                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-14-00365-CV


BIENES RAICES VENTURES, LP                                           APPELLANT

                                        V.

FIRST FINANCIAL BANK, N.A.                                             APPELLEE


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          FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 236-268524-13

                                     ----------

                         MEMORANDUM OPINION 1

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      This is an appeal from a summary judgment. Appellant Bienes Raices

Ventures, LP (Ventures) sued Appellee First Financial Bank, N.A. for negligence

and breach of contract. The trial court granted summary judgment for First Bank

on limitations grounds. In three issues, Ventures argues that the trial court erred

by granting summary judgment for First Bank on Ventures’s claims and by

      1
       See Tex. R. App. P. 47.4.
denying partial summary judgment for Ventures on its breach of contract claim.

Because we hold that the trial court did not err, we affirm.

                                   Background

      In August 2007, Ventures executed a promissory note with First Bank and

a construction contract with another party, Chateau Home Builders, Ltd.

(Builder).    The three parties also executed a Tri-Party Construction Loan

Agreement Disbursement Disclosure Agreement (the disbursement disclosure

agreement).      Under the disbursement disclosure agreement, the parties

acknowledged that Ventures had borrowed $872,841.76 from First Bank for

construction of a home by Builder and that the total amount to be paid to Builder

was $875,000.      Under that agreement, First Bank would follow a specific

procedure and use specific forms relating to the advances it made under the

agreement, including obtaining written verifications of progress made by Builder

and disclosing those verifications to Ventures before advancing any funds.

      Builder failed to complete the home within the twelve months specified in

the agreement. Instead, Builder sent Ventures an email stating that an additional

$40,000 was required to complete the home, that over $34,000 in suppliers were

yet to be paid, and that Builder could not pay for appliances that had yet to be

delivered.

      Ventures sued First Bank on September 30, 2013. Ventures alleged that

First Bank had failed to comply with the contractual procedures set out in the

disbursement      disclosure   agreement,      relying   instead   on   telephonic


                                          2
representations by Builder about how much work it had completed. Ventures

contended that the representations by Builder were false.

      Ventures alleged that First Bank failed to retain ten percent of Builder’s

draws as required by property code section 53.101 and that instead, as Ventures

took steps to complete the work and pay contractors, First Bank demanded that

Ventures sign an additional loan for $107,052.86.        After Ventures did so, it

discovered Builder’s overdraws and filed suit. Ventures attached to its petition a

copy of the disbursement disclosure agreement.

      Both parties filed motions for summary judgment. Ventures filed a motion

for partial summary judgment on its breach of contract claim. First Bank filed a

motion for summary judgment on all of Ventures’s claims on the ground that the

applicable limitation period for each claim had passed before the suit was filed.

      First Bank also attached a letter, dated August 21, 2007, and signed by an

officer of the bank and by Nathan Graves, sole member of Ventures’s general

partner. The letter confirmed that Graves had given verbal authorization for First

Bank to process all draw requests by Builder. It stated that when First Bank

received a request for a disbursement, it would verify by either periodic

inspection or telephone conversation how much work had been completed. In

Ventures’s response to First Bank’s motion, it raised the discovery rule.

      After a hearing, the trial court signed a final summary judgment ordering

that Ventures take nothing by its suit.




                                          3
                              Standard of Review

      A plaintiff is entitled to summary judgment on a cause of action if it

conclusively proves all essential elements of the claim. 2 A defendant is entitled

to summary judgment on an affirmative defense if the defendant conclusively

proves all the elements of the affirmative defense. 3      To accomplish this, the

defendant-movant must present summary judgment evidence that conclusively

establishes each element of the affirmative defense. 4

      We review a summary judgment de novo. 5            We consider the evidence

presented in the light most favorable to the nonmovant, crediting evidence

favorable to the nonmovant if reasonable jurors could, and disregarding evidence

contrary to the nonmovant unless reasonable jurors could not. 6       We indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor. 7

The summary judgment will be affirmed only if the record establishes that the




      2
       See Tex. R. Civ. P. 166a(a), (c); MMP, Ltd. v. Jones, 710 S.W.2d 59, 60
(Tex. 1986).
      3
       Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see
Tex. R. Civ. P. 166a(b), (c).
      4
       See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008).
      5
       Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
      6
      Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844,
848 (Tex. 2009).
      7
       20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).


                                        4
movant has conclusively proved all essential elements of the movant’s cause of

action or defense as a matter of law. 8

      When both parties move for summary judgment and the trial court grants

one motion and denies the other, the reviewing court should review both parties’

summary judgment evidence and determine all questions presented. 9             The

reviewing court should render the judgment that the trial court should have

rendered. 10

                                    Discussion

      In Ventures’s first issue, it argues that the trial court erred by denying it

summary judgment on its breach of contract claim. In its second issue, it argues

that the trial court erred by granting summary judgment for First Bank on the

ground of limitations on Ventures’s negligence and negligence per se claims. In

Ventures’s third issue, it asserts that the trial court erred by granting summary

judgment for First Bank on the ground of limitations on Ventures’s breach of

contract claim. We consider Ventures’s second and third issues together, and

we address them first.




