Smith v. Gray

907 S.W.2d 444 (1995)

Kevin SMITH and Cathleen Smith, Petitioners,
v.
Jack W. GRAY and Phyllis Gray, Respondents.

No. 94-1110.

Supreme Court of Texas.

March 2, 1995.

John M. Weaver, Dallas, for petitioners.

Martha L. Strother, Dallas, for respondents.

PER CURIAM.

Kevin and Cathleen Smith purchased a house from Jack and Phyllis Gray. Upon taking possession of the house on February 6, 1989, the Smiths discovered major structural damage consisting of cracks and separations in the walls, floors, and foundation. The Smiths filed a claim with their insurance company that same day. On May 23, 1989, while investigating the claim, the insurance company discovered that prior to the time of sale, the Grays knew about the sewer leak that caused the damage, but failed to have it repaired or to disclose its existence to the Smiths.

The Smiths filed suit on July 11, 1991, alleging violations of the Deceptive Trade Practices—Consumer Protection Act (DTPA), TEX.BUS. & COM.CODE §§ 17.46(b)(5), (7), & (23). The Grays filed a motion for summary judgment contending that the statute of limitations barred the claim. The Smiths provided affidavits stating that they did not know and had no reason to suspect that the Grays had deceived them until late July or early August of 1989. The trial court granted the motion for summary judgment based on limitations. The court of appeals affirmed, holding that the statute of limitations had commenced on February 6, 1989, the date on which the damage was discovered. Smith v. Gray, 882 S.W.2d 103 (Tex. App.1994).

In denying the application for writ of error, a majority of the Court neither approves nor disapproves of the court of appeals' analysis of the statute of limitations under the DTPA, TEX.BUS & COM.CODE § 17.565.