Opinion
No. 05-16-00957-CV
05-10-2017
PROTEGGA, LLC, Appellant v. RMB BRANDYWINE PLACE, LTD, Appellee
On Appeal from the County Court at Law No. 7 Collin County, Texas
Trial Court Cause No. 007-02668-2015
MEMORANDUM OPINION
Before Justices Lang, Myers, and Stoddart
Opinion by Justice Stoddart
Protegga, LLC appeals from an adverse summary judgment ruling in favor of RMB Branywine Place, Ltd. In two issues, Protegga argues the trial court erred by granting RMB's motion for summary judgment. We affirm the trial court's judgment.
FACTUAL BACKGROUND
On November 11, 2009, Protegga and RMB entered into a Standard Commercial Lease for Protegga to lease office space from RMB (Lease). In 2012, Protegga began noticing foundation defects on the premises and complained to RMB. RMB attempted to repair the foundation, but was unsuccessful and problems persisted. In August 2013, the parties entered into a First Amendment to the Lease, which extended the term of the Lease by six years (Amendment). The Amendment states:
6. Lessee accepts the Demised Premises in an 'AS IS' condition, except for the following work to be completed by Lessor using standard building materials:
• Build out the Leased Premises as shown on Exhibit A
• Mud jack foundation in the middle of suite 210
• Repair rotted wood under front window of suite 208
• Repaint Suite 208 to match Suite 210
• Re-carpet suites 208 and 210 and add new VCT as labeled on Exhibit A
• Add matching interior doors and door frames to suite 208
7. Except as modified herein, the Lease remains in full force and effect.Although RMB had the foundation "mudjacked" after the parties executed the Amendment, the problems became worse. Numerous emails from Protegga to RMB reflect Protegga's growing dissatisfaction with the foundation and any attempts by RMB to repair it. Eventually Protegga's CEO, Lance Fogarty, hired a structural engineer to examine the foundation. Fogarty sent the engineer's report and recommendations to RMB.
The affidavit of Protegga's CEO defines mudjacking as "a form of foundation repair by raising of a pavement or railroad subgrade by means of mud pumped under it through drilled holes."
With the foundation problems unresolved, Protegga sued RMB for breach of contract and breach of implied warranty of suitability. RMB filed a motion for traditional and no-evidence summary judgment, which the trial court granted. This appeal followed.
LAW & ANALYSIS
We review the grant of summary judgment de novo. First United Pentecostal Church v. Parker, No. 15-0708, 2017 WL 1032754, at *3 (Tex. Mar. 17, 2017). If, as here, the trial court's order does not state the grounds on which it granted summary judgment, we will affirm if any of the theories advanced by the summary judgment movant are meritorious. Pain Control Inst., Inc. v. GEICO Gen. Ins. Co., 447 S.W.3d 893, 897 (Tex. App.—Dallas 2014, no pet.). When a party moves for summary judgment on both traditional and no-evidence grounds, we typically first review the summary judgment under the no-evidence standard. See Parker, 2017 WL 1032754, at *3. If we determine summary judgment was appropriate under the no-evidence standard, we need not address issues related to the traditional summary judgment motion. See id.
When we review a no-evidence summary judgment, we inquire whether the nonmovant produced evidence raising a genuine issue of material fact as to the challenged elements. Id. We review the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
A. Breach of Contract
In its first issue, Protegga argues the trial court erred by granting summary judgment on its breach of contract claim. Protegga asserts RMB breached the Amendment by failing to properly complete the listed repair work.
The elements of a breach of contract claim are (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. Nat'l Health Res. Corp. v. TBF Fin., LLC, 429 S.W.3d 125, 131 (Tex. App.—Dallas 2014, no pet.). A breach of contract occurs when a party fails or refuses to do something he has promised to do. Capstone Healthcare Equip. Servs., Inc. v. Quality Home Health Care, Inc., 295 S.W.3d 696, 699 (Tex. App.—Dallas 2009, pet. denied). In its no-evidence motion for summary judgment, RMB asserted there is no evidence it breached the contract by failing to complete the enumerated work using standard building materials and Protegga was damaged by the alleged breach. In response, Protegga asserted two breaches by RMB: (1) failure to mudjack the foundation properly and (2) failure to repair the rotted wood under the front window of Suite 208.
