Opinion
14-22-00339-CV
05-18-2023
TOWN & COUNTY PARTNERSHIP, Appellant v. DYAD CONSTRUCTION, L.P., Appellee
On Appeal from the 215th District Court Harris County, Texas Trial Court Cause No. 2017-11642-A
Panel consists of Zimmerer, Spain, and Hassan Justices.
MEMORANDUM OPINION
Meagan Hassan, Justice.
Appellant Town & Country Partnership ("Town & Country") entered into a contract with appellee Dyad Construction, L.P. ("Dyad"), in which Dyad agreed to construct several retail buildings. After the project was complete, Town & Country made repeated repairs to correct water leaks in one of the newly-constructed buildings. Town & Country sued Dyad in 2017, asserting the water leaks were caused by construction defects.
Dyad filed a third-party petition adding five subcontractors to the lawsuit.
Dyad and one of the subcontractors filed separate motions seeking summary judgment on Town & Country's claims. The trial court granted both motions and, after a severance, Town & Country appealed. For the reasons below, we affirm.
Background
Factual Background
Town & Country owns a retail development in west Houston. In 2007, Town & Country hired Dyad to construct three new buildings and a parking garage at the development site for a total price of approximately $13 million. The parties signed American Institute of Architects ("AIA") Document A101-1997 to effectuate their agreement. AIA Document A101-1997 incorporated by reference AIA Document A201-1997, which set out the "General Conditions of the Contract for Construction" (together with Document A101, the "Agreement").
The American Institute of Architects publishes industry-standard documents for design and construction projects and Document A201 "is frequently adopted by reference into a variety of other agreements . . . to establish a common basis for the primary and second relationships on the typical construction project." In re D. Wilson Constr. Co., 196 S.W.3d 774, 777 n.1 (Tex. 2006) (orig. proceeding) (internal quotation omitted).
The construction project was completed in 2009. A "Certificate of Substantial Completion" was issued on January 30, 2009, which stated that the work "is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use." The Certificate of Substantial Completion also stated that Dyad's work was subject to a one-year warranty that commenced on the date of Substantial Completion.
In 2010, a water leak was discovered in one of the newly-constructed buildings. Town & Country engaged a company to investigate and determine the cause of the leak; the leak was repaired in November 2010. Additional leaks in the same building were reported and, each time, Town & Country engaged the same company to investigate and make repairs. From November 2010 through November 2013, ten water leaks were repaired in a single building - however, no two leaks were repaired at the same location. According to an affidavit from Diane Daleo, Town & Country's representative, she did not have "reason to think that the leaks we were experiencing at the Building were caused by anything other than normal building settlement or sealant failures."
In December 2013, a water leak was discovered at a previously-repaired location. Town & Country retained a new company, TDC Waterproofing & Restoration, LLC, to investigate the leak. That same month, TDC provided Town & Country with its report which, according to Daleo, "was the first indication that waterproof barrier defects existed underneath the exterior cladding of the Building." TDC recommended that Town & Country undertake an additional destructive demolition investigation on the building.
Town & Country retained American Construction Investigations ("ACI") to perform destructive testing of the building's exterior and interior in January 2014. ACI provided Town & Country with its initial report in March 2014. According to Daleo, this report was the first time Town & Country "knew or had reasonable means to discover that Dyad had caused the Building to be constructed with latent defects." Daleo said she informed Dyad of the water penetration issues and, in June 2014, a Dyad representative was present for a leak investigation.
In October 2014, Town & Country formally notified Dyad via letter "of the latent defect issues and investigation findings by both ACI and TDC." The letter requested that Dyad make available funds to cover the repair and remediation costs. In a second letter dated April 2015, Town & Country notified Dyad and its insurance carrier that repairs had been commenced and that Town & Country intended to seek reimbursement from Dyad.