      8
         City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.
1979).
      9
      Mann Frankfort, 289 S.W.3d at 848; see Myrad Props., Inc. v. Lasalle
Bank Nat’l Ass’n, 300 S.W.3d 746, 753 (Tex. 2009).
      10
          Mann Frankfort, 289 S.W.3d at 848.


                                          5
       Ventures did not expressly raise the discovery rule in its pleadings or

summary judgment motion. The only parts of its pleading that could constitute a

reference to the rule are a statement that its claims were timely filed and a

statement (arguably contradicted earlier in its pleading) that it was only after

September 30, 2009, that it discovered the breach of contract and negligent over-

advancement. 11 The first time Ventures specifically asserted the applicability of

the discovery rule was in its response to First Bank’s summary judgment motion.

Even if the statements in its pleadings did not raise the discovery rule, however,

First Bank raised the issue in its answer and its summary judgment motion and

attached evidence to the motion to negate it. Accordingly, the issue of whether

the discovery rule applies was before the trial court and is therefore before this

court. 12

       The limitation period for a negligence claim is two years. 13 The limitation

period for a breach of contract claim is four years. 14     This suit was filed on

       11
        See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006) (stating
that a defendant need not negate the discovery rule if the plaintiff does not plead
it); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988) (“A
matter in avoidance of the statute of limitations that is not raised affirmatively by
the pleadings will . . . be deemed waived.”).
       12
        See Via Net, 211 S.W.3d at 313 (“When Safety Lights asserted the
discovery rule for the first time in its summary judgment response, Via Net had
two choices: it could object that the discovery rule had not been pleaded, or it
could respond on the merits and try the issue by consent.”).
       13
            Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (West Supp. 2014).
       14
            Id. § 16.051 (West 2015).


                                          6
September 30, 2013.        As a defendant seeking summary judgment on the

affirmative defense of limitations, First Bank had the burden to establish as a

matter of law that Ventures’s negligence claims accrued more than two years

before September 30, 2013, and that Ventures’s breach of contract claim

accrued more than four years before September 30, 2013. 15           And, once the

discovery rule was put at issue in the trial court, First Bank also had the burden

of negating the applicability of the discovery rule. 16

      The limitation period starts running when a claimant learns of a wrongful

injury, even if the claimant does not yet know the cause of the injury, the full

extent of the injury, or who is responsible. 17 The discovery rule applies to delay

the running of the limitation period when the injury complained of is inherently

undiscoverable. 18 An injury is inherently undiscoverable if it is unlikely to be

discovered within the prescribed limitation period despite due diligence. 19

      The injuries alleged by Ventures were that it had to pay more than the

contracted-for amount to complete the home and that because the home was not


      15
        See Chau, 254 S.W.3d at 455.
      16
       See Yancy v. United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782
(Tex. 2007) (observing that once a plaintiff has pled the discovery rule, the
defendant must negate it).
      17
        Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194, 207 (Tex. 2011).
      18
        Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 531 (Tex. 1997).
      19
        S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996).


                                           7
completed on time, it had to pay more in interest than it should have had to, the

home lost value, and it suffered loss of the use of the home.

         To its summary judgment motion, First Bank attached a copy of the

disbursement disclosure agreement, which called for First Bank to disburse to

Builder up to $875,000 using the procedures outlined in the agreement.         It

obliged Builder to complete the house within twelve months.

         First Bank also attached an email from an employee of Builder, dated

November 5, 2008, stating that Builder had already spent on construction more

than the loan amount. The email further stated that an agreed-upon completion

date of November 15, 2008 was “not realistic.” This email was in response to an

email from a vice president of Ventures, also attached to First Bank’s motion,

which stated that Ventures wanted the house completed on schedule by the

November deadline or it would have to pursue its legal rights under the

construction contract.

         Another November 2008 email from the same Ventures vice president

acknowledged that Builder had not completed the house and would not be doing

so. A November 2008 email from a First Bank employee to Ventures’s vice

president stated that the loan had been fully funded. The emails referenced a

second loan taken in September 2008 to fund the construction of a swimming

pool and for other upgrades to the house and stated that the outstanding bills

plus construction work still to be completed would take more than the remaining

funds.


                                        8
      Ventures’s summary judgment response attached depositions of the First

Bank employee who approved the disbursements and of Graves, and the

testimony in these depositions also showed that all of the funds of the original

loan were disbursed by First Bank as of May 2008, and all of the funds of the

additional September 2008 loan were disbursed as of November 2008. After

November 2008, Ventures took over supervising the construction and paying

contractors.