The evidence shows that RMB mudjacked the foundation, but the mudjacking did not resolve the foundation problems. Protegga submitted an affidavit from Fogarty stating the mudjacking was not done properly and made the problems worse. Protegga's summary judgment evidence also includes a report from W. Tom Witherspoon, Ph.D. P.E., a consulting engineer, who examined the foundation. Witherspoon states some of the problems:
. . . would suggest either the prior mudjacking pumped the floor too high or there has been heaving in this area. Since there is no obvious plumbing in the area of high elevations, it would seem plausible that the mudjacking over lifted the slab. The tenant indicated there was no communication device between the interior pump location person and the mudjack, which makes any crude communication become a delayed action and not one with precision. Therefore, over lifting/jacking is a very real probability. With that being said, the floor is still within tolerance despite the high section at the center of the south wing.The Amendment states the mudjacking would be done using "standard building materials," and Protegga provided no evidence that was not done. While the evidence shows the mudjacking failed to remedy the problems and may not have been done properly, it is uncontested the mudjacking was performed and there is no evidence it was not done using "standard building materials."
Protegga also asserts RMB breached the Amendment by failing to repair the rotting wood using standard building materials. Fogarty's affidavit states: "In the last week of October 2015, Renando Peralta cut a small piece of wood to jam in front of the rotted wood and called the job complete. The rotted wood still exists to this day." This is more than a scintilla of probative evidence raising a genuine issue of material fact that RMB failed to repair the rotting wood as agreed in the Amendment. However, there is no evidence that this failure caused any damage or injury to Protegga. Protegga's discussion of how it has incurred monetary damages relates solely to the on-going foundation problems and the impact of the foundation problems on its business. We conclude Protegga failed to provide evidence it was injured by the rotting wood.
RMB also argues terms of the Lease preclude the award of monetary damages. Section 3.06 of the Lease states:
3.06 Exemptions from Liability. Lessor shall not be liable for any damage or injury to the person, business (or any loss of income therefrom), . . . or other property of Lessee . . . whether such damage or injury is caused by results from: . . . (b) the breakage, leakage, obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures or any other cause; [or] (c) conditions arising on or about the leased premises or upon other portions of any building of which the leased premises is a part, or from other sources or places; . . . Lessor shall not be liable for any such damage or injury even though the cause of or the means of repairing such damage or injury are not accessible to Lessee. Notwithstanding Lessor's negligence or breach of this Lease, Lessor shall under no circumstances be liable for injury to Lessee's business or for any loss of income or profit therefrom.Because Protegga has not shown it was damaged, we do not need to consider this argument to resolve the appeal.
We conclude the trial court did not err by granting RMB's no-evidence motion for summary judgment on Protegga's breach of contract claim. We overrule Protegga's first issue.
B. Breach of Implied Warranty
In its second issue, Protegga argues the trial court erred by granting summary judgment on its claim for breach of implied warranty of suitability. "Commercial real estate landlords impliedly warrant that their premises are suitable for the tenants' intended commercial purposes." Gym-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d 905, 906 (Tex. 2007). To establish a breach of implied warranty of suitability, "a lessee must show that a latent defect in the facilities existed at the inception of the lease, that the facilities were vital to the use of the premises for the intended purposes, and that the lessor failed to repair the defect." Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 340 (Tex. 2011). RMB's no-evidence motion for summary judgment asserted there is no evidence that the leased premises had a latent physical or structural defect at the inception of the Lease, a defect was in an area that was vital to the property for its intended commercial purpose which made the property unsuitable for its intended commercial purpose, or Protegga was injured.
Protegga argues: "the evidence submitted by Protegga shows that the foundation problems were latent at the beginning of the lease and are in the 'middle of suite 210,' which is an area vital to the functionality and security of Protegga's office space." To support its argument, Protegga cites a single paragraph in Fogarty's affidavit, which states Protegga began noticing and complaining about the foundation issues in 2012 and the foundation issues were not visible or discovered by Protegga at the inception of the Lease.
Fogarty's affidavit does not show that the leased premises had a latent physical or structural defect at the inception of the Lease. Rather, Fogarty averred that Protegga became aware of foundation problems in 2012, more than two years after entering into the Lease. Nothing in the record shows a latent foundation defect existing at the inception of the Lease. Because Protegga produced no evidence to support at least one element of its cause of action for breach of warranty of suitability, we conclude the trial court did not err by granting RMB's no-evidence motion for summary judgment on this cause of action. We overrule Protegga's second issue.
CONCLUSION
We affirm the trial court's judgment.
/Craig Stoddart/
CRAIG STODDART
JUSTICE 160957F.P05
JUDGMENT
On Appeal from the County Court at Law No. 7, Collin County, Texas
Trial Court Cause No. 007-02668-2015.
Opinion delivered by Justice Stoddart. Justices Lang and Myers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee RMB BRANDYWINE PLACE, LTD recover its costs of this appeal from appellant PROTEGGA, LLC. Judgment entered this 10th day of May, 2017.