Integrated of Amarillo, Inc. v. Pinkston-Hollar Constr. Servs., Inc.

INTEGRATED OF AMARILLO, INC. D/B/A PLUM CREEK SPECIALTY HOSPITAL, APPELLANT

v. PINKSTON-HOLLAR CONSTRUCTION SERVICES, INC.,D/B/A CONSTRUCTION SERVICES, A TECTA AMERICA CORP. COMPANY, APPELLEE

No. 07-11-0422-CV

Court of Appeals Seventh District of Texas at Amarillo

April 2, 2013

On Appeal from the 251st District Court

Potter County, Texas

Trial Court No. 97336-C, Honorable Ana Estevez, Presiding

MEMORANDUM OPINION

Before Quinn, C.J., and Campbell and Pirtle, JJ.

Appellee Pinkston-Hollar¹ obtained a summary judgment against appellant Plum Creek² for damages arising from breach of a construction contract. On appeal, PlumCreek asks us to reverse and render judgment in its favor on its limitations affirmative defense, which it had asserted by means of a motion for summary judgment. We find the record presents no evidence that Pinkston-Hollar's suit was barred by limitations and will affirm the judgment of the trial court.

Background

Pinkston-Hollar contracted in writing with Plum Creek for the replacement of the roof on Plum Creek's hospital building. The cost of the project was $189,654. In relevant part, the parties' agreement provided, "Payable at Amarillo, Texas, as follows: 50% of contract at job start up, balance due within 15 days of completion." The document does not define "job start up" or "completion" and the meanings of these terms are not established by the summary judgment record. However, the parties state in their briefs that the work began January 31, 2005 and was "completed" March 31, 2005.

The record contains two invoices from Pinkston-Hollar to Plum Creek. The first is numbered 8091 and dated January 31, 2005. Under the heading "description" it states: "50% of contract price (192,654.00) (sic) per contract $96,327.00." Under the heading "terms," the document states "net 30."³

The second invoice is numbered 8111 and dated March 31, 2005. Under the heading "description," the invoice states:

+-----------------------------------------------------+
¦Pay request #2-final                   ¦             ¦
+---------------------------------------+-------------¦
¦Contract 100% complete                 ¦$189,654.00  ¦
+---------------------------------------+-------------¦
¦Less payrequest (sic) #1 (invoice 8091)¦$ (96,327.00)¦
+---------------------------------------+-------------¦
¦Due                                    ¦$ 93,327.00  ¦
+-----------------------------------------------------+

***

*Notes: Contract amount was shown incorrectly on payrequest #1

Correct amount is $189,654.00

Payment for invoice #8091 is past due, please remit.

Under the heading "terms" the invoice states "net 30."

The record also contains copies of two checks drawn in May and June 2005 totaling $93,327 which, Plum Creek asserts, together represented its payment of the March 31 invoice.

On February 24, 2009, Pinkston-Hollar filed suit against Plum Creek on the contract. The petition alleges Plum Creek "defaulted in paying the debt evidenced by the Contract. There is currently due the sum of $96,327.00, plus accrued interest as provided for in the agreement."

Pinkston-Hollar moved for summary judgment on its breach of contract claim but the motion was initially denied. Plum Creek then moved for summary judgment on the defensive theory that Pinkston-Hollar's claim was barred by limitations for untimely filing or, alternatively, because Pinkston-Hollar failed to diligently serve Plum Creek with process. This motion was also denied. Pinkston-Hollar later moved for rehearing of its motion for summary judgment. On rehearing, the trial court granted the motion andawarded Pinkston-Hollar contract damages, attorney's fees, and prejudgment and post-judgment interest. This appeal followed.

Analysis

Through its two issues on appeal, Plum Creek argues Pinkston-Hollar's case either was filed outside the limitations period or was filed within the period but service of process outside the period was not diligently effected.

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In so doing, we examine the entire summary judgment record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778, 782 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 824-25 (Tex. 2005). When both parties move for summary judgment and the trial court grants the motion of one party and denies the motion of the other, the non-prevailing party may challenge on appeal the summary judgment rendered against it and the denial of its motion. Holmes v. Morales, 924 S.W.2d 920, 922 (Tex. 1996); Auto. Ins. Co. v. Young, 85 S.W.3d 334, 338 n.2 (Tex.App.--Amarillo 2002, no pet.). In such instances, we review the summary judgment evidence presented by both sides and determine all questions presented, and may render the judgment the trial court should have rendered. Mid-Continent Cas. Co. v. Global Enercom Mgmt., 323 S.W.3d 151, 153-54 (Tex. 2010) (per curiam); Holmes, 924 S.W.2d at 922; Young, 85 S.W.3d at 338 n.2. A defendant moving for summary judgment on an affirmative defense, such asthe statute of limitations, bears the burden of conclusively proving all elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).

The four-year residual limitations period of Civil Practice and Remedies Code § 16.051 applies to a breach of contract action. Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (West 2008); Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002); West v. Proctor, 353 S.W.3d 558, 564 (Tex.App.--Amarillo 2011, pet. denied). The limitations period runs from the day the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (West 2008); Via Net v. TIG Ins. Co., 211 S.W.3d 310, 315 (Tex. 2006). A cause of action for breach of contract accrues when a party is injured by the actions or omissions of another. Barker v. Eckman, 213 S.W.3d 306, 311 (Tex. 2006) (citing Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990) ("A cause of action can generally be said to accrue when the wrongful act effects an injury")).

A construction contract is generally a continuing contract under which "the contemplated performance and payment is divided into several parts or, where the work is continuous and indivisible, the payment for work is made in installments as the work is completed." Hubble v. Lone Star Contracting Corp., 883 S.W.2d 379, 381-82 (Tex.App.--Fort Worth 1994, writ denied) (citing Godde v. Wood, 509 S.W.2d 435, 441 (Tex.Civ.App.--Corpus Christ 1974, writ ref'd n.r.e.)); City and County of Dallas Levee Improvement Dist. v. Halsey, Stuart & Co., Inc., 202 S.W.2d 957, 961 (Tex.Civ.App.--Amarillo 1947, no writ)). On a continuing contract, limitations runs at the earlier of (1) the completion of the work; (2) the termination of the contract under its own terms; or (3) the anticipatory repudiation of the contract by one party and the adoption of the repudiation by the other party. Hubble, 883 S.W.2d at 382; see Godde, 509 S.W.2d at441 ("Where a claim for work, labor, or materials performed or furnished is the outgrowth of an entire contract for continuous work, labor or materials (until the work project has been completed), the claim will be treated and considered as an entire demand and limitations will not commence to run until the contract has been finished"). Repudiation is conduct showing a fixed intention to abandon, renounce, and refuse to perform the contract. Hubble, 883 S.W.2d at 382.

In contrast, if a contract requires fixed, periodic payments, a separate cause of action arises for each missed payment. Davis Apparel v. Gale-Sobel, A Division of Angelica Corp., 117 S.W.3d 15, 18 (Tex.App.--Eastland 2003, no pet.). In such instances, the party claiming injury has four years from each breach to bring suit. F.D. Stella Prods. Co. v. Scott, 875 S.W.2d 462, 465 (Tex.App.--Austin 1994, no writ).

Here the contract specifies that in consideration for the sum of $189,654 Pinkston-Hollar would furnish all labor and materials necessary to replace the roof on Plum Creek's hospital building. The...