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Scott Fish v. Marsters Company, Frank H. Marsters, Individually and Pedigo Services, Inc. ( 2007 )


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  • Affirmed and Memorandum Opinion filed May 17, 2007

    Affirmed and Memorandum Opinion filed May 17, 2007.

     

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-06-00129-CV

    ____________

     

    SCOTT FISH, Appellant

     

    V.

     

    MARSTERS COMPANY, FRANK H. MARSTERS, INDIVIDUALLY, AND PEDIGO SERVICES, INC., Appellees

     

      

     

    On Appeal from the 268th District Court

    Fort Bend County, Texas

    Trial Court Cause No. 02-CV-123439A

     

      

     

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

    This is an appeal from summary judgments in which the trial court dismissed claims asserted by a homeowner against the general contractor that built his house, the owner of the general contractor, and one of the subcontractors.  The homeowner, who was not the original owner, asserted claims which allegedly arose from the original construction and from repair efforts made after he bought the home.  The trial court granted summary judgment and dismissed all the homeowner=s claims against the general contractor and its owner and dismissed some of the claims against the subcontractor.  The trial court  severed some of the homeowner=s claims into this case to make the summary judgments final.  We conclude that some of the homeowner=s arguments on appeal are directed at claims that were not severed into this case.  As to the remaining claims, we conclude that, with one exception, the homeowner either has not challenged all independent summary-judgment grounds or has waived any error.  As to the homeowner=s negligence claim against the general contractor and its owner, we conclude that the trial court properly granted summary judgment based on the affirmative defense of limitations.  Accordingly, we affirm the trial court=s judgment.

    I.  Factual and Procedural Background

    A.      Original Construction and Purchase of the House

    Appellee Marsters Company, owned by Frank Marsters, built a home in Sugar Land, Texas (hereinafter the AHouse@).  Marsters Company was the general contractor during the construction of the House, and it hired several subcontractors, one of which was appellee Pedigo Services, Inc., a company that performed the stucco, roofing, and flashing work during the initial construction.  Marsters sold the House to Jitendra Patel on January 20, 1999.

    B.      Subsequent Sale and Inspection of the House

    Approximately fourteen months later, in early 2000, appellant Scott Fish became interested in purchasing the House.   Although Marsters does not recall ever getting a call from Fish, Fish testified during his deposition that before buying the House, he contacted Marsters to inquire about certain water stains that he had observed during his initial visual inspection of the House.   Fish had noted a large stain in the sheetrock in the first-floor ceiling outside the den door and underneath the deck.  He also had seen a stain in the sheetrock running up and down the left side of a window in the den.  Fish testified that Marsters, without inspecting the House to see the stains himself, told Fish over the phone that the stain under the deck most likely was caused by moisture and wind coming off the lake behind the House and that this problem could be corrected by caulking the window.  As for the stains on the left side of the den window, Fish stated that Marsters informed him that they probably were caused by lack of caulking.[1] Fish admitted that Marsters did not specifically state that there were no other possible reasons for the stains.    

    Despite his alleged concerns, Fish entered into an earnest money contract to purchase the House from Patel.  Approximately ten days later, on February 17, 2000, Fish obtained a formal inspection of the House. The inspector stated that there was evidence of water or moisture penetration at the den window and that there was evidence of moisture stains on the ceiling at the rear patio.  As to the latter stain, the inspector suggested that Fish remove the upper balcony decking for a further inspection.  Fish, however, took no further action in response to the inspector=s recommendations.  Furthermore, Fish did not request that Patel repair the problems; instead, he proceeded with the purchase of the House the following month.  The closing for the sale of the House occurred in March 2000.

    C.      Repair Work on the House

    After buying the House, Fish spent a few months remodeling the home in areas that did not pertain to the stains that Fish previously had noticed.  During this period, Fish had a swimming pool installed and arranged for other work to be performed, including replacement of sheetrock, installation of slate decking around the swimming pool and second-floor balcony, landscaping, and the addition of a room above the garage which required major structural reconfiguration of the garage ceiling joists.  Fish also had all of the interior cabinetry, countertops, plumbing fixtures, and flooring removed.  This extensive remodeling work was completed by Mike McCarty of Fish Construction, Inc., and it was supervised by both Fish and Morris Ashley of Ashley Enterprises.  During this time, Fish did not investigate or address any of the concerns raised in the inspection report regarding the ceiling and wall stains. 