After the repairs and remediation were complete, Town & Country sent Dyad a third letter in October 2016, against requesting a reimbursement. Town & Country received a written response from Dyad's counsel approximately one month later, in which Dyad "denied liability for the latent defects, refused to honor its warranty, and refused to pay for the costs Town & Country incurred related to the investigation, repair, and remediation caused by those latent defects."
Underlying Proceedings
Town & Country sued Dyad in February 2017 and asserted claims for breach of contract and breach of express warranty. Dyad responded and filed a third-party petition adding five defendants to the suit, including Texas Exterior Systems, LLC ("TES"). TES was a subcontractor on the construction project.
Town & Country filed a first amended petition in January 2020. In this petition, Town & Country alleged that Dyad's work on the project included three specific omissions: (1) the failure to install a Tyvek waterproofing system in the building walls; (2) the failure to install "end dams with kick out flashing"; and (3) the failure to "install weep holes in the window reveals." According to Town & Country, these omissions "created a trough for the water to flow from the exterior of the windows into the interior of the buildings." Town & Country's first amended petition also added a claim for breach of the implied warranty of good and workmanlike manner. Finally, Town & Country pleaded the doctrine of fraudulent concealment, alleging that Dyad "knew the cause of the water penetration at the buildings but failed to disclose it" and "took steps to conceal its wrongdoing."
TES filed a combined traditional and no-evidence summary judgment motion. See Tex. R. Civ. P. 166(c), (i). In its motion, TES asserted that (1) Town & Country's claims were barred by the applicable statute of limitations, and (2) the discovery rule did not render Town & Country's claims timely.
Dyad also filed a combined traditional and no-evidence summary judgment motion. See Tex. R. Civ. P. 166(c), (i). Like TES, Dyad asserted that Town & Country's claims were untimely and that the discovery rule did not apply. Dyad also argued that Town & Country could not produce any evidence to support the elements of its fraudulent concealment counter-defense.
On February 22, 2021, the trial court signed an order granting TES's summary judgment motion. Town & Country filed a notice of appeal with respect to that judgment. This court dismissed the appeal for want of jurisdiction, concluding that "[t]he order being appealed does not dispose of all the parties and claims." Town & Country P'ship v. Dyad Constr., L.P., No. 14-21-00162-CV, 2021 WL 2252142, at *1 (Tex. App.-Houston [14th Dist.] June 3, 2021, no pet.) (mem. op.).
After the appeal was dismissed, the trial court signed an order granting Dyad's summary judgment motion on December 17, 2021. Dyad and TES subsequently filed a joint motion to sever Town & Country's claims against Dyad. The trial court signed an April 11, 2022 order granting the joint motion to sever, creating a final judgment. Town & Country filed a notice of appeal.
Analysis
On appeal, Town & Country challenges the trial court's orders granting TES's and Dyad's summary judgment motions. Specifically, Town & Country asserts:
1. Dyad and TES failed to conclusively establish that Town & Country's claims were barred by the applicable statute of limitations;
2. the trial court erred to the extent it determined that the implied warranty of good and workmanlike manner was superseded by the
Agreement's express warranties; and
3. Town & Country brought forth sufficient evidence to maintain its breach of contract claim and fraudulent concealment counter-defense.
We address these contentions individually, beginning with the summary judgment standard of review.
I. Standard of Review
Where, as here, the trial court's summary judgment does not state the grounds for its ruling, we affirm the judgment if any of the grounds advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Salas v. Fluor Daniel Servs. Corp., 616 S.W.3d 137, 144 (Tex. App.-Houston [14th Dist.] 2020, pet. denied). We review the propriety of a summary judgment de novo. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). The party seeking summary judgment may raise both no-evidence and traditional grounds in a single motion. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Salas, 616 S.W.3d at 144.
In a no-evidence summary judgment motion, the movant asserts that there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof at trial. See Tex. R. Civ. P. 166a(i); see also Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Tex.R.Civ.P. 166a(i). The nonmovant is "not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements." Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam) (internal quotation omitted). A fact issue exists if the nonmovant brings forth evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).
