B. Mahler Interests, L.P. v. DMAC Construction, Inc.

503 S.W.3d 43, 2016 Tex. App. LEXIS 10180, 2016 WL 4922775
Court of Appeals of Texas·Decided September 15, 2016·No. NO. 14-15-00061-CV·Published·Cited by 17 cases

Opinions

OPINION

William J. Boyce, Justice

B. Mahler Interests, L.P. appeals the grant of summary judgment in favor of DMAC Construction, Inc. Mahler contends that the trial court erred in granting summary judgment because (1) the trial court granted DMAC’s no-evidence motion for summary judgment when the motion failed to specifically 'challenge any elements of any cause of action Mahler .asserted; (2) DMAC improperly asserted a ground for summary judgment for the first time in its reply; (3) DMAC failed to conclusively negate the discovery rule; and (4) Mahler raised a genuine issue of material fact on each element of its fraudulent concealment argument. We affirm.

Background

Mahler hired DMAC in 2005 to serve as general contractor for the construction of Briscoe Manor, an event center and reception hall. DMAC began construction in January 2006. The parties signed a Certification of Substantial Completion on October 25, 2006. Briscoe Manor opened for business in late 2006, but DMAC continued to complete “punch-list” items and change-order work throughout the remainder of 2006 and much of 2007.

Mahler hired Professional Engineering Inspections, Inc. in August 2007 to perform an inspection of the building and evaluate the property’s condition after approximately one year of use. The extensive report (the “2007 report”) identified a number of potential problem* areas with the construction. Mahler passed the report along to DMAC and requested that DMAC perform certain additional repairs, but Mahler did not perform any additional independent inspection at that time.

All remaining work was completed and final payment was made by January 2008. Mahler began noticing other problems with the property beginning in late 2010. Mahler believed certain issues with the property resulted from defective construction, so it hired SMS Engineering in May 2012 to perform a second-professional inspection of the property (the “2012 report”). The 2012 report identified three primary issues: (1) the porch roofs were not properly constructed; (2) interior-grade d.oors were installed at exterior locations; and. (3) commercial-grade, floors should have been used instead of the originally installed floors, which were rated for residential use only.

Mahler sued DMAC on October 26, 2012. In its original petition, Mahler alleged causes of action for breach of contract and breach of warranty based on the three issues identified in the 2012 , report: (1) defective porch roof construction; (2) use of interior doors at exterior locations; and (3) installation of residential-grade floors in a commercial facility. Mahler also asserted that the discovery rule and the doctrines of equitable estoppel and fraudulent concealment operated to toll the accrual of Mahler’s causes of action.

DMAC filed its “Amended Traditional and No-Evidence Motion ■ for Summary Judgment” on July 18, 2014. DMAC argued that Mahler’s claims were, time-barred and that none of the tolling exceptions applied. The trial court held a hearing on August 8, 2014, at which time it orally denied the no-evidence portion, of the motion. The trial court -withheld its [48]*48ruling- on the remainder of the motion and granted Mahler time to provide additional briefing.

After Mahler submitted additional briefing and summary judgment evidence, the trial court signed an order granting DMAC’s “Amended Traditional and No-Evidence Motion for Summary Judgment” on October 17, 2014. DMAC nonsuited a counterclaim for breach of contract on April 27, 2015. The trial court signed a clarifying order on May 5, 2015, stating that, as a result of the nonsuit, its October 17, 2014 grant of summary judgment was a final and appealable judgment. Mahler timely appealed.

Standard op Review

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When reviewing a summary judgment, we examine the record in the light most favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex.2015).

A party moving for traditional summary judgment has the burden to prove that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Cantey Hanger, LLP, 467 S.W.3d at 481. A trial court properly grants a traditional motion for summary judgment in favor of a defendant if the defendant conclusively establishes all elements of an affirmative defense or conclusively negates at least one element of each of the plaintiffs claims. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). A defendant seeking summary judgment on the affirmative defense of limitations must conclusively prove when the cause of action accrued and must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of the injury. KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999).

A party moving for no-evidence summary judgment must show that there is no evidence of one or more essential elements of the claims or defenses on which the nonmovant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The motion must state the elements as to which there is no evidence. Id. We sustain a no-evidence summary judgment when (a) there is a complete absence of evidence of a vital fact; (b) the court is barred by rules of law' or of evidence from giving Weight to the' only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence conclusively establishes the opposite of the vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003).

Analysis

In its first issue, Mahler contends that the' trial court erred by granting DMAC’s no-evidence motion for summary judgment because the motion failed to specifically challenge any elements of any cause of action Mahler asserted. In its second, third, and fourth issues, Mahler contends the trial court erred in granting DMAC’s traditional motion for summary judgment because (1) DMAC improperly asserted a ground for summary judgment for the first time in its reply; (2) DMAC failed to conclusively negate the discovery rule; and (3) Mahler raised a genuine issue of material fact on each element of fraudulent concealment.

[49]*49Because each of Mahler’s underlying claims was premised on the three issues identified in the 2012 report—defective porch roof construction, use. of interior doors at exterior locations, and installation of residential-grade floors hr a commercial facility—we analyze Mahler’s limitations issues in light of those three distinct alleged injuries.

We conclude that the trial court properly granted DMAC’s traditional motion for summary judgment as to all of Mahler’s claims. Therefore, we need not determine whether the trial court erred by granting DMAC’s no-evidence motion for summary judgment.

I. Limitations

Mahler pleaded claims for breach of contract and breach of warranty.

Free access — add to your briefcase to read the full text and ask questions with AI

B. Mahler Interests, L.P. v. DMAC Construction, Inc., 503 S.W.3d 43, 2016 Tex. App. LEXIS 10180, 2016 WL 4922775 (Tex. Ct. App. 2016).

503 S.W.3d 43 (B. Mahler Interests, L.P. v. DMAC Construction, Inc.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

Poe v. FCA US LLC
E.D. Michigan, 2022
Zwerling v. Ford Motor Company
N.D. California, 2022
MCMC Auto Ltd. v. Sidecars, Inc.
Court of Appeals of Texas, 2018
Gutierrez v. Stewart Title Co.
550 S.W.3d 304 (Court of Appeals of Texas, 2018)
Doe v. Baylor Univ.
313 F. Supp. 3d 786 (W.D. Texas, 2018)
Cody Texas, L.P. v. BPL Exploration, Ltd.
513 S.W.3d 522 (Court of Appeals of Texas, 2016)