     Finally, in July 2000, after finding evidence of rotting wood around the den window,  Fish contacted Marsters about the water damage, including but not limited to, the windows and the stucco.  Fish asked Marsters to come and inspect the property and stated that repairs were needed.  After Marsters inspected the property around the middle of July, Pedigo was contacted to come and inspect the property.  Soon thereafter, Pedigo visited the House and determined that the stucco on the back of the House had to be removed and replaced.   Pedigo agreed, at its own cost, to replace the stucco.  Pedigo prepared and provided Fish with a three-page remediation proposal. 

    Although Fish accepted this proposal, Fish demanded that all work be done under the supervision of French Engineering, a company Fish had hired.   After several months, this situation proved to be unworkable, and Pedigo offered to pay Fish $9,000 to finish the job himself.  Fish declined this offer.   Pedigo then asked Marsters to finish the job. Marsters declined.  Fish then hired another contractor to complete the repairs.  Fish contends that these repairs cost him over $400,000.

    D.      Homeowner=s Claims Against the General Contractor and Subcontractor

    On March 21, 2002, Fish filed a lawsuit against Marsters Company and Frank Marsters, Individually (hereinafter collectively AMarsters@) and Pedigo, alleging, among other things, that Marsters and Pedigo were negligent in the original construction of the House and in subsequently repairing the House.[2] Marsters filed a motion for summary judgment asserting both traditional and no-evidence grounds.  The trial court granted Marsters= motion without specifying the grounds for its ruling.  Pedigo later filed a traditional motion for summary judgment.   Fish filed a motion to sever his claims against Pedigo from his claims against Marsters, so as to make the trial court=s summary judgments final.  The trial court later granted Pedigo=s motion for summary judgment in part and denied it in part,  and at the same time, the trial court granted a severance to make its summary judgments final.  In its order, the trial court severed into this case all of Fish=s claims against Marsters and his claims against Pedigo as to the original construction of the House, while leaving in the original case Fish=s claims against Pedigo as to subsequent repairs to the House.  The trial court stayed the nonsevered case pending the appeal in this case.  The trial court thereafter signed a new order granting Pedigo=s traditional motion for summary judgment as to all claims pending in this case without specifying the grounds for its ruling. 

    II.  Issues Presented

    Appealing the trial court=s summary judgments in favor of Marsters and Pedigo, Fish asserts the following issues:

    1.       The trial court erred in granting summary judgment when fact issues existed on all of his claims against Marsters and Pedigo.

    2.       The trial court erred in failing to construe each fact and inference in Fish=s favor.

    3.       The trial court erred in granting summary judgment because there is an issue of fact as to whether Fish=s claim for fraud and misrepresentation accrued prior to his purchase of the House, at the time of a misrepresentation, or when Fish acted on the misrepresentation and purchased the House.

    4.       The trial court erred in granting summary judgment because there is an issue of fact as to whether the discovery rule is negated by a routine pre-purchase home inspection that failed to reveal the real problem with the House.

    5.       The trial court erred in granting summary judgment because there is a fact issue as to whether Pedigo and Marsters are immunized from fraud  and misrepresentation claims because Fish undertook his own inspection of the House.

    6.       The trial court erred in granting summary judgment because there is a fact issue as to whether Fish=s original inspection precluded liability of Pedigo and Marsters and whether Pedigo=s and Marster=s actions in repairing the House created liability.

    7.       The trial court erred in granting summary judgment because there is a fact issue as to whether Pedigo and Marsters are liable to Fish even though Fish undertook his own inspection of the House.

    8.       The trial court erred in granting summary judgment because there are fact issues as to whether Fish was required to pay for the repairs to bring  a breach-of-contract claim or claim under the Texas Deceptive Trade Practices Act (ADTPA@) and whether pre-existing warranty obligations and forbearance from suit by Fish constitute sufficient consideration.

    9.       The trial court erred in granting summary judgment because there are issues of fact as to whether Pedigo and Marsters can be held liable in connection with the repairs to the House even though the allegedly defective repairs were inspected by an engineer representing Fish.

     

    III. Standards of Review

    In reviewing a traditional summary judgment, we consider whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law.  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  To be entitled to 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).  Under this traditional standard, we take as true all evidence favorable to the nonmovant, and we make all reasonable inferences in the nonmovant=s favor.  Dolcefino v. Randolph, 19 S.W.3d 906, 916 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  If the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment.  Id.