For a traditional summary judgment motion, the movant must demonstrate that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); see also M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). This requires the movant to conclusively negate at least one element of each of the nonmovant's claims or conclusively establish each element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). "Evidence is conclusive only if reasonable people could not differ in their conclusions." City of Keller, 168 S.W.3d at 816. If the movant establishes its right to summary judgment, the burden shifts to the nonmovant to come forward with competent controverting evidence raising a genuine issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Salas, 616 S.W.3d at 145.
II. Dyad Conclusively Established that the Applicable Statute of Limitations Bars Town & Country's Breach of Contract and Breach of Express Warranty Claims
In its traditional summary judgment motion, Dyad asserted that Town & Country's breach of contract and breach of express warranty claims were barred by the Agreement's limitations provision. In relevant part, this provision states:
When a party files both a no-evidence and a traditional summary judgment motion, we generally consider the no-evidence points first. See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017). However, because our analysis of the no-evidence points is necessary only if we sustain Town & Country's limitations issue, we begin with the grounds raised in Dyad's traditional summary judgment motion.
§ 13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
§ 13.7.1 As between the Owner and Contractor:
.1 Before Substantial Completion. As to acts or failures to act
occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion[.]
AIA Document A101-1997 defines Town & Country as the "Owner."
AIA Document A101-1997 defines Dyad as the "Contractor."
Referencing this accrual provision, Dyad asserts that the limitations period on Town & Country's claims began to run on the date of "Substantial Completion" which, as set out in the Certificate of Substantial Completion, was January 30, 2009. Therefore, because Town & Country did not file the underlying suit until February 2017, the applicable statute of limitations on its claims had expired.
Because our analysis of this argument depends on the Agreement's language, we begin with an overview of the relevant principles of contract interpretation.
We consider a contract's language as a whole, aiming to ascertain and give effect to the written expression of the parties' intent. Rosetta Res. Operating, LP v. Martin, 645 S.W.3d 212, 218-19 (Tex. 2022); Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc., 473 S.W.3d 296, 305 (Tex. 2015). To that end, we afford contract terms their plain, ordinary, and generally-accepted meanings given the context in which they are used, unless the contract shows them to be used in a technical or different sense. Rosetta Res. Operating, LP, 645 S.W.3d at 219. "Objective manifestations of intent control, not what one side or the other alleges they intended to say but did not." TotalEnergies Petrochemicals & Refining USA, Inc. v. Kinder Morgan Petcoke, LP, 658 S.W.3d 647, 663 (Tex. App.-Houston [14th Dist.] 2022, no pet.).
We also aim to construe contracts from a utilitarian standpoint, keeping in mind the particular activity sought to be served; we avoid, when possible, a construction that is unreasonable, inequitable, or oppressive. Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam). We consider the entire writing to harmonize and give effect to all provisions so that none will be rendered meaningless. J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). Similarly, we avoid a construction that would lead to absurd results. Kourosh Hemyari v. Stephens, 355 S.W.3d 623, 626 (Tex. 2011) (per curiam). If we determine that the language "can be given a certain or definite legal meaning or interpretation, then the contract is not ambiguous and we will construe it as a matter of law." Barrow-Shaver Res. Co. v. Carrizo Oil & Gas, Inc., 590 S.W.3d 471, 479 (Tex. 2019).
Turning to limitations, breach of contract and breach of express warranty claims are both subject to a four-year limitations period. See Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (providing a four-year limitations period for "[e]very action for which there is no express limitations period, except an action for the recovery of real property, [to] be brought not later than four years after the day the cause of action accrues"); see also Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 707 (Tex. 2021); Austin Co. v. Vaughn Bldg. Corp., 643 S.W.2d 113, 115-16 (Tex. 1982).
Here, Dyad asserts that Town & Country's claims are premised on acts or failures to act that occurred before the relevant date of Substantial Completion and, therefore, the applicable statute of limitations began to run on January 30, 2009. We agree.
