DEERFIELD LAND JOINTFROM A DISTRICT COURT VENTURE AND DB-WS LIMITED PARTNERSHIP, APPELLANTS, v. SOUTHERN UNION REALTY CO., APPELLEE

COURT OF APPEALS
FIFTH DISTRICT OF TEXAS
AT DALLAS
 
NO. 05-88-00546-CV
 
DEERFIELD LAND JOINTFROM A DISTRICT COURT
VENTURE AND DB-WS
LIMITED PARTNERSHIP,
 
        APPELLANTS,
 
v.
 
SOUTHERN UNION REALTY CO.,
 
        APPELLEE. OF DALLAS COUNTY, TEXAS
 
 
BEFORE JUSTICES HOWELL, LAGARDE AND WHITTINGTON
OPINION BY JUSTICE HOWELL
MAY 15, 1989
        Deerfield Land Joint Venture, formerly DCB Investment Company (Buyer), appeals a summary judgment rendered in favor of appellee Southern Union Realty Company (Seller) that Buyer take nothing on its claims of deceptive trade practices, fraud, and breach of contract. Buyer entered into a contract to purchase approximately twenty-five acres in San Antonio for construction of an apartment complex. Buyer maintains that in addition to price and financing terms, an essential provision of the sale agreement granted Buyer the right to erect a sign on property owned and to be retained by Seller at an intersection near the development to direct potential tenants to the property.
        The sale was scheduled to close in three phases. After the closing of the first phase, Buyer encountered problems with placement of the sign. The City of San Antonio issued a citation to Buyer in October 1983 asserting a violation of city zoning ordinances. The property owned by Buyer was zoned residential; the ordinance prohibited advertising signs and disallowed variance or special use permits because they conflicted with the character of the residential zoning classification. Buyer contacted Seller about the zoning problem and sought resolution in several possible ways, including a possible change in zoning from residential to commercial. Buyer claims Seller made assurances to correct the problem, and, based on these statements, Buyer closed on the second phase in May 1984. However, Buyer failed to file suit until May 30, 1986. Both Buyer and Seller moved for summary judgment.
        When both parties move for summary judgment, each party must carry his own burden, and neither may recover judgment because of the failure of the other to discharge his burden. Rio Bravo Oil Co. v. Hunt Petroleum Corp., 455 S.W.2d 722, 727 (Tex. 1970); Villareal v. Laredo Nat'l Bank, 677 S.W.2d 600, 605 (Tex. App.--San Antonio 1984, writ ref'd n.r.e.). The movant for summary judgment has the burden to show that no genuine issue of material fact exists, and that it is entitled to judgment as a matter of law. In deciding whether a disputed fact issue precluding summary judgment exists, evidence favorable to the non-movant is taken as true; every reasonable inference must be indulged and all doubts resolved in the non-movant's favor. CKB & Associates, Inc. v. Moore McCormack Petroleum, Inc., 734 S.W.2d 653, 655 (Tex. 1987); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984).
DTPA CLAIM
        The trial court held Buyer's claims under the Deceptive Trade Practices-Consumer Protection Act FN:1 were barred by the Act's two-year statute of limitations. That section provides in pertinent part:
 