    In reviewing a no‑evidence summary judgment, we ascertain whether the nonmovant pointed out summary‑judgment evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no‑evidence motion.  Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206B08 (Tex. 2002). We take as true all evidence favorable to the nonmovant, and we make all reasonable inferences therefrom in the nonmovant=s favor.  Dolcefino, 19 S.W.3d at 916.  A no‑evidence motion for summary judgment must be granted if the party opposing the motion does not respond with competent summary‑judgment evidence that raises a genuine issue of material fact. Id. at 917.  When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm summary judgment if any of the independent summary-judgment grounds is meritorious.    See Ramco Oil & Gas Ltd. v. Anglo-Dutch (Tenge) L.L.C., 207 S.W.3d 801, 826 (Tex. App.CHouston [14th Dist.] 2006, pet. denied).

                                                        IV. Analysis

    A.      Which of the claims asserted by the homeowner are before us in this appeal?

    We first must determine which claims as asserted by Fish against Marsters and Pedigo are before us in this appeal.   In his live pleading, Fish asserted the following claims against Pedigo and Marsters:

    1.       Negligence.  Fish contends that both Marsters and Pedigo negligently and improperly performed the original construction and the repairs.

    2.       Negligent Misrepresentation.  Fish contends that both before and after his purchase of the House, and during the repair process, Pedigo and Marsters made numerous representations that the work was being performed properly and in a good and workmanlike manner.  Fish states that such representations were false, and he relied on these statements to his detriment, causing him to suffer damages.

    3.       Breach of Contract.  Fish contends that Pedigo and Marsters promised to make good and workmanlike repairs to the House in a timely manner.  Fish alleges that this promise formed a contract, which has been breached, causing him damages.

    4.       DTPA. Fish contends that Pedigo and Marsters  violated sections 17.46 (5), (7), (20), (22), and (24) of the DTPA.

    5.       Statutory Fraud. Fish contends that to the extent the alleged misrepresentations were made knowingly, Pedigo=s and Marsters=s actions constitute a violation of Chapter 27 of the Texas Business and Commerce Code.

    The trial court severed into this case all of the above claims that Fish asserted against Marsters and all of the above claims that Fish asserted against Pedigo as to the original construction of the House. These are the claims that are in the severed case in which this appeal has been filed.  All of Fish=s claims against Pedigo as to the repairs to the House after its original construction remain in the original case, which the trial court stayed pending the appeal in this case.  These claims are not involved in this case or this appeal.  Therefore, to the extent Fish argues that this court should reverse the trial court=s summary judgments as to his repair claims against Pedigo, these arguments are misplaced because these claims are not before this court. 

    B.      Did the trial court err in granting summary judgment for the general contractor and its owner?

    Marsters asserted several grounds for summary judgment on Fish=s claims as related to both the original construction and the repairs.  We take each claim in turn.[3]

     

     

    1.       Homeowner=s Negligence Claims against General Contractor

    Marsters asserted the following grounds as to Fish=s claims for negligence:

    !       The negligence claims are barred by the applicable two-year statute of limitations.

    !       Fish=s claims for negligent repairs and supervision fail as a matter of law because Marsters owed no duty and had no control over the repairs.

    !       There is no evidence of a negligence duty, a breach, or proximate cause. 

     

    On appeal, Fish contends that he filed suit within the statute of limitations because he did not discover his damages until after he purchased the House.  However, Fish fails to brief any argument as to why the trial court erred in granting summary judgment on Marster=s no-evidence grounds as to the essential elements of (1) breach of duty, (2) causation, and (3) Marsters=s alleged negligence duty regarding the original construction work. Without citing any authority, Fish asserts that his injuries were proximately caused by negligent construction.  However, this is a conclusory statement.  In briefing the traditional summary-judgment grounds upon which Pedigo sought summary judgment, Fish argues there are fact issues as to whether (1) his contract to purchase the House Aas is@ and the inspection report negated proximate cause; and (2) the economic-loss rule bars his negligence claims.[4]


