Brenda S. Cannon v. University Trace Condominium Association--Appeal from 157th District Court of Harris County

Affirmed in Part, Reversed and Remanded in Part, and Majority and Dissenting Opinions filed July 7, 2005

Affirmed in Part, Reversed and Remanded in Part, and Majority and Dissenting Opinions filed July 7, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-00993-CV

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BRENDA S. CANNON, Appellant

V.

UNIVERSITY TRACE CONDOMINIUM ASSOCIATION, Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 00-46115

D I S S E N T I N G O P I N I O N

I respectfully disagree with the majority=s conclusion that the trial court erred by granting summary judgment in favor of UTCA on Cannon=s breach of contract claim. The majority=s reliance on the theory of continuing breach of contract is misplaced.

As the majority noted, the limitations period for a breach of contract cause of action is four years. Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). A claim for breach of contract accrues when the contract is breached. Id. The breach in this case accrued at the latest on November 1, 1993, the date on which Cannon sent her complaint of Acontinual leaking of the outside wall of [her] residence.@ Cannon was required to bring a claim based on this breach within four years of her complaint letter. Because Cannon did not bring suit against UTCA until September 8, 2000, her claims for breach of contract are barred by limitations.

The majority relies on Salais v. Martinez, 603 S.W.2d 296 (Tex. Civ. App.CEl Paso 1980, no writ), and Kaiser v. Northwest Shopping Center, Inc., 587 S.W.2d 454 (Tex. Civ. App.CDallas 1979, writ ref=d n.r.e.), as standing for the propositions that (1) where a party to a contract has undertaken a continuing duty to the other party, the duty constitutes a continuing covenant and each failure to perform is a separate breach and (2) a cause of action for failure to perform the duty exists so long as breaches of the covenant continue. Salais is a damages case, and it is not applicable here. See Salais, 603 S.W.2d at 296. Further, I believe the majority has misconstrued Kaiser. Kaiser addresses whether a lessee suing for breach of the lease was required to assert his claim as part of a compulsory counterclaim in an earlier suit. Kaiser, 587 S.W.2d at 455. In determining that lessee=s claim was not barred by the earlier suit, the court addressed the issues of complete and partial breaches in a contract as well as continuing contracts, but not continuing breach. See id. at 457B58.

Further, the majority relies on McCreless Properties, Ltd. v. F.W. Woolworth Co., 533 S.W.2d 863 (Tex. Civ. App.CSan Antonio 1976, writ ref=d n.r.e.), as standing for the proposition that a claim for breach of contract based on a continuing duty to repair is not barred by the statute of limitations simply because the original leak occurred outside the statute. McCreless involved a breach of contract suit by a tenant against a landlord for the recovery of damages caused by a collapsed roof. Id. at 864. The roof originally began leaking in 1969; repairs were made; there was another leak in 1971; and suit was brought in 1973 after the roof collapsed. Id. at 865. McCreless, the landlord, argued that the suit should be barred by the four-year statute of limitations. Id. at 866. In holding that the claim was not barred by limitations, the San Antonio Court of Appeals relied on a jury finding that additional repairs were first needed in 1971. Id. at 867. The court noted that this finding was apparently based on the mutual belief by the parties that the repair efforts in 1969 were successful. Id.

Here, there is no agreement that UTCA was ever successful in its repair efforts. In her original complaint letter, Cannon writes of Acontinual leaking@; in her deposition, she stated that A[t]here were continuous leaks from the outside wall that I always reported@ and that over the years she made at least two written requests and over a dozen verbal requests that the leaks be remedied. Because the leaks in the walls were never properly repaired while Cannon lived in the condo, this was not a series of separate breaches, but one breach that was never properly remedied.

Because I disagree with the majority=s reliance on a continuing breach of contract theory, I would hold that Cannon was required to bring suit within four years of her written complaint regarding the leak. Accordingly, I would affirm the trial court=s grant of summary judgment in favor of UTCA on all grounds.

For these reasons, I dissent.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Majority and Dissenting Opinions filed July 7, 2005.

Panel consists of Justices Yates, Anderson, and Hudson. (Anderson, J. Majority)