the injury that forms the basis of her claim against GM, i.e., more than two years after her claim accrued.  See Tex. Civ. Prac. & Rem. Code ' 16.003(a).  Accordingly, although Heckel=s product-liability claim against GM is not barred by the statute of repose, the applicable two-year statute of limitations nonetheless cuts off this claim.  Because GM has established as a matter of law that Heckel=s claim against it is barred by the statute of limitations, we overrule her first issue.

C.        Allen Samuel=s Summary-Judgment Motion

1.         Traditional Summary Judgment: Contract Claim

In its traditional motion for summary judgment, Allen Samuels noted that Heckel sought to recover damages for medical expenses, mental anguish, disfigurement, physical impairment, pain and suffering, lost wages, loss of earning capacity, and exemplary damages as a result of its alleged breach of contract.  Allen Samuels argued that such damages are time-barred under the two-year limitations period set forth in section 16.003(a) of the Civil Practice and Remedies Code and are not recoverable as damages for breach of contract, a cause of action for which the statute of limitations is four years.[4]  See, e.g., Stewart Title Guar. Co. v. Aiello, 941 S.W.2d 68, 72 (Tex. 1997) (mental-anguish damages not normally available for breach of contract); Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986) (exemplary damages are not available for breach of contract). Thus, as Heckel summarized the arguments in her response to the motion, A[t]he real issue . . . is whether some of the personal[-]injury type of remedies sought by the Plaintiff can be asserted under the four[-]year limitations period@ applicable to contract claims.

On appeal, Heckel argues only that A[a]s a result of the failure to either fix the airbag system, or warn of the recall, the airbag prematurely deployed and struck Appellant in her face, neck, arms, and upper torso.  That clearly constitutes evidence of injuries.@[5]  This argument does not address Athe real issue@ presented in the motion for summary judgment.  Because Heckel does not contend on appeal that the trial court erred in granting summary judgment on her contract claims on the grounds that personal-injury damages are not recoverable for breach of contract, she has waived error as to that claim.  See Ontiveros v. Flores, 218 S.W.3d 70, 71 (Tex. 2007) (per curiam); Jacobs v. Satterwhite, 65 S.W.3d 653, 655B56 (Tex. 2001) (per curiam).[6]  We therefore overrule Heckel=s second and third issues as they pertain to her claims for breach of contract.

2.         Traditional Summary Judgment: Implied Warranty Claim

Regarding Heckel=s claim for breach of implied warranty, Allen Samuels moved for summary judgment on the ground that (a) if the cause of action is asserted under the Uniform Commercial Code, then it is without merit because the UCC does not apply to a contract for services, and (b) if the claim is asserted under the Deceptive Trade Practices Act, then it is time-barred.  Both at trial and on appeal, however, Heckel has maintained that her warranty claims are based on the common law rather than statute.  Because the grounds on which Allen Samuels moved for traditional summary judgment do not apply to a common-law claim for breach of implied warranty, we sustain Heckel=s second issue with regard to that claim.

3.         No-Evidence Summary Judgment: Express Warranty Claim 

Allen Samuels also asserted there was no evidence that it made an express warranty to Heckel, but it did not challenge any other specific element of an express warranty cause of action.  Heckel responded by claiming that Allen Samuels made a representation to her about the services it would provide.  To overcome Allen Samuels= no-evidence claim, she provided a copy of her deposition testimony, in which the following colloquy occurred:

Q.        Who did you speak to at the dealership?

A.        I don=t know exactly his name.

Q.        What did he tell you that he was going to do to the vehicle?

A.        That he would inspect the vehicle and let me know if there is [sic] any problems with it besides - - because I brought it in thinking it would be just a tune-up or any other problems that was [sic] wrong with the vehicle, that he would inform me and let me know.

She also provided a copy of the invoice Allen Samuels provided to her, on which it is noted that Heckel was charged for a Afactory inspection.@  Taking this evidence as true, reasonable and fair-minded people could conclude that Allen Samuels represented to Heckel that it would conduct a factory inspection of her vehicle, and thus, would address any matters that were the subject of a recall.  Because Heckel brought forth more than a scintilla of probative evidence raising a genuine issue of material fact, a no-evidence summary judgment was improper on her claim for breach of an express warranty.  We therefore sustain that portion of her third issue.

IV.  Conclusion

In sum, we conclude that the applicable statute of limitations bars Heckel=s claims against GM for products liability and therefore affirm summary judgment as to Heckel=s claims against GM.  We also affirm summary judgment on Heckel=s breach-of-contract claim against Allen Samuels.  But, because Allen Samuels did not establish that Heckel=s warranties claims are barred by limitations and Heckel brought forth more than a scintilla of probative evidence in support of these claims, we reverse summary judgment as to her warranties claims against Allen Samuels, and we remand the case for further proceedings consistent with this opinion.  



/s/        Eva M. Guzman




Judgment rendered and Memorandum Opinion filed August 28, 2008.

Panel consists of Justices Yates, Guzman, and Brown.

[1]  Allen Samuels voluntarily non-suited its third-party claims against GM on March 12, 2007.

[2]  Heckel acknowledges in her brief that her negligence claims against Allen Samuels are barred by limitations.

[3]  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

[4]  See Tex. Civ. Prac & Rem. Code ' 16.051; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002) (per curiam).

[5]  Appellant=s Br. at 26 (record citations omitted).

[6]  In the trial court, Heckel argued that her injuries presented a claim for a Acontort,@ i.e., damages arising from the breach of a duty that arose from a contract.  But see JCW Elecs., Inc. v. Garza, 51 Tex. Sup. Ct. J. 1104, 2008 WL 2554942, at *3 (Tex. June 27, 2008) (noting that to determine whether a claim sounds in tort or in contract, the court examines the damages alleged: if the damages are purely economic, the claim sounds in contract, but a claim for personal-injury damages generally sounds in tort).  Heckel does not reurge this argument on appeal.