Bayou Bend Towers Council of Co-Owners v. Manhattan Const. Co.

• Citation: 866 S.W.2d 740
• Decision Date: 18 November 1993
• Docket Number: A,CO-OWNER,No. C14-93-00207-CV,C14-93-00207-CV
• Parties: BAYOU BEND TOWERS COUNCIL OFppellant, v. MANHATTAN CONSTRUCTION COMPANY, Chamberlin Waterproofing & Roofing Systems, Inc., PPG Industries, Inc. and Featherlite Building Products Corporation, Appellees. (14th Dist.)
• Court: Court of Appeals of Texas

Page 740

866 S.W.2d 740

BAYOU BEND TOWERS COUNCIL OF CO-OWNERS, Appellant, v. MANHATTAN CONSTRUCTION COMPANY, Chamberlin Waterproofing &amp Roofing Systems, Inc., PPG Industries, Inc. and Featherlite Building Products Corporation, Appellees.

No. C14-93-00207-CV.

Court of Appeals of Texas Houston (14th Dist.).

Nov. 18, 1993.

Rehearing Denied Dec. 16, 1993.

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.

OPINION

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 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. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 492-93 (Tex.App.--Houston [1st Dist.] 1992, writ denied).

The discovery rule applies in cases where the injured party did not and could not know of its injury at the time it occurred, that is, when the injury is inherently undiscoverable. See, e.g., Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988) (legal malpractice); Weaver v. Witt, 561 S.W.2d 792, 793-94 (Tex.1977) (negligently performed operation). Appellees concede that the discovery rule applies to DTPA actions, but contend that the discovery rule does not apply to Bayou Bend's negligence and breach of warranty actions. Rather, they argue that the "legal injury" rule applies. Under this theory, limitations begins when the wrongful act is committed and damage is suffered. Black v. Wills, 758 S.W.2d 809, 816 (Tex.App.--Dallas 1988, no writ). We find that limitations on Bayou Bend's tort claims began when the condominium first sustained damage; however, we must address the application of the discovery rule to Bayou Bend's DTPA action.

Bayou Bend contends that the statute of limitations was tolled until it discovered the cause of the leaks, not just the leaks themselves. To support its argument, Bayou Bend relies on medical malpractice and bodily injury cases, generally involving a foreign object or substance in the body. In these cases, the statute of limitations was tolled until the plaintiff discovered the cause of the injury. See, e.g., Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex.1967) (foreign object left in patient's body following surgery); Alfaro v. Dow Chem., 751 S.W.2d 208, 209 (Tex.App.--Houston [1st Dist.] 1988) aff'd, 786 S.W.2d 674 (Tex.1990), cert. denied, 498 U.S. 1024, 111 S.Ct. 671, 112 L.Ed.2d 663 (1991) (sterility from exposure to pesticide); Corder v. A.H. Robins Co., 692 S.W.2d 194, 196 (Tex.App.--Eastland 1985, no writ) (sterility caused by Dalkon Shield); and Grady v. Faykus, 530 S.W.2d 151, 154 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.) (exposure to excessive radiation). Bayou Bend asks this court to apply the same rationale to this case. In addition, at oral argument, Bayou Bend argued that limitations should have been tolled until it had an opportunity to discover not only the cause of the defects, but also the parties responsible. We are not persuaded by Bayou Bend's argument and find that the cases it cites are not controlling under these facts. Under Texas law, it is the discovery of the injury, and not the discovery of all of the elements of a cause of action that starts the running of the clock for limitations purposes. Seibert v. General Motors Corp., 853 S.W.2d 773, 777 (Tex.App.--Houston [14th Dist.] 1993, no writ). Here, all that is required to commence the running of the limitations period is the discovery of an injury and its general cause, not the exact cause in fact and the specific parties responsible. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344 n. 3 (Tex.1992) (limitations generally begins when the injury is known, not when the alleged wrongdoers are identified).

Bayou Bend pled the discovery rule; therefore, it was appellees' burden to establish when Bayou Bend discovered, or should have discovered, its injury. It is undisputed that the construction of Bayou Bend Towers was completed in 1981. Appellees' summary judgment proof established that as early as 1982, Bayou Bend was aware of leaks in the garage roof. During Hurricane Alicia in 1983, the condominium suffered extensive leaks, which were observed by Bayou Bend's representative, David Croft. He testified by deposition that the building "leaked like a sieve" before, during and after the hurricane. Bayou Bend or its insurer, Chubb Lloyd Insurance Company ("Chubb"), retained experts to determine the source of the leaks in 1983. Ron Lapina of Craddock & McDowell issued a report on October 14, 1983 to Chubb reflecting the results of his inspection and his interviews with representatives of Bayou Bend. His report questioned the quality of the caulking done by the original contractors. Bayou Bend retained Don Workman & Associates in September 1983 to supervise repairs and perform investigatory work....