Town & Country's breach of contract and express warranty claims are premised on three alleged omissions on Dyad's part: (1) failing to install the Tyvek waterproofing system inside the building walls; (2) failing to install end dams with kick out flashing; and (3) failing to install weep holes in the window reveals. These alleged omissions would have taken place during the building's construction - thus occurring "prior to the relevant date of Substantial Completion." Accordingly, under the plain language of the Agreement, the statute of limitations applicable to Town & Country's claims "commence[d] to run" on the "date of Substantial Completion." As set out in the Certificate of Substantial Completion, this date was January 30, 2009.
Both claims were subject to a four-year limitations period that expired on January 30, 2013. Because Town & Country did not assert its claims before this date, the claims are barred by the applicable statute of limitations.
This conclusion aligns with that reached in Black Diamond Hope House, Inc. v. U & I Investments, LLC, No. K15C-12-034 JJC, 2018 WL 2331849 (Del. Super. Ct. May 22, 2018). There, the parties entered into a construction contract identical to the one at issue here that also included the "General Conditions" set out in AIA Document A201-1997. See id. at *2, *4 (noting that the parties "incorporate[d] by reference the 1997 version of A201"). After the construction project was completed, the plaintiff sued the defendant construction company, asserting that the defendant performed "substandard work" that caused "significant leaks." Id. at *1. Analyzing section 13.7.1.1, the court held that the provision "expressly defines the accrual of all relevant causes of action to be the 'substantial completion' of the project." Id. at *5. Because there was "no material issue of fact regarding that date," the court concluded the plaintiff's claims were asserted outside the applicable three-year limitations period that began to run on the day of the project's substantial completion. Id. at *5-6.
Town & Country raises two arguments challenging this conclusion. First, Town & Country asserts that the discovery rule tolls the applicable statute of limitations, rendering its suit timely.
Generally, a claim accrues - and the statute of limitations begins to run - when a wrongful act causes some legal injury, even if the fact of injury is not discovered until later and even if all resulting damages have not yet occurred. Murphy v. Campbell, 964 S.W.2d 265, 270 (Tex. 1997); Markwardt v. Tex. Indus., Inc., 325 S.W.3d 876, 882 (Tex. App.-Houston [14th Dist.] 2010, no pet.). The discovery rule, when applicable, tolls accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the cause of action. HECI Expl. Co. v. Neel, 982 S.W.2d 881, 886 (Tex. 1998); Mustafa v. Americo Energy Res., LLC, 650 S.W.3d 760, 764 (Tex. App.- Houston [14th Dist.] 2022, pet. denied).
But the discovery rule is limited to "circumstances where the nature of the injury is inherently undiscoverable and the evidence of injury is objectively verifiable." Cosgrove v. Cade, 468 S.W.3d 32, 36 (Tex. 2015). An injury is not inherently undiscoverable when it could be discovered through the exercise of reasonable diligence. BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59, 66 (Tex. 2011). Although some contract breaches may satisfy this showing, "those cases should be rare, as diligent contracting parties should generally discover any breach during the relatively long four-year limitations period provided for such claims." Via Net v. TIG Ins. Co., 211 S.W.3d 310, 315 (Tex. 2006) (per curiam).
Several out-of-state courts considering the intersection between AIA Document A201-1997 section 13.7.1.1's accrual language and the discovery rule have concluded that the contractual provision abrogates the discovery rule. See, e.g., Harbor Ct. Assocs. v. Leo A. Daly Co., 179 F.3d 147, 150-51 (4th Cir. 1999); Brisbane Lodging, L.P. v. Webcor Builders, Inc., 157 Cal.Rptr.3d 467, 473-74 (Cal.Ct.App. 2013); Coll. of Notre Dame of Md., Inc. v. Morabito Consultants, Inc., 752 A.2d 265, 274-76 (Md. Ct. Spec. App. 2000); Trinity Church v. Lawson-Bell, 925 A.2d 720, 724-28 (N.J.Super.Ct.App.Div. 2007); Gustine Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc., 892 A.2d 830, 836-37 (Pa. Super. Ct. 2006).
