B. Mahler Interests, LP v. DMAC Construction, Inc.
14-15-00061-CV
| Tex. App. | Nov 9, 2015Background
- Mahler hired DMAC as general contractor to build Briscoe Manor (event/wedding venue); contract signed in 2005, substantial completion certified October 25, 2006.
- Post‑completion inspections (2007 Robinson report) noted sags/unevenness in porch roofs/soffits and suspected structural issues; Robinson recommended builder investigation and disclaimed ability to detect latent defects.
- DMAC performed cosmetic repairs (screws, caulk, joint compound/texture) and repeatedly told Mahler the porches and doors were "fixed" and suitable for exterior/commercial use.
- Beginning ~2010–2011 Mahler observed premature wear of floors; May 2011 vendor/manufacturer indicated residential‑grade flooring had been installed. May 22, 2012 structural engineer Schilder reported interior‑grade doors, residential floors, and latent structural framing defects in porches.
- Mahler sued October 26, 2012 for breach of contract and warranty and pleaded discovery rule, fraudulent concealment, and equitable estoppel to toll limitations. DMAC moved for traditional and no‑evidence summary judgment on limitations defenses; trial court granted DMAC's motion (final summary judgment dated Oct. 17, 2014) dismissing Mahler's claims.
Issues
| Issue | Plaintiff's Argument (Mahler) | Defendant's Argument (DMAC) | Held (trial court) |
|---|---|---|---|
| 1. No‑evidence motion specificity | No‑evidence motion lacked specificity as to elements challenged; should be denied | Motion properly filed as amended traditional and no‑evidence motion | Trial court granted motion (despite oral denial earlier) |
| 2. Summary judgment granted on fraudulent concealment re: porches | DMAC did not plead fraudulent concealment as to porches in its motion; granting SJ on that ground was error | Reply amended/clarified grounds to include porches | Trial court entered final SJ disposing of all claims |
| 3. Contractual accrual clause vs. discovery rule | Contract (AIA art.13.7) cannot conclusively negate discovery rule where owner unsophisticated, unrepresented, and contractor fraudulently concealed defects; public policy and Tex. Civ. Prac. & Rem. Code §16.009(e)(3) protect claims | Accrual clause deems causes accrued by final certificate and can bar discovery tolling; parties freely contracted for accrual term | Trial court treated contractual accrual/limitations as negating Mahler's tolling defenses and granted SJ |
| 4. Fraudulent concealment / equitable estoppel | Fact issues exist on reasonable diligence and purposeful concealment (affirmative misrepresentations and concealment of latent defects); estoppel preserves claims on doors/floors/porches | Plaintiff had access to information and observed problems earlier; reliance/unreasonable diligence arguments fail as a matter of law | Trial court granted SJ on limitations (dismissing claims); Mahler appeals |
Key Cases Cited
- Timpte Indus. v. Gish, 286 S.W.3d 306 (Tex. 2009) (no‑evidence summary‑judgment specificity rule and standard)
- McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337 (Tex. 1993) (motion for summary judgment must stand or fall on grounds expressly presented)
- BP Am. Prod. Co. v. Marshall, 342 S.W.3d 59 (Tex. 2011) (fraudulent‑concealment tolling requires reasonable diligence; sophisticated parties can be charged with discovering public information)
- Moreno v. Sterling Drug, Inc., 787 S.W.2d 348 (Tex. 1990) (discovery rule principles for inherently undiscoverable injuries)
- Velsicol Chem. Co. v. Winograd, 956 S.W.2d 529 (Tex. 1997) (limitations and accrual principles in tort/contract contexts)
- Tenowich v. Sterling Plumbing Co., Inc., 712 S.W.2d 188 (Tex. App. — Houston [14th Dist.] 1986) (discovery rule accrual: claim accrues when plaintiff knew or should have known facts giving rise to cause of action)