Safeway Stores, Inc. v. Certainteed Corp.
687 S.W.2d 22
Tex. App.
1985
Check Treatment

*2 AKIN, Before SPARLING and GUIL- LOT, JJ.

AKIN, Justice. opinion

Our in this Septem- issued 12, 1984, hereby ber is withdrawn and we following substitute the place. Safeway appeals from an instructed ver- dict, contending that the trial court erred in instructing a verdict because the evidence presented fact issues jury’s for the deter- mination with to a breach of an implied warranty merchantability negligence, Certainteed and toas as well as warranties, by Herman L. Smith Briggs. and Gunn & We hold that Safe- way’s cause of action is barred limitations. TEX.BUS. & A breach. occurs (Vernon 1968). Ac- made, COM.CODE except when tender cordingly, judg- we affirm the trial court’s explicitly where a warranty ex- However, ment as to re- Certainteed. tends to future verse and remand as Home Insur- goods and the breach must ance, and Gunn & hold because we await the time such *3 that there was evidence which raised fact cause accrues when the breach jury’s issues for the determination as to (Em- is or should have been discovered. appellees by breach of warranties added). phasis alleged negligence. and as to their language section, Under the of this the 1970, In contracted with Smith “discovery only applicable rule” can if a be roofing to build a warehouse. The subcon- “explicitly warranty per extends to future tractor, products used implied warranty, by formance.” An its In- manufactured Certainteed. Home nature, can not very explicitly extend to Company pérformance surance wrote the performance. future DeLaval Clark v. Se project. By bond on the severe leaks (5th Corp., parator 639 F.2d 1320 Cir. prompted Safeway in to hire Con- the 1981); Datsun, Southerland Northeast Inc., Consultants, inspect struction the Inc., (Tex.App. 659 S.W.2d 889 Paso —El report. roof and make a Con- Construction Thus, writ). contrary to Safe reported that have sultants the roof would contentions, way’s began to run limitations replaced. In filed suit to be the del roofing in 1970 when material was alleging implied warranty breach of an Accordingly, that ivered.1 we hold merchantability by negli- Certainteed and in more four after lawsuit than warranties, gence, as well breach of delivery, is barred. Briggs. Smith and Gunn & The trial court appellees’ granted motion for instructed note, that, however, although We verdict. has that consistently maintained cause of action was its first contends implied warranty, of an Certain- for breach verdict, instructing erred in a based rejoinder in its brief commented teed limitations, in favor of Certainteed be Safeway actually appeared proceed to be implied warranty cause existed which an express theory. Be ing upon warranty an of the extended future the trial court has instructed a ver cause In roofing respect, material. this dict, light must view evidence we introduced an advertisement Certain- Safeway. containing up most favorable Henderson language teed “bondable Co., 649 years” argues and now that this was Insurance 544 S.W.2d to 20 Travelers warranty extending (Tex.1976). liberally implied Additionally, an must TEX. agree. performance. Safeway’s pleadings cannot in the ab construe provides: & COM.CODE 2.725 BUS. special exceptions. v. Al sence of Roark len, (Tex.1982). How 633 S.W.2d 809 (a) any con- An action for breach ever, if we even assume sale must within tract for be commenced claim sufficient to state a pleadings has were years after cause of action four ex of an based on Certainteed’s breach accrued.... warranty, the instructed press we hold that (b) A cause of action accrues when proper there was no occurs, was regardless aggriev- verdict breach breached. knowledge of the that the was party’s lack of evidence ed building, Building Vaughn a holding contract for construction of note that our 1. We (Tex.Civ. Corp. applicable. Austin 678 is not This the U.C.C. 1981), (1983), hand, App. goods 113 the sale of on the other and, concerns aff'd —Dallas Vaughn was a suit not control this case. governed by does consequently, the U.C.C. is upon express warranty, any, appellees The den was to adduce evi damage instant case is that the roof dence with to that was “bondable years.” face, language for 20 its apportioned On this to each defendant. See John (Tex.Civ. unambiguous Willis, susceptible and is to but one son v. S.W.2d curiam, interpretation: App. Waco), per reasonable the roof writ n.r.e. — refd quality of sufficient the time at twenty year that a on it bond could Because we reverse as to respect, Safeway pro this be obtained. we must also reverse as to Home. We do duced no evidence that it could not obtain a agree be not with Home’s contention Accordingly, bond on the roof. since no prohibited two after alleged evidence exists of day on which the final warranty, we hold that the instructed ver due, payment barred fell suit is against Safeway dict on this issue was in by limitations. TEX.REV.CIV.STAT.ANN. *4 Consequently, as a of order matter law. (Vernon 1958)requires art. limita 5545 the question need not the of whether we reach years period tions to be no less than two Safeway’s right proceed to on a breach of begin and period the does not to run until express warranty by claim the was barred day triggering E.g. the the event. after right of statute limitations as was to Rose, Home Ins. New York v. 152 Tex. theory proceed on a of breach of an (1953). 862 The two warranty. year period provided per for in Home’s Next, Safeway argues that the trial began day formance to run from the bond instructing court erred in verdict a for event, shortening by triggering thus o/the one Smith because the evi day period the limitations mandated dence raised fact issues as to a Consequently, article the limitation warranty to the roofing install material in a general in the is void and the four good and workmanlike manner. As to year applies. of limitations TEX. statute Schreiber, workmanship, Safeway’s expert (Vernon art. REV.CIV.STAT.ANN. 5527 witness, question answered “No” to the Supp.1984); Fidelity United States good “... was the roof ... in constructed a Co. v. Hills Methodist Guaranty Eastern good and workmanlike manner and Church, (Tex.Civ.App. [with] argue materials?” The contractors that n.r.e.). —Fort writ ref’d This Worth ambiguous ques this answer is because the period begin limitations did not to run of tion asks workmanship about both ma appeared. until the leaks Id. at 300. the terials. Because court instructed the rehearing, complains of our On Home verdict, we must view the answer most Hills, the in reliance on result Eastern Henderson, favorably Safeway. to 544 arguing the there ade failed to Schreiber, respect, at 650. In this S.W.2d quately applying a for the state rationale qualified was properly expert, who as an However, surety. to a we discovery rule testified that entire had to the be holding in support find for our additional replaced due leak the and that cost Lawyer’s Surety Corpora Crawford replacement $450,000.00. of be We tion, S.W.2d —Austin conclude, therefore, was enti n.r.e.). ref’d That con writ case to negligence tled have the issues of and of against surety cerned a was which jury. determined the obligated perform a in the event to on bond There, appellees’ argument to failed do so. the principal We now turn the that, that the of ap since had the court held cause action accrued burden them, portion damages against surety principal at the time the between the the pay obligee’s in their should failed to claim. Craw instructed verdict favor Instead, in the agree. ford, Similarly, at 642. affirmed. We cannot present obligated reim neg hold because all of Home itself to appellees’ damages ligence produced single resulting the bur- burse for injury, § (Ver- Smith’s defaults & under construction TEX.BUS. COM.CODE 2.725 1968). which, quote pertinent in contract under the terms of the non bond, part: provided only Home also was