    Texas Rule of Appellate Procedure 38.1(h) requires appellate briefs to Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@  Tex.R.App. P. 38.1(h); Republic Underwriters Ins. Co. v. Mex‑Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004).  Appellate courts must construe the Texas Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal is not lost by imposing requirements not absolutely necessary to effect the purpose of a rule. Republic Underwriters Ins. Co., 150 S.W.3d at 427.  Fish has not provided any argument, analysis, or citations showing how the trial court erred in granting summary judgment based on Marster=s no-evidence grounds as to the essential elements of breach of duty, causation, or Marsters=s alleged negligence duty regarding the original construction work. Even construing Fish=s brief liberally, we cannot conclude that he has adequately briefed these issues.  See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex. App.CHouston [14th Dist.] 2005, no pet.).  Fish is required to attack every independent ground upon which the trial court could have granted summary judgment as to his negligence claims.  See Ramco Oil & Gas Ltd., 207 S.W.3d at 826. Because Fish has failed to do so, we conclude the trial court did not err in granting summary judgment as to his negligence claims against Marsters.

    2.       Homeowner=s Remaining Claims against General Contractor

    Among other things, Marsters asserted there is no evidence of any of the following essential elements of Fish=s claims against Marsters:

    Negligent Representation.  (1) Marsters made a representation to Fish in the course of Marsters=s business, or in a transaction in which Marsters had a pecuniary interest; (2) Marsters supplied false information for the guidance of others; (3) Marsters did not use reasonable care or competence in obtaining or communicating the information; (4) Fish justifiably relied on the representation; and (5) Marsters=s negligent representation proximately caused Fish=s damages.

    Breach of Contract.  (1) the existence of a contract between Fish and Marsters, (2) breach of that contract, (3) damages resulting from that breach.

    DTPA.  Marsters=s violation of sections 17.46 (5), (7), (20), (22), and (24) of the DTPA.

    Statutory Fraud. (1) a false representation of fact was made, (2) the representation was made to induce Fish to enter a contract, (3) Fish relied upon that representation in entering the contract, and (4) the false representation caused Fish injury.

    On appeal Fish has not provided any argument, analysis, record citations, or legal authorities addressing the trial court=s summary judgment as to the above no-evidence grounds.  Even interpreting Fish=s brief liberally, we cannot conclude that he has adequately briefed these issues.  See San Saba Energy, L.P. v, 171 S.W.3d at 337.  Fish is required to attack every independent ground upon which the trial court could have granted summary judgment as to these claims.    See Ramco Oil & Gas Ltd., 207 S.W.3d at 826. Because Fish has failed to do so, we conclude the trial court did not err in granting summary judgment as to Fish=s negligent-misrepresentation,[5] breach-of-contract,[6] DTPA,[7] and statutory-fraud claims against Marsters.  Likewise, as to Fish=s attempt to recover punitive damages against Marsters by alleging gross negligence, Fish supplies only four conclusory statements in his brief, none of which are coupled with record citations or legal authorities. Because Fish has inadequately briefed any alleged errors regarding his allegation of gross negligence, these complaints are waived.[8] Having found no meritorious argument for reversal as to any of Fish=s claims against Marsters, we conclude that the trial court properly granted summary judgment as to these claims.

     

    C.      Did the trial court err in granting the subcontractor=s traditional motion for summary judgment on the homeowner=s claims regarding the original construction?

    In its traditional motion for summary judgment, Pedigo asserted several grounds for summary judgment on Fish=s claims against Pedigo.[9] We first address the grounds asserted as to Fish=s negligence claim against Pedigo, and then we address the remaining claims.

    1.       Does the homeowner=s negligence claim against the subcontractor as to the original construction fail as a matter of law?

    As to Fish=s negligence claim, Pedigo asserted that summary judgment was proper because: (1) negligence during the initial construction is barred by the two-year statute of limitations; (2) Fish is estopped from asserting damages as a result of Pedigo=s repair work; (3) any injury was not proximately caused by any alleged breach because Fish purchased the House Aas is@; (4) the inspection report negates proximate cause; and (5) any economic losses are barred by application of the economic-loss rule.   On appeal, Fish contends that: (1) he filed his claim within the statute of limitations because limitations did not begin to run until he bought the House or because the discovery rule tolled the applicable statute of limitations, (2) he is not estopped from asserting damages by his alleged control of the repair efforts; (3) Fish=s Aas is@ contract with the original owner (Patel) does not negate proximate cause; (4) there is a fact issue as to whether the real estate inspection report negates proximate cause; and (5) there is a fact issue as to whether Fish=s negligence claim is barred by the economic-loss rule.