The reasoning of these cases is well-represented by Harbor Court Associates, 179 F.3d at 150-51. There, the parties signed a construction contract that contained accrual language identical to that here:
As between the parties to this Agreement: as to all acts or failures to act by either party to this Agreement, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the relevant Date of Substantial Completion of the Work[.]Id. at 148 (emphasis added). Nine years after the project was completed, the developer sued the architect for defective design. Id. at 149. The architect asserted that the suit was time-barred by the provision quoted above; the developer argued that the discovery rule rendered its suit timely. Id. at 150.
Analyzing this contractual language, the court stated that, "rather than rely on the 'discovery rule,' which prolongs the parties' uncertainty whether or if a cause of action will lie, the parties to this contract sought to limit that period of uncertainty by mutual agreement to a different accrual date." Id. at 150-51. Holding the parties to these terms was particularly appropriate here, the court reasoned, because "the parties to the agreement are sophisticated business actors who sought, by contract, to allocate business risks in advance." Id.; see also Brisbane Lodging, L.P., 157 Cal.Rptr.3d at 474 ("sophisticated parties should be allowed to strike their own bargains and knowingly and voluntarily contract in a manner in which certain risks are eliminated and, concomitantly, rights are relinquished").
We agree with these authorities' application of the relevant contractual language. Here too, the Agreement was freely entered into by parties engaged in a sophisticated commercial construction project. The accrual language in section 13.7.1.1 is clear that, for failures to act that occurred before the date of Substantial Completion, the applicable statutes of limitation would commence "in any and all events not later than such date of Substantial Completion." By tying the commencement of limitations to a certain date, the parties negotiated to avoid the uncertainty surrounding the discovery rule for the security of knowing the date beyond which Dyad's potential liability would expire. Therefore, the discovery rule cannot toll the statute of limitations applicable to Town & Country's breach of contract and breach of express warranty claims. See Harbor Ct. Assocs., 179 F.3d at 150-51; Brisbane Lodging, L.P., 157 Cal.Rptr.3d at 473-73; Coll. of Notre Dame of Md., Inc., 752 A.2d at 274-76; Trinity Church, 925 A.2d at 724-28; Gustine Uniontown Assocs., Ltd.., 892 A.2d at 836-37.
Second, Town & Country asserts that its breach of contract and breach of express warranty claims accrued according to the terms of section 13.7.1.3, which states:
After Final Certificate for Payment. As to acts or failures to act occurring after the relevant date of issuance of the final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of actions shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the Contractor pursuant to any Warranty provided under Section 3.5[.](emphasis added). Section 3.5 provides as follows:
The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and
authorized, may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Architect, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.
Reading these provisions together, Town & Country argues that the applicable limitation period "did not begin to run until Dyad refused to honor its warranty by its letter of November 28, 2016." Town & Country filed the underlying suit approximately three months later.
We do not find this argument persuasive. The contractual warranties in the parties' Agreement were subject to other provisions that limited their applicability. For example, section 9.8.4 provided the date that the contractual warranties would commence:
When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work of insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion.(emphasis added). The Certificate of Substantial Completion states the Agreement's warranties commenced on January 30, 2009, and applied for a one-year period. Accordingly, any warranties applicable to the project would have expired as of January 30, 2010, one year after the project's Substantial Completion. Town & Country's repair and reimbursement claims - which first were brought to Dyad's attention in 2013 - fell well outside this period.
Town & Country argues that the Certificate of Substantial Completion's one-year warranty period is void under Texas Civil Practice and Remedies Code section 16.070(a). We disagree.
