Coffey v. Young

704 S.W.2d 591
Court of Appeals of Texas·Decided February 26, 1986·No. 2-85-160-CV·Published·Cited by 2 cases

Opinion

704 S.W.2d 591 (1986)

J.M. COFFEY, Jr. and wife, Barbara Coffey, Appellants,
v.
Emery YOUNG d/b/a Emery Young Associates, Appellee.

No. 2-85-160-CV.

Court of Appeals of Texas, Fort Worth.

February 26, 1986.

*592 McLean, Sanders, Price, Head & Ellis, and Kenneth L. McAlister, Fort Worth, for appellants.

Shannon, Gracey, Ratliff & Miller, and D. Michael Wallach, Fort Worth, for appellee.

Before FENDER, C.J., and ASHWORTH and HOPKINS, JJ.

OPINION

ASHWORTH, Justice.

This is an appeal from a take nothing judgment rendered against appellants in their breach of contract and deceptive trade practice suit against their architect who provided them with home remodeling plans.

Judgment reversed and cause remanded for a new trial.

Appellants desired to have an older home remodeled, including construction of a second floor. Appellee furnished plans for the remodeling. The plans were drawn on the premise that the existing house was of brick veneer construction—the inner wooden wall being the support for the roof. A contractor was employed to perform the work and he discovered the house was of full masonry construction—the outer wall providing support for the roof and such outer wall so deteriorated it could not be utilized. The condition was such that it rendered remodeling unfeasible and appellee recommended the existing house be demolished.

Appellants' suit alleged breach of contract, violation of the Deceptive Trade Practices Act, and negligence on the part of appellee; they sought money damages and attorney fees. The case was tried to a jury which found:

1. Appellee agreed to inspect the premises to determine what remodeling was feasible, but that he did not fail to make such inspection.

2. Appellee agreed to determine what remodeling was feasible but he did not make an express warranty that he would make such determination and he did not fail to make such determination.

3. Appellee represented his plans would be suitable for such remodeling; the plans were not suitable and were a producing cause of the inability of appellants to use the plans.

4. Appellee did not fail to inspect to determine what remodeling was feasible.

5. On or before December 26, 1977, appellants knew, or should have known, the plans could not reasonably be used for the remodeling.

6. The inability of the plans to be used was not the result of a bona fide error.

7. Appellants sustained $5,500.00 in damages, and $4,000.00 in attorney fees through trial. The jury found zero attorney fees for appeal to the Court of Appeals and zero for appeal to the Supreme Court of Texas.

The trial court rendered judgment that appellants take nothing by their suit, the judgment stating that the verdict of the jury was for appellee. Such judgment and statement necessarily includes a determination by the trial court that appellants' cause of action was barred by the two-year statute of limitations as alleged by appellee; such determination is the subject of appellants' first point of error.

In order to consider appellants' first point of error we must first determine upon what theory appellants would be entitled to recover if there were no limitations question. The only issues answered in a manner entitling appellants to recover are:

8. Appellee represented his plans would be suitable.

9. The plans were not suitable.

10. The unsuitability was a producing cause.

15. (Defensive issue) The inability of use of the plans was not the result of a bona fide error.

The answers to these special issues would entitle appellants to recover on the theory of breach of contract and on the *593 theory of violation of the Texas Deceptive Trade Practices—Consumer Protection Act. We must now determine how recovery under either theory is affected by the limitations question.

A cause of action for misrepresentation is considered an action on a debt not evidenced by an instrument in writing and subject to the provisions of former TEX.REV.CIV.STAT.ANN. art. 5526(4) (Vernon 1958), repealed by Act of June 16, 1985, ch. 959, sec. 9(1), 1985 Tex.Sess.Law Serv. 7043, 7218 (Vernon) (presently located at TEX.CIV.PRAC. & REM.CODE ANN. sec. 16.004 (Vernon Pamph.1986)). Vergal Bourland Home App. v. Altheimer & Baer, Inc., 362 S.W.2d 201, 203 (Tex.Civ.App.—Fort Worth 1962, writ ref'd n.r.e.); Lacy v. Carson Manor Hotel, 297 S.W.2d 367, 370 (Tex.Civ.App.—Dallas 1956, writ ref'd n.r.e.).

Prior to August 27, 1979, a cause of action under the Deceptive Trade Practices Act, TEX.BUS. & COM.CODE ANN. sec. 17.41-17.62, (Vernon Pamph.1986), was governed by art. 5526(4) unless the representation was evidenced by an instrument in writing. Marcotte v. American Motorists Ins. Co., 709 F.2d 378, 380 (5th Cir.1983); Jim Walter Homes v. Chapa, 614 S.W.2d 838, 840-41 (Tex.Civ.App.—Corpus Christi 1981, writ ref'd n.r.e.)

The cause of action under either theory was governed by the limitations period provided by art. 5526(4) as it existed at the time of the accrual of the cause of action, on or before December 26, 1977, as found by the jury. At that time such article provided that actions for debts not evidenced by an instrument in writing should be commenced within two years of the accrual of the cause of action. Such article was amended effective August 27, 1979, deleting this provision, and art. 5527 was amended to provide a four-year limitations period to all actions for debt. See Law of Feb. 5, 1841, 1841 Tex.Gen.Laws 163, 2 H. GAMMEL, LAWS OF TEXAS 627 (1898), amended by Act of June 13, 1979, ch. 716, sec. 1, 1979 Tex.Gen.Laws 1768, 1768-69. Appellants commenced their suit against appellee on December 27, 1979.

Section 17.56A was added to the Deceptive Trade Practices Act, TEX.BUS. & COM.CODE ANN. (Vernon Pamph.Supp.1986), effective August 27, 1979. Such section provides a two-year statute of limitations for actions brought under the act (the time may be extended for 180 days if the delay was knowingly caused by the defendant).

Appellants' lawsuit was not commenced within two years of the accrual of their cause of action, their original petition being filed on December 27, 1979. However, at the time of the filing of their petition the limitations statute provided suits for debt should be commenced within four years of their accrual. See art. 5527. Appellants' first point of error contends the trial court erred in rendering judgment for appellees because neither of the two causes of action involved in appellants' suit was barred by the two-year statute. Appellants argue their suit is governed by the 1979 amendment to art. 5527, increasing the limitations period to four years.

The question before us with regard to appellants' common law cause of action was addressed in National Mar-Kit, Inc. v. Forest, 687 S.W.2d 457 (Tex.App.—Houston [14th Dist.] 1985, no writ). While a note had been executed in that case, the trial proceeded on the basis of an oral obligation to repay a loan. The loan was made on November

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