                                                                        United States Court of Appeals
                                                                                 Fifth Circuit
                                                                              F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                               August 1, 2005
                               FOR THE FIFTH CIRCUIT                       Charles R. Fulbruge III
                                                                                   Clerk


                                     No. 04-10941
                                   Summary Calendar



      THOMAS BRYANT,

                                                       Plaintiff-Appellant,

                                          versus

      STONEGATE VILLAS; ET AL.,

                                                       Defendants,

      METRIC PROPERTY MANAGEMENT, INC.,

                                                       Defendant-Appellee.


                   Appeal from the United States District Court for
                            the Northern District of Texas
                             (USDC No. 4:03-CV-212-Y)
          _________________________________________________________


Before REAVLEY, HIGGINBOTHAM and CLEMENT, Circuit Judges.

PER CURIAM:*




      *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should
not be published and is not precedent except under the limited circumstances set forth in
5TH CIR. R. 47.5.4.
       We have reviewed the summary judgment record de novo and agree with the

district court that summary judgment was properly granted in favor of Appellee Metric

Property Management, Inc. We agree with Metric Property that Appellant Bryant’s suit

sounded in tort for limitations purposes, and that the suit was therefore subject to a two-

year limitations period under Texas law. Although in November of 2000 Bryant resided

in the apartment alleged to be contaminated, he failed to bring suit until of October of

2002 and then failed to serve the defendant until March of 2003. As to both the personal

injury and property damage claims, summary judgment was warranted because Bryant

failed to file suit and employ due diligence to serve Metric Property prior to the

expiration of the applicable limitations period.

       We do not agree with Bryant that the limitations period for his property damage

claims did not begin to run until the publication of the Upah report in March of 2001,

which merely confirmed the existence of certain molds in his apartment. Bryant was a

certified environmental inspector and suspected environmental contamination of the

apartment months before the Upah report issued. In December of 2000 Bryant sought

medical attention and had noticed that his symptoms got worse when he was in his

apartment. Dr. Rea attested that Bryant sought treatment in January 2001 with

complaints of mold exposure. In these circumstances the limitations period was not

tolled until the date of the Upah report. The general rule is that “a cause of action accrues

when a wrongful act causes some legal injury, even if the fact of injury is not discovered

until later, and even if all resulting damages have not yet occurred.” S.V. v. R.V., 933

                                             2
S.W.2d 1, 4 (Tex. 1996). The discovery rule is not applicable because it only extends the

limitations period in cases where “the alleged wrongful act and resulting injury were

inherently undiscoverable at the time they occurred . . . .” Id. at 6. An injury is

considered inherently undiscoverable only “if it is by nature unlikely to be discovered

within the prescribed limitations period despite due diligence.” Id. at 7. In the pending

case, Bryant suspected mold contamination, complained of such, looked into new ducts

for his apartment, and sought testing for mold before the issuance of the Upah report.

The alleged property damage was not inherently undiscoverable prior to the report.

       If we reached the question of the lack of evidence of causation to resist summary

judgment, we would be inclined to agree with the opinion of the district court.

AFFIRMED.




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