    Fish correctly states that his negligence claims are governed by the two-year statute of limitations.  See Tex. Civ. Prac. & Rem. Code Ann. ' 16.003 (Vernon Supp. 2005).  In this case, for Pedigo to be entitled to summary judgment based on the statute of limitations, Pedigo had to prove when the claims accrued, negate the applicability of the discovery rule, and prove as a matter of law that the claims are time-barred.  See Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990).

    Fish, relying on the discovery rule to toll limitations, contends that a material fact issue exists as to whether he was afforded a reasonable opportunity to discover the cause of his injury.  He contends that there is a fact issue as to whether he relied on the inspection report or relied on Marsters=s representations as to the condition of the construction.   Fish further asserts that because his damages arise from construction defects in the House, he could not have been damaged until after he purchased the House.  Therefore, he asserts, his negligence cause of action could not have accrued until, at the earliest, March 23, 2000, the date he purchased the House.  This argument, however, does not reflect the correct legal standard.

    Pedigo=s allegedly negligent work during the construction of the House occurred more than two years before Fish filed this suit.  However, under the discovery rule, the statute of limitations is tolled until Fish had knowledge of facts that would have caused a reasonably prudent person to have made an inquiry that would have led to the discovery of his claims for negligent construction.  White v. Bond, 362 S.W.2d 295, 295B96 (Tex. 1962); Cornerstones Mun. Util. Dist. v. Monsanto Co., 889 S.W.2d 570, 576 (Tex. App.CHouston [14th Dist.] 1994, writ denied). 

    In his deposition, Fish testified as follows:

    !       Fish signed the earnest money contract for the purchase of the House from Patel on February 7, 2000.  


    !       After signing this contract, Fish had the House inspected.  Fish reviewed the inspection report and Atook it seriously.@

    !       Fish phoned Frank Marsters about a large stain in the sheetrock in the first-floor ceiling outside the den door and underneath the deck. In this location Fish had seen a stain measuring two to two-and-a-half feet in diameter.  Fish called Marsters on the telephone and asked for Marsters=s opinion about this stain. Fish did not ask Marsters to inspect this stain; rather, he simply asked Marsters what he suspected it could be.

    !       Marsters stated that the House backed up to the lake and moisture and wind coming off the lake probably were causing a fungus or something growing up there and Ait needed to be taken care of.@  Accordingly to Fish, Marsters did not state that the stain could not be caused by leakage from above, and he did not say it could be.

    !       Fish believes he told Marsters that it appeared the deck was leaking and that there was a big spot on the ceiling.

    !       Fish also asked Marsters about a stain in the sheetrock running up and down the left side of a window in the den (hereinafter ADen Window@). Fish observed a stain there that made him think the House was taking on water in that area.  Fish asked Marsters why the water could be getting in there and what he could do to fix it. Marsters responded that the House is a stucco home that needs to be maintained and that it had been over a year since Marsters had been involved in the House. Marsters stated that the House needed to be caulked and maintained. 

    !       Marsters did not know about the stains prior to Fish=s phone call, which occurred before Fish purchased the House. 

    !       The report of the home inspector=s February 17, 2000 inspection mentions a leak by the Den Window. As of that date, Fish knew that his inspection company had detected a leak at the Den Window and documented it; however, Fish did not talk to the inspector about the leak because he already knew the leak existed.

    !       Fish reviewed the inspection report, and it was important for Fish to understand what the inspector had found before Fish made the decision to proceed with the purchase of the House.  Fish never talked to the inspector about the report.

    !       The report states that Athere was evidence of water/moisture penetration at  rear windows (all windows, and exterior doors should be sealed to prevent water/moisture penetration),@ a reference to the stain by the Den Window.

    !       The report also states that Athere was evidence of moisture stains on ceiling at rear patio (suggest removal of upper balcony decking for further review/inspection).@  However, before proceeding with closing on March 23, 2000, Fish did not take any action regarding this suggestion.

    !       After Fish presented Patel with a list of items that needed to be taken care of, the parties agreed to reduce the purchase price, for Fish to fix certain items, and for Fish to take certain items Aas is.@

    !       As of February 17, 2000, Fish knew about some issues regarding leaks and stains at the House.  Fish bought the House with this knowledge, and Patel did not make any warranties to Fish about the House.