obligated in the Smith event that failed (a) An of any action breach con- damages. In reimburse for such tract sale must be commenced within provisions view of these bond and of of four after cause action has holding cause Crawford, accrued.... against of have ac- Home could not (b) A of action when the cause accrues crued before the breach of construction occurs, regardless aggriev- of the breach Safeway present- contract was discovered. knowledge party’s ed lack of of the ed evidence that the leaks were first discov- A occurs breach. true, 1977; consequently, ered this is made, except tender of when bringing suit not barred from was warranty explicitly where a extends four goods within discovery. must of the breach await time such costs, With we tax one-third when the breach is or action accrues against against the costs one-third should have been discovered. against Gunn one-sixth & Safeway. charge point passing one-sixth first portion error, of the costs Home with a lesser viewed in the evidence must be *5 allegedly light it neither breached most and dis- favorable to negligence. committed inferences. contrary nor all evidence and card less tax to than contractors Insurance Henderson v. Travelers because, although (Tex.1976). trial plead- we affirm the its 544 S.W.2d 649 Certainteed, alleged as we re- had judgment ings, Safeway court’s to that Certainteed judgment in favor of merchanta- implied verse the of breached alleged remand also and Gunn & and and bility fitness. against representation of causes action Certainteed had made a adequate to the trial court for further leak-free and defendants that the roof was rehearing All are proceedings. roofing twenty motions falsity representation overruled. of this discovered the in 1979. J.,

GUILLOT, dissenting. if any express warranty, explicit- it As to of ly extended GUILLOT, Justice, dissenting. apply, then rule would goods, dissenting opinion my I former withdraw begun to not have limitations would 2, 1984, following is and the of October should have until the was or run my dissenting opinion. now Safeway introduced ad- been discovered. regarding the dis- respectfully I dissent containing the by Certainteed vertisements to claim of position majority as up years.” Al- language “bondable and concur Safeway against Certainteed “twenty year” Safeway pled the though against holdings the claims as to with implied repre- constituting an language as appellees, would reverse the other nevertheless, sentation, pled and facts for a new trial. remand presented established the evidence if warranty, error, on an Safeway con- relied point In its first of to the facts The court must look granting anything. an erred tends 470, 471 Alford, 333 S.W.2d pled, Dixon v. on limitations—in verdict—based instructed 1960, writ), (Tex.Civ.App. the evidence of Certainteed because favor —Amarillo Lyon rule of law. Van apply proper jury. The statute issues for the raised fact 632, Lines, Ogden, 503 S.W.2d Inc. v. applicable Safeway's of limitations 1973, no governed Dist.] [1st Certainteed is —Houston writ). pleadings should liber-

ally favor, Augustine SPELLMAN, construed its absence Naomi et any special exceptions. Allen, al., Appellants, Roark peti- The tion gives is sufficient it fair and ade- quate upon notice of facts which the AMERICAN UNIVERSAL INVEST- pleader Roark, its claim. bases COMPANY, al., MENT et Moreover, at 810. was not Appellees. characterization, by Safeway’s misled as No. 13-82-329-CV. brief, up described in its of the “bondable twenty language years” as an Texas, Appeals Court of warranty. Ply- Moore Puget See Sound Corpus Christi. wood, Inc., 214 Neb. 332 N.W.2d Dec. 1984. (1983). Rehearing Denied Jan. face, I language note this performance. “Up extends to future

twenty years” means that the roof was year up from a minimum of

bondable one twenty depending

to a maximum purchased.

on when the Hence it warranty explicitly

is a into extending representa-

future. hold that this express warranty explicitly

tion is an

extends to future a matter law, requirements and meets the § 2.725(b) (Ver-

TEX.BUS. & COM.CODE Further, 1968).

non at evidence least

raised jury fact issues for the decide as up

to whether “bondable

twenty years,” and as to when any

discovered breach of this war-

ranty for purposes triggering

period I Accordingly, of limitations. would

reverse and remand for a determination jury issues.

I majority’s concur with treatment of dealing

Safeway’s points of error with

Smith, Thus, Briggs, I and Home. Smith,

would reverse remand as to

Gunn & Certainteed. I

Because would reverse as to as to Home rises or reverse

falls with Smith.