RANDALL KING, ASSIGNEE FROM A DISTRICT COURT OF PAUL A. JENSEN, APPELLANT, v. MANAGEMENT JETS INTERNATIONAL, INC. AND DUNCAN AVIATION d/b/a MANAGEMENT JETS INTERNATIONAL, INC. AND J. ROBERT DUNCAN, APPELLEES

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
NO. 05-88-00216-CV
RANDALL KING, ASSIGNEE                        FROM A DISTRICT COURT
OF PAUL A. JENSEN,
 
                APPELLANT,
 
v.
 
MANAGEMENT JETS INTERNATIONAL,
INC. AND DUNCAN AVIATION d/b/a
MANAGEMENT JETS INTERNATIONAL,
INC. AND J. ROBERT DUNCAN,
 
                APPELLEES.                          OF DALLAS COUNTY, TEXAS
 
 
 
BEFORE JUSTICES WHITHAM, THOMAS AND BURNETT
OPINION BY JUSTICE THOMAS
JULY 31, 1989
        Randall King, assignee of Paul A. Jensen, appeals from a summary judgment in favor of appellees, Management Jets International, Inc., Duncan Aviation d/b/a Management Jets International, Inc. and J. Robert Duncan (Management Jets). In two points of error, King contends that the trial court erred in: (1) applying the Texas statutes of limitation in lieu of the Nebraska statutes of limitation; and (2) granting summary judgment because Management Jets failed to establish as a matter of law that the causes of action were barred by limitations. We disagree and affirm the trial court's judgment.
FACTUAL BACKGROUND
        Paul Jensen purchased an aircraft from Management Jets on December 7, 1982. In April 1983, Jensen allegedly discovered that the aircraft had not been maintained under a particular inspection system, and, thus, the aircraft was not airworthy. Jensen assigned his cause of action to King, who brought this suit on January 22, 1987. King claimed that Management Jets misrepresented that the aircraft had been properly maintained and that Jensen relied on these representations when purchasing the aircraft. King also asserted that Management Jets's actions constituted breach of contract and fraud. The trial court granted summary judgment in favor of Management Jets on the grounds that the causes of action were barred by the Texas statutes of limitations.
 
                                
LAW OF THE CONTRACT
        In the first point of error, King contended that the trial court erroneously applied the Texas statutes of limitation. King's counsel conceded at oral argument that this issue was not correctly and timely raised at the trial court level and therefore, he had waived this point. We agree and overrule the first point of error.
SUMMARY JUDGMENT PROOF
        In the second point of error, King contends that the trial court erred in granting a summary judgment because Management Jets failed to establish as a matter of law that the causes of action were barred by the Texas statutes of limitations. Again, at oral argument King's counsel conceded that the trial court's judgment was correct as to the allegations of fraud and misrepresentation. Thus, this opinion will only address the contention that Management Jets failed to establish as a matter of law that the contract cause of action was barred.
        Summary judgment should be granted where no genuine issue as to any material fact exists. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679 (Tex. 1979); see American Petrofina, Co. v. Crump Business Forms, Inc., 597 S.W.2d 467, 470 (Tex. Civ. App.--Dallas 1980, writ ref'd n.r.e.); TEX. R. CIV. P. 166a(c). In determining whether there is a genuine issue of fact in a case, the evidence must be construed in the light most favorable to the party opposing the motion, and all doubts must be resolved against the movant. First Nat'l Bank v. Rector, 710 S.W.2d 100, 103 (Tex. App.--Austin 1986, writ ref'd n.r.e.). A defendant who moves for summary judgment claiming a plaintiff is barred by the statute of limitations must conclusively prove all elements of that defense. Gibson v. Campbell and Co., 624 S.W.2d 728, 731-32 (Tex. Civ. App.--Fort Worth 1981, no writ).
        Generally, actions for breach of contract must be brought no later than four years after the day the cause of action accrues. TEX. BUS. & COM. CODE ANN. § 2.725 (Vernon 1968). King's cause of action for breach of implied warranty accrued when the aircraft was delivered. Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544, 546 (Tex. 1986). The thrust of King's argument is that the summary judgment evidence did not conclusively establish the delivery date. We disagree.
        Management Jets produced for the trial court a true and correct copy of the purchase agreement reflecting that the contract had been accepted and confirmed on December 6, 1982 with the approximate date of delivery being December 7, 1982. The contract further provided that the airplane would be delivered on or before the delivery date subject to certain defined "excusable delays." King did not file any response to Management Jets' motion for summary judgment asserting that the airplane was not delivered on or before December 7. In the absence of controverting summary judgment evidence, we hold that Management Jets met its burden to show the date of delivery. We overrule the second point of error and affirm the trial court's judgment.
                                                          
                                                          LINDA THOMAS
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90.
 
88-00216.F
 
 
File Date[01-02-89]
File Name[880216]