Nelda Gonzales v. Southwest Olshan Foundation Repair Company, LLC, D/B/A Olshan Foundation Repair Company
400 S.W.3d 52
| Tex. | 2013Background
- Gonzales hired Olshan to repair foundation problems caused by water leaks and a lifetime, transferrable warranty covered adjustments for settling.
- The contract required Olshan to perform work in a good and workmanlike manner and to use the Cable Lock foundation system.
- Gonzales observed cracks, sticking windows/doors, and plumbing leaks after Olshan’s work, with multiple subsequent inspections.
- Olshan leveled the foundation in 2003; an Olshan employee allegedly criticized the quality of work and advised seeking an attorney.
- Gonzales sued for breach of express warranty, breach of the implied warranty of good and workmanlike repairs, and DTPA violations; the jury found no breach of express warranty but did breach implied warranty and DTPA, awarding damages.
- The court of appeals reversed, holding the implied warranty was actionable only under the DTPA and subject to a 2-year statute of limitations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether express warranty supersedes the Melody Home implied warranty | Gonzales | Olshan | Express warranty supersedes implied warranty |
| Whether the implied warranty can be disclaimed or is a gap-filler that cannot be waived | Gonzales | Olshan | Cannot be disclaimed; may be superseded by express terms if described |
| Whether the DTPA claims are time-barred | Gonzales | Olshan | DTPA claims barred by limitations; discovery rule applies plus no timely tolling |
| Whether fraudulent concealment tolling applies to DTPA claims | Gonzales | Olshan | Fraudulent concealment tolling does not apply beyond 180 days under statute |
Key Cases Cited
- Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349 (Tex. 1987) (implied warranty is a gap-filler not to be disclaimed; may be superseded by express terms)
- Centex Homes v. Buecher, 95 S.W.3d 266 (Tex. 2002) (implied warranty of good workmanship as gap-filler; express terms can supersede)
- Rocky Mountain Helicopters, Inc. v. Lubbock County Hospital District, 987 S.W.2d 50 (Tex. 1998) (no-evidence challenge preserved implied warranty issue on appeal)
- KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746 (Tex. 1999) (discovery rule for DTPA accrual; accrual when injury discovered)
- Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194 (Tex. 2011) (discovery rule; injury knowledge triggers accrual even if specifics unknown)
- Underkofler v. Vanasek, 53 S.W.3d 343 (Tex. 2001) (DTPA tolling limited to statutory framework; common-law tolling not applied to DTPA claims)
- PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P’ship, 146 S.W.3d 79 (Tex. 2004) (example of discovery rule and statute interpretation in DTPA context)
- Humber v. Morton, 426 S.W.2d 554 (Tex. 1968) (recognition of implied warranties in construction contexts)