        All actions brought under this subchapter must be commenced . . . within two years after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice.
TEX. BUS. & COM. CODE ANN. § 17.565 (Vernon 1987). The summary judgment evidence in the present case established that Buyer's DTPA claim accrued in October 1983, when Buyer first discovered the zoning restriction or, through the exercise of reasonable diligence, should have discovered the problem. Even if we extended the limitations period by 180 days, as permitted by section 17.565 of the DTPA when a defendant's conduct causes postponement of filing suit, Buyer's claim still would not have been timely filed. FN:2
        To counter Seller's asserted defense of limitations, Buyer maintained in its response to Seller's motion for summary judgment that Seller fraudulently concealed the basis for the lawsuit and was thus equitably estopped from asserting limitations as a defense. Fraudulent concealment is based on the doctrine of equitable estoppel. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983). Where a defendant is under a duty to make disclosure but fraudulently conceals the existence of a cause of action of plaintiff, defendant is estopped from relying on the defense of limitations until the party learns or should have learned of the cause of action. Id. at 908, and cases cited therein. In the present case, the arms-length transaction involving the sale of the property created no duty for Seller to investigate the zoning situation. See Fina Supply, Inc. v. Abilene Nat'l Bank, 726 S.W.2d 537, 540 (Tex. 1987). Further, Buyer offered no summary judgment proof that Seller fraudulently concealed the zoning problem or the existence of a possible lawsuit based on the zoning. Buyer became fully apprised of the zoning situation when it received the citation in October 1983. Thus, Buyer's claim of fraudulent concealment did not toll the limitations statute.
        A claim of equitable estoppel operates to prevent an opponent from pleading limitations if the opponent's representations induced the plaintiff to delay filing suit within the applicable limitations period. Cook v. Smith, 673 S.W.2d 232, 235 (Tex. App.--Dallas 1984, writ ref'd n.r.e.). The plaintiff must prove:
    (1) a false representation or concealment of material fact; (2) made with knowledge, actual or constructive, of the facts; (3) to a party without knowledge or the means of knowledge of the real facts; (4) with the intention that it should have been acted upon; and (5) the party to whom it was made must have relied upon or acted upon it to his prejudice.
Id. (citing Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952)). The burden is on plaintiff to produce summary judgment evidence sufficient to raise a fact issue on estoppel. Cook, 673 S.W.2d at 235.
        In the case at bar, Buyer did not carry the burden cast upon it by its special plea of estoppel. The summary judgment evidence fails to raise a fact issue whether Buyer, relying on Seller's assurances, postponed or refrained from filing this suit in reliance upon any representation by Seller. The summary judgment affidavit of Buyer states only that, "Because of representations by [Seller] that the problem would be resolved, I paid for Phase II of the property." Thus, the only reliance was in closing the second part of the sale, not in foregoing or delaying filing of the lawsuit. Equitable estoppel thus cannot prevent Seller from successfully asserting limitations. We hold, therefore, that Buyer's DTPA claim was barred by the two-year statute of limitations. TEX. BUS. & COM. CODE ANN. § 17.565 (Vernon 1987).
FRAUD
        Asserting fraud as an additional ground for summary judgment, Buyer urged the trial court to rescind the sales agreement based on claimed misrepresentations of fact by Seller, including alleged assurances of some legal right to place the sign and alleged assurances of attempts to change the zoning. The trial court denied recovery, holding that Seller's statements were representations of law that would not support an action for fraud. We agree with the trial court. Representations about the legal effect of a document are opinions and cannot form the basis of a fraud claim. Fina Supply Co., 726 S.W.2d at 540. The same holds true for representations as to what the law might be. Sawyer v. Pierce, 580 S.W.2d 117, 125 (Tex. Civ. App.--Corpus Christi 1979, writ ref'd n.r.e.). These pure expressions of opinion are not actionable as fraud. Trenholm v. Ratcliff, 646 S.W.2d 927, 930 (Tex. 1983). Similarly, a mistake of law is not a ground for rescission or cancellation of a contract. Pollard v. Steffens, 161 Tex. 594, 605, 343 S.W.2d 624, 626 (1961); First Coppell Bank v. Smith, 742 S.W.2d 454, 462 (Tex. App.--Dallas 1987, no writ); Ussery v. Hollybeke, 391 S.W.2d 497, 501 (Tex. Civ. App.--El Paso 1965, writ ref'd n.r.e.). We note that exceptions to these general rules were outlined in a recent case of this Court, First Coppell Bank v. Smith, where the Court said:
    The deciding factor in Texas cases, in distinguishing between antecedent legal rights and general law, appears to be whether the party seeking rescission complains of mistaken legal effect of the document he seeks to rescind, or of his belief as to the state of the law which caused him to execute the agreement.
First Coppell Bank, 742 S.W.2d at 462. The Court construed the former as a mistake of fact that is actionable, but apparently concluded the latter, as a mistake of law, was not actionable. Id. at 463.
        In this case, both parties agree that they entered into the sales agreement believing that Buyer could erect a directional sign on part of the property. Only after Buyer received a citation and actual notice of the residential zoning did a conflict arise. We conclude that the parties' mistake was one of general law, not one relating to antecedent, private legal rights that might be treated as a mistake of fact and grounds for a fraud claim. Being a mistake of law, the representations by Seller about the zoning change were not actionable, nor could they serve as grounds for rescission of the sales agreement. We find no error in the trial court's denial of recovery on the fraud claim.
BREACH OF CONTRACT
        In a third ground for summary judgment, Buyer claimed Seller breached the provision in the contract that states in pertinent part:
 
