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Heron Financial Corporation v. United States Testing Company6/19/1996
Appellants Heron Financial Corporation, Heron Residential Joint Venture I, and Montecito Joint Venture (collectively "Heron") sued appellees United States Testing Company ("U.S. Testing"), CH&A;Corporation ("CH&A;), and Marshall & Stevens, Inc. ("Marshall"), alleging negligent misrepresentation and breach of contract. Appellees moved for summary judgment, claiming that the statute of limitations barred appellants' causes of action. The trial court rendered judgment in appellees' favor. We will reverse the trial court's judgement and remand the cause for further proceedings.
BACKGROUND
Contemplating the purchase of the Montecito Apartments, Heron hired Marshall to perform a pre-purchase due diligence assessment of the property. According to appellees, Marshall, in turn, hired U.S. Testing and Construction Surveillance Services ("CSS") to conduct structural and environmental assessments of the property. U.S. Testing and CSS now collectively constitute CH&A;
CH&A;delivered a "Phase I Report" to Heron on July 24, 1989. The report, based upon a review of government records and a visual inspection of the property, revealed no hazardous materials (other than minimal amounts of maintenance supplies) and no documented evidence of soil or groundwater contamination on the property. On the same date, CH&A;also delivered to Heron a "Limited Condition Assessment" of the property. The assessment noted movement or settling in several of the buildings and recommended that Heron perform an engineering study to obtain further information about the cause of the movement.
Heron purchased the property in August 1989. On March 2, 1990, CH&A;delivered another report to Heron. This report notified Heron that a landfill existed adjacent to the Montecito property. However, the report noted that the landfill posed no environmental hazard to the property.
Sometime in 1992, methane gas began to surface from underneath the Montecito property. Heron eventually hired the Radian Corporation ("Radian") to conduct an environmental assessment of the property. Radian discovered that the property sat, in part, atop an old landfill. Radian advised that the landfill contained "several physical hazards which pose a potential threat to human health and to structures." Furthermore, Radian noted that hazardous quantities of methane gas were found underneath the property.
In March 1994, Heron sued appellees alleging negligent misrepresentation and breach of contract. CH&A;filed a motion for summary judgment, claiming that (1) the statute of limitations barred Heron's claims, and (2) no contract existed between Heron and CH&A; The trial court granted CH&A;s motion.
Marshall filed its own motion for summary judgement claiming that the statute of limitations barred Heron's claims against it. Heron amended its petition alleging that Marshall fraudulently concealed discovery of the facts of the injury. The trial court granted Marshall's motion.
DISCUSSION
In their first point of error, appellants complain that their claims are not time-barred because the discovery rule tolled the statute of limitations. Appellants argue that a genuine issue of material fact exists as to when they should have discovered the nature of their injury.
In applying the statute of limitations, a tort action accrues when the wrongful act effects an injury, regardless of when the plaintiff learns of such injury. Moreno v. Sterling Drug Co. Inc., 787 S.W.2d 348, 351 (Tex. 1990). In a breach of contract action, limitations generally begin to run from the time of the breach. See Enterprise-Laredo Assocs. v. Hachar's, I
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