In relevant part, section 16.070(a) states:
[A] person may not enter into a stipulation, contract, or agreement that purports to limit the time in which to bring suit on the stipulation, contract, or agreement to a period shorter than two years. A stipulation, contract, or agreement that establishes a limitations period that is shorter than two years is void in this state.Tex. Civ. Prac. & Rem. Code Ann. § 16.070(a). By its plain language, the time limitation imposed in the Certificate of Substantial Completion does not "limit the time in which to bring suit." Rather, the one-year limitation serves only to specify when the warranty claim must be presented to Dyad - not when a lawsuit must be filed. See e.g., Giant Eagle Inc. v. Excentus Corp., No. 3:14-CV-1195-B, 2014 WL 12531173, at *9-10 (N.D. Tex. Aug. 2, 2014) (provision stating that "[a]ll representations, warranties, covenants, and obligations of the Parties shall survive the Closing for a period of 18 months thereafter" did not create a contractual period of limitations voided by section 16.070). Therefore, the Certificate of Substantial Completion's one-year warranty provision is not void under section 16.070. Because Town & Country did not present its claims to Dyad within this one-year period, it cannot rely on Dyad's November 2016 refusal as the "failure to act" giving rise to its breach of contract and breach of express warranty claims.
In sum, we conclude that Dyad conclusively established that Town & Country's breach of contract and breach of express warranty claims are barred by the applicable statute of limitations. See Tex. R. Civ. P. 166a(c). We overrule Town & Country's first issue.
III. The Agreement's Express Warranty Superseded Any Implied Warranty of Workmanship
In its second issue, Town & Country asserts the trial court erred when it determined that the implied warranty of good and workmanlike manner was superseded by the Agreement's express warranties and remedies.
The implied warranty of good workmanship is a common law creation. See Parkway Co. v. Woodruff, 901 S.W.2d 434, 438 (Tex. 1995). However, an implied warranty of good workmanship can be superseded by an express warranty. See Centex Homes v. Buecher, 95 S.W.3d 266, 273-75 (Tex. 2002), superseded by statute on other grounds as stated in Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 913 n.11 (Tex. 2007).
In Centex Homes, the supreme court considered whether the implied warranty of good and workmanlike construction owed by builders of new homes could be disclaimed. Id. The court explained that the warranty of good workmanship is a "gap filler" or "default warranty"; "it applies unless and until the parties express a contrary intention." Id. at 273. Thus, while parties cannot "simply disclaim" the warranty, the parties' agreement may supersede the implied standard for workmanship if it "provides for the manner, performance, or quality" of the work. Id. at 274-75. There, the court held that any implied warranty was superseded by the sales contract's express limited warranty against defects in workmanship and materials. Id. at 268; see also Thoede v. Wortham, No. 05-17-00191-CV, 2018 WL 3342692, at *7-8 (Tex. App.-Dallas July 9, 2018, no pet.) (mem. op.) (implied workmanship warranty superseded by express warranty that "fully warrant[ed] workmanship and materials on all jobs for seven days after service performed"); Richardson v. Duperier, No. 14-04-00388-CV, 2005 WL 831745, at *3 (Tex. App.-Houston [14th Dist.] Apr. 12, 2005, no pet.) (mem. op.) (implied warranty of good workmanship superseded by express warranty guaranteeing the home against "failure due to defective workmanship").
Here too, the express warranty contained in the parties' Agreement provided for the manner, performance, or quality of the work, thus superseding an implied warranty of good workmanship. Specifically, section 3.5 warrants that "materials and equipment furnished under the Contract will be of good quality and new"; "the Work will be free from defects not inherent in the quality required or permitted"; and "the Work will conform to the requirements of the Contract documents." This description provided an objective standard by which Dyad's workmanship could be measured. Because this warranty is sufficiently specific, it supersedes any implied workmanship warranty. See Centex Homes, 95 S.W.3d at 273-75; Thoede, 2018 WL 3342692, at *7-8; Richardson, 2005 WL 831745, at *3.
We overrule Dyad's second issue.