    Seller hereby covenants, represents and warrants to [Buyer] the following:
     (b)    [Buyer] has the right to place directional signs to [Buyer's] development on the Southeast corner of the Braesview and Larkspur intersection.
In defense of Buyer's breach of contract claim, Seller asserted that the contract provision was illegal and therefore void. The trial court found the San Antonio zoning ordinance rendered the contractual provision illegal and denied Buyer's recovery for breach of contract.
        In this case, neither Buyer nor Seller claimed the sign provision to be ambiguous. Absent an ambiguity, construction of a written instrument is a question of law for the court. Westwind Exploration, Inc. v. Homestate Sav. Ass'n, 696 S.W.2d 378, 381 (Tex. 1985). See also Manes v. Dallas Baptist College, 638 S.W.2d 143, 145 (Tex. App.--Dallas 1982, writ ref'd n.r.e.). If the contract can be given a definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law. Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983); Corriveau v. 3005 Inv. Corp., 697 S.W.2d 766, 767 (Tex. App.--Corpus Christi 1985, writ ref'd n.r.e.).
        With these principles in mind, we turn to the disputed contract provision. Although the clause employed the terminology "represents and warrants," we conclude that the contract did no more than grant to Buyer Seller's permission to place the sign. The clause did not warrant, either expressly or impliedly, that the applicable law would permit Buyer to install or maintain the sign.
        Where a buyer has a right in property but claims fraudulent statements were made concerning the property, he must exercise reasonable diligence to discover the defect when the records or other information are open to him; if by such diligence he could have discovered the claimed defect, he is held to have had knowledge. See Sherman v. Sipper, 137 Tex. 85, 152 S.W.2d 319, 321 (1941). Cf. Sutton v. Grogan Supply Co., 477 S.W.2d 930, 936 (Tex. Civ. App.--Texarkana 1972, no writ) (in view of arms-length transaction and failure to show fiduciary relationship, the fact that party trusted seller is not sufficient grounds to excuse failure to use reasonable diligence); Eastman v. Biggers, 434 S.W.2d 439, 443 (Tex. Civ. App.--Dallas 1968, no writ) (the law does not permit a person to close his eyes to facts which would put him on inquiry and requires him to exercise reasonable diligence). As we stated previously, this arms-length transaction imposed upon Seller no duty to investigate or disclose the zoning; Buyer should have investigated the zoning before he signed the contract. Cf. Jones v. Herring, 16 S.W.2d 325, 328 (Tex. Civ. App.--Texarkana 1929, writ dism'd) (the slightest inquiry would have revealed the pertinent information; if purchaser does not avail himself of knowledge open to him, he cannot later say he was deceived by seller's misrepresentations). In this case, the summary judgment proof reflects no action by the Seller that prevented Buyer from erecting the directional sign, the type of conduct which might constitute a breach of contract. Consequently, we conclude Seller did not breach the contractual provision. With no breach, we need not discuss Seller's defense to the breach--illegality.
        We overrule both of Buyer's points of error and affirm the trial court's summary judgment.
                                                          
                                                          CHARLES BEN HOWELL
                                                          JUSTICE
 
 
DO NOT PUBLISH
TEX. R. APP. P. 90
88-00546.F
 
FN:1 TEX. BUS. & COM. CODE ANN. §§ 17.41-17.63 (Vernon 1987).
FN:2 We note, however, that Buyer offered no summary judgment proof that Seller's statements or conduct caused Buyer to delay or forego filing of this suit. The only recitation in Buyer's summary judgment affidavit states that Buyer, relying on Seller's assurances to correct the sign problem, closed the second phase of the land purchase. Thus, the extension provision of the DTPA could not be invoked.
File Date[01-02-89]
File Name[880546F]