866 S.W.2d 740 (Tex.App. - Houston [14 Dist.] 1993), C14-93-00207, Bayou Bend Towers Council of Co-Owners v. Manhattan Const. Co.

Docket Nº:C14-93-00207-CV.
Citation:866 S.W.2d 740
Party Name:BAYOU BEND TOWERS COUNCIL OF CO-OWNERS, Appellant, v. MANHATTAN CONSTRUCTION COMPANY, Chamberlin Waterproofing & Roofing Systems, Inc., PPG Industries, Inc. and Featherlite Building Products Corporation, Appellees.
Case Date:November 18, 1993
Court:Court of Appeals of Texas

Page 740

866 S.W.2d 740 (Tex.App. —Houston [14 Dist.] 1993)




Roofing Systems, Inc., PPG Industries, Inc. and

Featherlite Building Products

Corporation, Appellees.

No. C14-93-00207-CV.

Court of Appeals of Texas, Fourteenth District, Houston

November 18, 1993

Rehearing Denied Dec. 16, 1993.

Page 741

Damon R. Capps, Houston, for appellant.

Shelly Rogers, Lauren Beck, Richard A. Sheehy, M. Karinne McCullough, Charles W. Lyman, Houston, Kyle W. Gooch, Dallas, Robert L. Asams, A.M. Landry, III, Houston, for appellees.

Before ROBERTSON and CANNON, JJ., and ROBERT E. MORSE, Jr., J., sitting by designation.


CANNON, Justice.

Appellant, Bayou Bend Towers Council of Co-Owners ("Bayou Bend"), a condominium owners association, brought suit for construction defects in the condominium building and garage. The trial court granted summary judgment based on limitations in favor of appellees, who were contractors for the project. Bayou Bend now appeals, raising three points of error concerning application of the discovery rule and the doctrine of fraudulent concealment. We affirm.

Bayou Bend filed suit against the developer on July 12, 1990, and it added these appellees as defendants on April 18, 1991. Manhattan Construction Company ("Manhattan") was the general contractor for the condominium project, Bayou Bend Towers, and the other appellees were subcontractors. PPG Industries, Inc. ("PPG") was responsible for installing windows, and Featherlite Building Products Corporation ("Featherlite") provided and installed the precast concrete

Page 742

siding. Chamberlin Waterproofing & Roofing Systems, Inc. ("Chamberlin") was responsible for caulking around the windows and the precast panels, and the placement of the garage roof. The construction of the condominium was substantially completed in 1981. The building sustained damage from Hurricane Alicia in 1983. Both before and after the hurricane, it suffered from water leaks in the roof, windows and around the precast concrete walls.

Bayou Bend's suit alleged negligence, breach of implied warranties and violation of the Texas Deceptive Practices--Consumer Protection Act ("DTPA"). See TEX.BUS. & COM.CODE ANN. § 17.41-.63 (Vernon 1987 & Supp.1993). Negligence and DTPA have two year limitations periods, and breach of warranty is governed by the four year statute. See TEX.CIV.PRAC. & REM.CODE ANN. §§ 16.003(a); 16.004(a) and 16.051 (Vernon 1986); TEX.BUS. & COM.CODE ANN. § 17.565 (Vernon 1987). All appellees filed motions for summary judgment raising limitations as grounds. On August 24, 1992, the trial court granted each of these motions. On November 2, 1992, the court severed this interlocutory summary judgment from the original cause, resulting in a final summary judgment, and Bayou Bend now appeals.

Bayou Bend brings three points of error claiming that the trial court erred in granting summary judgment because: (1) a fact issue exists as to whether it had a reasonable opportunity to discover the cause of its injury; (2) a fact issue exists on its cause of action against Featherlite only as to whether the latent defect in the precast concrete panels could have reasonably been discovered before January 1, 1990; and (3) appellees were estopped by fraud from relying on limitations.

Our supreme court has set the standards we apply in reviewing a trial court's grant of a summary judgment. These standards are:

  1. The movant for summary judgment has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law;

  2. In deciding whether there is a disputed material fact issue precluding summary judgment, we must take evidence favorable to the non-movant as true; and

  3. We must indulge every reasonable inference in favor of the non-movant and resolve any doubts in its favor.

Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985).

A defendant is entitled to summary judgment based on an affirmative defense if it proves as a matter of law all the elements of the affirmative defense. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). When a defendant seeks summary judgment based on the statute of limitations, it must prove when the cause of action accrued and must negate the applicability of the discovery rule if pled by the non-movant. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990).

In its first point of error, Bayou Bend contends that a material fact issue exists as to whether it was afforded a reasonable opportunity to discover the cause of its injury under the discovery rule. Bayou Bend contends that latent construction defects were the cause of the leakage in Bayou Bend Towers. It alleges that although it was aware of the leaks in the complex, it was unable to discover that construction defects were the cause of those leaks.

The general rule for a tort action is that it accrues when the tort is committed, notwithstanding the fact that the full range of damages are not ascertainable until a later date. Atkins v. Crosland, 417 S.W.2d 150, 153 (Tex.1967). A party need only be aware of enough facts to apprise him of his right to seek a judicial remedy. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 829 (Tex.1990). In some cases, the discovery rule is an exception to the general accrual rule. When applied, the discovery rule operates to toll the running of the period of limitations until the time that the plaintiff discovers, or through the exercise of reasonable care and diligence should have discovered, the nature of his injury. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). The discovery rule imposes a duty on the plaintiff to exercise reasonable diligence to discover facts of negligence or omission...

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