IV. Town & Country Did Not Bring Forth Sufficient Evidence to Support Its Fraudulent Concealment Counter-Defense
In its third issue, Town & Country asserts that it brought forth sufficient evidence to satisfy the evidentiary burden for its breach of contract claim and fraudulent concealment counter-defense. Because we concluded above that Town & Country's breach of contract claim is barred by the applicable statute of limitations, we only consider Town & Country's argument with respect to its fraudulent concealment counter-defense.
The fraudulent concealment doctrine is an affirmative defense to limitations that resembles equitable estoppel. Doe v. Roman Catholic Archdiocese of Galveston-Houston, 362 S.W.3d 803, 810 (Tex. App.-Houston [14th Dist.] 2012, no pet.). The doctrine estops a defendant from relying on the defense of limitations if the defendant was under a duty to make a disclosure but fraudulently concealed the existence of the cause of action from the party to whom it belongs. B. Mahler Interests, L.P. v. DMAC Constr., Inc., 503 S.W.3d 43, 54 (Tex. App.- Houston [14th Dist.] 2016, no pet.).
To prove fraudulent concealment, the plaintiff must demonstrate that the defendant had (1) actual knowledge that a wrong occurred; (2) a duty to disclose the wrong; and (3) a fixed purpose to conceal the wrong. Id. at 54. But the doctrine defers accrual only until the plaintiff learns of facts, conditions, or circumstances which would cause a reasonably prudent person to make inquiry which, if pursued, would lead to discovery of the concealed cause of action. Doe, 362 S.W.3d at 810.
Here, Town & Country failed to bring forth any summary judgment evidence showing Dyad had a "fixed purpose to conceal" the alleged construction defects. Town & Country's evidence shows the following interactions with Dyad or its representatives during the pendency of the leak repairs:
• According to Daleo's affidavit, she received ACI's report in March 2014; only after receiving this report did she "kn[ow] or ha[ve] reasonable means to discover that Dyad had caused the Building to be constructed with latent defects."
• Daleo said she informed Dyad of the water penetration issues and a Dyad representative was present at the dismantling of the building in June 2014. Daleo also recalled a meeting with Dyad's principal to review the results from ACI's investigation. According to Daleo, "at no time during her [oral] communications with Dyad . . . did Dyad ever deny liability, refuse to honor its warranty, or refuse to cover the investigation repair or remediation costs." Daleo said Dyad's principal referred her to the company's insurance adjuster.
• Daleo sent Dyad a letter dated October 3, 2014, informing Dyad of the leak investigation results and demanding that Dyad make funds available to timely cover the repair and remediation.
• Daleo sent Dyad a second letter dated April 18, 2015, notifying Dyad
and its insurance carrier that the repairs had commenced and that Town & Country intended to seek reimbursement.
• Daleo sent Dyad a third letter on October 31, 2016, requesting reimbursement of the costs incurred in the remediation.
• On November 28, 2016, Daleo received a letter from Dyad's counsel stating that Dyad "denied liability for the latent defects, refused to honor its warranty, and refused to pay for the costs Town & Country incurred related to the investigation, repair and remediation caused by those latent defects."
This evidence does not show that Dyad acted with the intent to conceal the alleged construction defects. Nor does it show that Dyad denied the defects' existence - only that it denied liability for them. See, e.g., Brent v. Daneshjou, No. 03-04-00225-CV, 2005 WL 2978329, at *6 (Tex. App.-Austin Nov. 4, 2005, no pet.) (mem. op.) (affirming summary judgment on similar grounds, the court pointed out that there was no "evidence that [the defendant] guided construction and repairs intending to conceal any misconstruction or intentionally misled [the plaintiff] through information or misinformation intending to conceal any misconstruction"). Therefore, this evidence did not raise an issue of fact with respect to this element of Town & Country's fraudulent concealment counter-defense.
We overrule Town & Country's third issue.
Conclusion
We affirm the trial court's April 11, 2022 final judgment.