    !       Months later, when Fish took action to deal with these issues, he discovered the damage for which he now seeks to recover.

    Fish was aware of the issues regarding the leaks by February 17, 2000.  As noted above, Fish discovered the Aleaks@ and potential Awater damage@ on or before February 17, 2000.  The fact that he did not purchase the House until March 23, 2000, or begin repairs until several months after the purchase does not toll the running of limitations.   The summary-judgment evidence proves as a matter of law that, more than two years before he filed this suit on March 21, 2002, Fish had knowledge of facts that would have caused a reasonably prudent person to have made an inquiry that would have led to the discovery of his claims for negligent construction.[10]


    The case of Bayou Bend Towers Council of Co-Owners v. Manhattan Construction Company, 866 S.W.2d 740 (Tex. App.CHouston [14th Dist.] 1993, writ denied), is illustrative.    In Bayou Bend, the plaintiff condominium association argued that the statute of limitations was tolled until it discovered the cause of the leaks, not just the leaks themselves.  Id. at 743.   This court rejected this argument and held that the statute of limitations began to run when the association discovered the existence of water leakage and cracks in precast panels, even though it did not know the cause of the cracking problem.   Id. at 744.  Under the applicable standard of review, the summary-judgment evidence conclusively proves Pedigo=s limitations defense and negates the discovery rule as a matter of law.   See Cornerstones Mun. Util. Dist., 889 S.W.2d at 576 (holding that discovery rule tolled limitations only until plaintiff learned of damaged pipe, rather than until plaintiff discovered widespread problems with the sewer system, because knowledge of the damaged pipe would cause a reasonably prudent person to make an inquiry that would lead to the discovery of the system-wide problems); Bayou Bend Towers Council, 866 S.W.2d. at 743B45 (concluding that, even under discovery rule, limitations began to run upon discovery of water leaks in roof because this discovery would cause a reasonably prudent person to make an inquiry that would lead to the discovery of the cause of the leaks);  Tenowich v. Sterling Plumbing Co., 712 S.W.2d 188, 190 (Tex. App.CHouston [14th Dist.] 1986, no writ) (concluding that statute of limitations began running upon discovery of multiple plumbing leaks, even though the full extent of the damage was not discovered until later); Polk Terrace, Inc. v. Curtis, 422 S.W.2d 603, 605 (Tex. Civ. App.CDallas 1967, writ ref'd n.r.e.) (concluding a reasonably prudent person would make inquiry after masonry cracks appeared in house within first year of home ownership).   We conclude that the trial court properly granted summary judgment as to Fish=s negligence claims against Pedigo based on the statute of limitations.[11]

    2.       Did the trial court correctly grant summary judgment as to the homeowner=s other claims against the subcontractor regarding the original construction?

    On appeal, the only alleged negligent misrepresentations Fish has briefed relate to  repairs to the House performed after the original construction.  The only contract Fish has briefed is an alleged contract under which Pedigo purportedly agreed to repair the leaks and the stucco at the House.  In addition, the only alleged DTPA violations Fish has briefed are based on alleged statements by Pedigo that it would repair all window leaks, flashing leaks, and stucco and roofing leaks in the back of the House and that Pedigo would perform this repair work in a good and workmanlike manner. Furthermore, the only alleged statutory fraud Fish has briefed on appeal is based on alleged misrepresentations by Pedigo regarding its repair of the leaks.  However, Fish=s claims against Pedigo based on the repairs to the House are not part of this case; therefore, none of the arguments asserted by Fish present reasons for reversing the trial court=s summary judgment as to Fish=s negligent-misrepresentation, breach-of-contract, DTPA, and statutory-fraud claims regarding the original construction of the House.  Pedigo=s arguments lack merit as to these claims.[12] Having found no meritorious argument as to any of Fish=s claims against Pedigo, we conclude that the trial court properly granted summary judgment as to these claims.[13]

    V.   Conclusion

    Fish has not presented any argument showing that the trial court erred in granting summary judgment as to any of his claims against Marsters or as to any of his claims against Pedigo regarding the original construction of the House. 

     

     

    Accordingly, we overrule all of Fish=s issues and affirm the trial court=s judgment.