      Accordingly, the summary judgment evidence showed that there was no

issue of material fact about whether, by November 2008, Ventures knew that the

house had not been completed on time and that despite the non-completion, all

of the funds that First Bank was to disburse under the loan and the disbursement

disclosure agreement had already been paid out to Builder. Accordingly, as of

that time, Ventures knew of its injury.

      Ventures cites to Horwood v. Wagner & Brown, Ltd. for the proposition that

an injury is undiscoverable when the information needed to discover the injury

can only be obtained from the party causing the injury. 20 Horwood was reversed

by the Supreme Court of Texas, a fact not noted by Ventures in either its opening

brief or its reply brief. 21 But even were we to agree with the reasoning of the

      20
         61 S.W.3d 1, 6 (Tex. App.—El Paso 1999), rev’d, 58 S.W.3d 732 (Tex.
2001).
      21
        See Wagner & Brown, Ltd. v. Horwood, 58 S.W.3d 732, 737 (Tex. 2001)
(reversing the court of appeals and stating that there were other sources of
information from which the appellees could have discovered their injury).


                                          9
court of appeals in Horwood, it is inapplicable—Ventures knew of its injury in

November 2008, even if it did not know then the full extent of the injury or who

was responsible.

      Ventures also cites to Chemd Inc. v. KPMG Peat Marwick, L.L.P. for the

proposition that the complicated nature of the injury made its discovery inherently

undiscoverable. 22 It contends that it took a certified public accountant and a

lawyer analyzing the records to uncover the injury.      Chemd, which was not

designated for publication and has no precedential value, does not help

Ventures. In Chemd, the Dallas court of appeals discussed the Supreme Court

of Texas case Murphy v. Campbell. 23 It noted that under Murphy, because it is

unlikely that a lay person would know that the tax advice the person is receiving

is faulty, an injury from accounting malpractice is inherently undiscoverable; “the

very reason a client seeks expert advice in tax matters is because such matters

are often not within the average person’s common knowledge.” 24 But here, as

we have stated, Ventures did know of its injuries. First Bank produced evidence

establishing that, in 2008, Ventures was aware that the house had not been

completed on time, that the money borrowed from First Bank for the construction

had been disbursed, and that Builder did not have the money to complete the


      22
       No. 05-00-00816-CV, 2001 WL 893989, at *4 (Tex. App.—Dallas Aug. 9,
2001, pet. denied) (not designated for publication).
      23
        964 S.W.2d 265, 270 (Tex. 1997).
      24
        Chemd, Inc., 2001 WL 893989, at *4.


                                        10
work. Ventures produced no evidence raising a fact issue about its knowledge of

those facts.

      Ventures further argues that the disbursement disclosure agreement was a

continuing contract, and therefore the claim for breach of contract did not accrue

until the contract had been completed, which it contends occurred when a new

loan agreement was signed in September 2009. We disagree. Even assuming

that the disbursement disclosure agreement was a continuing contract,

limitations run on a continuing contract when work is completed, it terminates by

its own terms, or the contract is anticipatorily repudiated by one party and the

repudiation is accepted by the other party. 25 First Bank’s evidence showed that

in 2008, Builder disclosed that it would not be finishing the construction on time

and that First Bank had disbursed all the money that was supposed to be paid

out to Builder.    Ventures then assumed responsibility for completing the

construction. Thus, by November 2008, Builder had repudiated its contractual

responsibilities, Ventures had taken over, and, having advanced all of the funds,

there was nothing left for First Bank to disburse under the disbursement

disclosure agreement.

      Accordingly, we hold that the summary judgment evidence demonstrated

that the discovery rule does not apply, that the limitation period began to run in

November 2008, and that therefore Ventures’s claims were barred by the

      25
      Hubble v. Lone Star Contracting Corp., 883 S.W.2d 379, 382 (Tex.
App.—Fort Worth 1994, writ denied).


                                       11
applicable statutes of limitation. We consequently hold that the trial court did not

err by granting summary judgment on Ventures’s breach of contract and

negligence claims. We overrule Ventures’s second and third issues.

      Because we have held that the trial court did not err by granting summary

judgment for First Bank on the basis of limitations, we further hold that the trial

court did not err by denying partial summary judgment for Ventures. We overrule

Ventures’s first issue.

      Having overruled all of Ventures’s issues, we affirm the trial court’s

summary judgment.




                                                   /s/ Lee Ann Dauphinot
                                                   LEE ANN DAUPHINOT
                                                   JUSTICE

PANEL: DAUPHINOT, WALKER, and MEIER, JJ.

DELIVERED: June 18, 2015




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