Affirmed and Majority and Concurring Opinions filed September 15, 2016.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-15-00061-CV

                   B. MAHLER INTERESTS, LP, Appellant
                                         V.
                   DMAC CONSTRUCTION, INC., Appellee

                   On Appeal from the 152nd District Court
                            Harris County, Texas
                      Trial Court Cause No. 2012-64035

                   CONCURRING OPINION
      In today’s statute-of-limitations analysis we consider whether the discovery
rule tolls the running of limitations on the plaintiff’s breach-of-contract and
breach-of-warranty claims. The discovery rule does not apply because the types of
injuries alleged are discoverable. Thus, the discovery rule does not toll the running
of limitations on these claims. In affirming the trial court’s judgment, the majority
reaches the correct conclusion — that the discovery rule does not toll the running
of limitations — but for the wrong reasons.
                               STATUTE-OF-LIMITATIONS ANALYSIS

          The majority concludes the trial court did not err in determining that the
discovery rule did not toll the statute of limitations on appellant/plaintiff B. Mahler
Interests, L.P.’s breach-of-contract and breach-of-warranty claims. According to
the majority, the statute of limitations bars Mahler’s claims against
appellee/defendant DMAC Construction, Inc. stemming from that company’s
construction of allegedly defective porches and installation of interior-grade doors
on the exterior because Mahler actually discovered the alleged defects four years
before filing suit.

          A. The discovery rule does not apply to categories of injuries that are
             discoverable.
          Claims typically accrue when the defendant’s actionable conduct causes
some legal injury.1 But, under the discovery rule, accrual of a claim may be
deferred if the nature of the injury is inherently undiscoverable and the evidence of
injury is objectively verifiable.2 The Legislature has adopted the discovery rule in
some cases, rejected it in some, and stood silent in others.3 Our lawmakers have
expressly rejected application of the discovery rule in contract cases involving the
sale of goods.4 While the Legislature’s silence on accrual in some cases leaves that
question to the courts, the Supreme Court of Texas has restricted application of the
discovery rule to exceptional cases to avoid defeating the purposes behind the




1
    Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006).
2
    Id.
3
    Id.
4
    Id.

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limitations statutes.5

          An injury is inherently undiscoverable if, by its nature, the injury is unlikely
to be discovered within the prescribed limitations period despite due diligence. 6
This legal question is decided on a categorical rather than case-specific basis; the
focus is on the discoverability of the type of injury rather than the particular
injury.7

          A breach-of-contract claim accrues when the contract is breached.8 Three
times the Supreme Court of Texas has refused to apply the discovery rule to defer
accrual until a breach of contract is discovered.9 Though the high court has not
categorically excluded the possibility that the discovery rule may apply to a type of
injury that is the subject of a contract claim, the high court has stated that those
cases should be rare, as diligent contracting parties generally should discover any
breach during the relatively long four-year limitations period provided for such
claims.10

          B. The type of injuries the plaintiff alleged are discoverable.

                  1. Injury Resulting from Alleged Defects in the Porches

          In its live pleading Mahler sought to recover based on injuries resulting from
alleged defects in the porch construction. Mahler contended that DMAC used
improper construction methods and inadequate materials, including undersized


5
    Id.
6
    Id.
7
    Id. at 314.
8
    Id.
9
  See id; Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 737 (Tex. 2001); HECI
Exploration Co. v. Neel, 982 S.W.2d 881, 888 (Tex. 1998).
10
     Via Net, 211 S.W.3d at 314–15.