     

     

     

     

    /s/      Kem Thompson Frost

    Justice

     

     

     

    Judgment rendered and Memorandum Opinion filed May 17, 2007.

    Panel consists of Justices Fowler, Edelman, and Frost.


    [1]   Although Fish testified on numerous occasions throughout his deposition that this call took place before he signed the earnest money contract and before an actual inspection of the House, Marsters does not recall making these statements to Fish.  There is also a dispute as to whether Fish made this phone call before or after he obtained a formal inspection report for the House.  However, resolution of this conflict is unnecessary to the disposition of this appeal.

    [2]  We discuss in detail in our analysis below the individual claims asserted by Fish against Pedigo and Marsters.

    [3]  When discussing the claims as related to Marsters, we are referring to any claims made as to both the original construction and as to the repair work made after the original construction.

    [4]  Fish also asserts that Pedigo=s allegedly negligent repairs caused his injuries; however, Fish=s negligent-repair claims against Pedigo are not before this court.

    [5]  Fish does assert that he justifiably relied on Pedigo=s alleged negligent representation that it would fix the leaks; however, this claim is not against Marsters, and, in any event is not before this court.

    [6]  Fish does make a conclusory statement that he had a contract with Marsters and Pedigo to repair the leaks and the stucco, and he does provide argument in support of the proposition that a contract existed between Fish and Pedigo regarding repair of the stucco and the leaks; however, this argument is directed at Pedigo, not Marsters.  Although Fish bases this argument on a proposal made by Pedigo and although Fish states in passing that this is APedigo=s and Marsters= remediation proposal,@ Fish does not explain how a document prepared by Pedigo on its letterhead constitutes a contract with Marsters.  In any event, the only contract alleged in Fish=s petition is an alleged agreement to make good and workmanlike repairs to the House in a timely manner.  Fish did not brief on appeal or point out to the trial court summary-judgment evidence raising a genuine fact issue as to the essential elements of such a claim against Marsters.

    [7]  In two pages of his appellate brief, Fish does assert there is a fact issue as to his DTPA claims based on Marsters=s alleged misrepresentation that Marsters would perform the repair work in a good and workmanlike manner; however, the only evidence of such alleged statements Fish cites are statements made by Allen Pedigo of Pedigo.  Even in this argument, Fish does not brief how there was a fact issue as to the five alleged violations of the DTPA.  In any event, the summary-judgment evidence did not raise a genuine fact issue as to whether Marsters violated these DTPA provisions.

    [8]  Even absent briefing waiver, Marsters correctly asserted in its motion for summary judgment that  Fish cannot recover punitive damages against Marsters based on gross negligence if Fish=s negligence claim fails as a matter of law.

    [9]  When we refer to the claims asserted against Pedigo, we refer only to those claims that relate to the original construction.  As stated above, this case does not include all claims regarding repairs made after the initial construction, and any claims asserted against Pedigo as related to the repair work are not before us in this appeal. 

    [10]  At oral argument, Fish=s counsel asserted that fraudulent concealment precluded the application of limitations based on Marsters=s statements to Fish in February 2000.  Fish, however, waived this issue by not raising fraudulent concealment in his response to Pedigo=s motion for summary judgment.  See KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 749B50 (Tex. 1999) (holding that nonmovant waives fraudulent-concealment issue by not raising it in his summary-judgment response).  In any event, statements by Marsters could not possibly constitute fraudulent concealment by Pedigo.

    [11]  Fish also argues that Pedigo=s negligent repairs were a cause in fact of Fish=s alleged injuries; however, Fish=s negligent-repair claims against Pedigo are not before this court.

    [12]  As to Fish=s attempt to recover punitive damages against Pedigo by alleging gross negligence, Fish supplies only four conclusory statements in his brief, none of which are accompanied by record citations or legal authorities. Because Fish has inadequately briefed any alleged errors regarding his allegation of gross negligence, these complaints are waived.  See Tex. R. App. P. 38.1(h). As noted, even absent briefing waiver, Pedigo correctly asserted in its motion for summary judgment that Fish cannot recover punitive damages based on gross negligence if Fish=s negligence claim fails as a matter of law.

    [13]  Fish=s negligence, negligent-misrepresentation, breach-of-contract, DTPA, and statutory-fraud claims regarding the repairs to the House are still pending in a separate case in the trial court and are not adjudicated by this appeal.