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beams, excessive spacing between beams, and inadequate beam supports, such that
the porches sagged and were “inadequate to support [their] own weight.”
According to the 2007 inspection, the surface of the roof at the east porch off the
reception building appeared uneven and corresponded to sags and unevenness at
the ceiling below this area, making the defect visible.                  Also evident was a
significant sag over the barbeque area outside of the bar. Though the focus is on
whether the type of injury rather than the particular injury was discoverable, the
notations in the report show that this type of injury is visible.11 Mahler noted in an
e-mail that the porch ceilings had “started to have a wave-look to them.” The type
of injury allegedly resulting from the purported defects in the porch-roofs claim is
not, by its nature, unlikely to be discovered within the prescribed limitations period
despite due diligence; therefore, this type of injury is not inherently
undiscoverable.12       Thus, the discovery rule does not apply to the porch-roofs
claim.13

                2. Interior-grade doors

         In its live pleading Mahler sought to recover based on injuries resulting from
the installation of interior-grade doors in exterior locations. Shortly after the
construction, the doors were not shutting properly, the latches did not line up, and
the doors were cracking and peeling. These types of issues can be seen. Because
the type of injury allegedly resulting from the installation of interior-grade doors in
11
  See Clark v. Dillard’s, Inc., 460 S.W.3d 714, 722 (Tex. App.—Dallas 2015, no pet.) (holding
that discovery rule did not apply to visible injury although plaintiff did not discover injury);
Belares Link Exp., S.L. v. GE Engine Services-Dallas, LP, 335 S.W.3d 833, 838 (Tex. App.—
Dallas 2011, no pet.) (noting that an injury that is actually discovered could not be in a category
that is inherently undiscoverable).
12
  See Via Net, 211 S.W.3d at 313–15; Brown v. Caldwell & Family Custom Homes, Inc., No.
02-11-00490-CV, 2012 WL 4662544, at *3–4 (Tex. App.—Fort Worth Oct. 4, 2012, no pet.)
(noting that visible defects are discoverable) (mem. op.).
13
     See Via Net, 211 S.W.3d at 313–15; Brown, 2012 WL 4662544, at *3.

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exterior locations is not, by its nature, unlikely to be discovered within the
prescribed limitations period despite due diligence, this type of injury is not
inherently undiscoverable.14 Therefore, the discovery rule does not apply to this
claim.15

                 3. Residential-grade floors

          In its live pleading Mahler sought to recover based on injuries resulting from
the alleged installation of residential-grade floors in lieu of commercial-grade
floors. The evidence showed that the floor was made of a composite material and
that the product was residential grade rather than commercial grade.                 Mahler
noticed that the floor showed signs of wear and tear in 2010. With a phone call to
the manufacturer, Mahler confirmed the grade of the floors. Mahler knew the type
of flooring that had been used on the project and was able to discover the breach
through a telephone inquiry.

          The information needed to discover this type of defect is readily available.
The type of injury allegedly resulting from the installation of residential-grade
floors rather than commercial-grade floors is not, by its nature, unlikely to be
discovered within the prescribed limitations period despite due diligence;
therefore, this type of injury is not inherently undiscoverable.16 The discovery rule
does not apply to this claim.17

          The majority reasons that the discovery rule did not toll the statute of

14
  See Via Net, 211 S.W.3d at 313–15; Brown, 2012 WL 4662544, at *3–4 (noting that visible
defects are discoverable).
15
     See Via Net, 211 S.W.3d at 313–15; Brown, 2012 WL 4662544, at *3.
16
  See Via Net, 211 S.W.3d at 314; Clear Lake Ctr., L.P. v. Garden Ridge, L.P., 416 S.W.3d 527,
544 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding that discovery rule did not apply
because party could had sufficient information to discover breach by investigating).
17
     See Via Net, 211 S.W.3d at 314; Clear Lake Ctr., 416 S.W.3d at 544.

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limitations on Mahler’s claims because the discovery rule does not apply to the
residential-grade floors claim and because Mahler discovered the alleged defects
relating to the porches and interior-grade doors four years before Mahler filed suit.
But, the reason the discovery rule does not apply to any of Mahler’s claims is
because the type of injuries allegedly involved in these claims are not, by their
nature, unlikely to be discovered within the prescribed limitations period despite
due diligence and thus are not inherently undiscoverable. For this reason, the
discovery rule does not toll the statute of limitations on these claims.

      Though I respectfully decline to join the majority’s analysis, I concur in the
court’s judgment.




                                        /s/       Kem Thompson Frost
                                                  Chief Justice



Panel consists of Chief Justice Frost and Justices Boyce and Wise (Boyce, J.,
majority).




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