Full Opinion

NUMBER 13-26-00002-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG VEENA DENTAL PA, Appellant, v. BRIXMOR GA APOLLO II TX LP, Appellee. ON APPEAL FROM THE 343RD DISTRICT COURT OF SAN PATRICIO COUNTY, TEXAS MEMORANDUM OPINION Before Chief Justice Tijerina and Justices Cron and Fonseca Memorandum Opinion by Justice Fonseca Appellant Veena Dental PA (Veena) appeals the trial court’s grant of appellee Brixmor GA Apollo II TX LP’s (Brixmor) traditional motion for summary judgment. Veena argues it presented competent summary judgment evidence raising a genuine issue of material fact regarding its claims. We affirm because the record conclusively shows Veena’s claims are barred by limitations. I. BACKGROUND On March 23, 2013, Veena leased a property located at 1548 Wildcat Drive in Portland (Premises) from Brixmor, a real estate entity, intending to rebuild and use the Premises as a dental office. According to the lease, the Premises had “approximate dimensions of 32 feet of frontage and 59 feet of depth, for an approximate total square foot area of 1,863.” During email communications in 2013, the parties negotiated the price per square foot of the Premises. The parties extended the lease in September 2018 via amendment. The lease states in Section 16.01: “IN THE EVENT [Brixmor] TRANSFERS THIS LEASE, [Brixmor] WILL BE RELEASED FROM ALL LIABILITY AND OBLIGATIONS HEREUNDER, PROVIDED THAT THE TRANSFEREE ASSUMES THE OBLIGATIONS OF THIS LEASE.” Section 16.05 states all “liabilities and obligations” are assigned to the new owner in the event Brixmor sold the Premises. The lease also contained a waiver of Texas Deceptive Trade Practice Act (DTPA) claims and limits recovery for any default or breach by Brixmor “TO THE ESTATE AND PROPERTY OF [Brixmor] IN THE LAND AND BUILDING.” The lease further contained a clause that the property was delivered in “AS- IS/WHERE-IS” condition. In November 2018, Brixmor sold the Northshore Plaza shopping center, of which the Premises was part, to Northshore Plaza LP (Northshore). Brixmor assigned Veena’s lease to Northshore and Northshore assumed Brixmor’s obligations pursuant to the lease. In 2023, Veena discovered the area of the Premises was in fact about 1,500 square feet after taking measurements of the space. Veena also asserted the correct dimensions were reflected in “the construction plans for the buildout of the” Premises, which were 2 drawn on March 13, 2013, and showed a “Finish-Out SQ. FT” of 1,432. Upon discovery of this discrepancy, Veena demanded reimbursement for alleged rent “overpayments” and future rent reduction, but Brixmor refused to comply. Veena filed suit on May 22, 2024, asserting claims for breach of contract, fraud, and DTPA violations, and seeking “damages that are within the jurisdictional limits of the court,” attorney’s fees, and costs. Veena contended Brixmor deliberately mispresented the actual size of the Premises, charging more rent in accordance with this misrepresented size. Brixmor filed its answer making a general denial and asserting it was not liable because it sold the Premises to a successor landlord in 2018. Brixmor also asserted defenses of estoppel, waiver, release, statutes of limitations, “as-is” clauses in the lease, and laches, among other defenses. The parties conducted discovery in August 2025, and Veena admitted in interrogatories that Northshore took over as landlord in 2018. Veena also admitted its construction plans reflected the true size of the Premises. On August 15, 2025, Brixmor filed its traditional motion for summary judgment arguing limitations had run on Veena’s claims and that it was the wrong party to sue as it sold the property back in 2018. Brixmor asserted that Northstar assumed all obligations under the lease in 2018 and Brixmor had no contact with Veena afterwards. Brixmor further argued Veena’s claims accrued in 2013 when the parties entered into the lease or when Veena took possession of the Premises. Thus, Brixmor asserted limitations ran on all of Veena’s claims in 2015 or 2017. Brixmor further claimed Veena did not plead the discovery rule, but even if it had, discovery indicated Veena had possession of construction plans reflecting the true dimensions since it occupied the Premises and likely reviewed those plans before commencing construction. Brixmor also argued Veena 3 already collected for overpaid rent from Northstar. Veena responded to the motion arguing genuine issues of material fact existed as to each of its claims. Specifically, Veena asserted the discovery rule tolled limitations because it could not have discovered the true size of the space because it had no reason to measure the space and did not have “comparable knowledge of what a 1,500 square foot space looked like.” It claimed to discover the discrepancy only by accident. Veena further argued there were genuine issues of material fact as to the breach of contract, fraud, and DTPA claims because Brixmor made material misrepresentations and claimed the construction plans did not reflect the square footage. Veena attached a copy of the construction plans to its response. Veena did not file an amended petition asserting the discovery rule. The trial court set the traditional motion for summary judgment for submission by briefs on September 22, 2025. On September 30, 2025, the trial court signed an order granting Brixmor’s motion and entered a final judgment. Veena filed a motion for reconsideration and motion for new trial. Brixmor responded to this motion, arguing Veena failed to assert any fact the trial court erred on and asserting the discovery rule could not be considered because Veena failed to amend its petition to affirmatively plead that defensive theory. Brixmor also argued the plans attached to Veena’s response contained the Premises’ dimensions and were dated 2013, meaning the size was reasonably discoverable prior entering the lease. The trial court denied Veena’s motion for reconsideration on November 18, 2025. This appeal followed. 4 II. ANALYSIS Veena’s sole issue challenges the trial court’s grant of summary judgment. A. Standard of Review “We review a summary judgment ruling de novo.” H-E-B, LP v. Peterson, 732 S.W.3d 541, 545 (Tex. 2026). “We view evidence ‘in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.’” Id. (quoting City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005)). A movant for traditional summary judgment has the burden to establish that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(a)(1). If the movant meets its burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). If the nonmovant provides more than a scintilla of evidence to raise a fact issue, then summary judgment is improper. San Patricio Cnty. Appraisal Dist. v. Gunvor USA LLC, 731 S.W.3d 908, 917 (Tex. App.—Corpus Christi– Edinburg 2026, pet. granted); Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 398 (Tex. App.—Houston [1st Dist.] 2017, no pet.). A scintilla is enough evidence to rise to a level where reasonable and fair-minded people could differ in their conclusions whereas less than a scintilla creates no more than a mere surmise or suspicion. See Gunvor USA LLC, 731 S.W.3d at 917; Cardenas, 527 S.W.3d at 398. B. Statute of Limitations One of the grounds the trial court granted summary judgment on was Brixmor’s affirmative defense of statute of limitations. “A summary judgment granted on the basis of an affirmative defense will be affirmed only if the record establishes that the movant 5 conclusively proved all elements of its affirmative defense as a matter of law.” Deacero, S.A.P.I. de C.V. v. BNSF Ry. Co., 696 S.W.3d 212, 217 (Tex. App.—Houston [14th Dist.] 2024, pet. granted) (citing City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979)). “To obtain summary judgment on limitations grounds, the movant must conclusively establish the accrual date of the cause of action.” Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 708 (Tex. 2021). A limitations period begins to accrue when a wrongful act causes legal injury even if all damages have yet to occur. Id. at 707– 08 (quoting S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996)). Veena brought causes of action for breach of contract 1 and fraud, which are both subject to a four-year statute of limitations, and DTPA claims, which are subject to a two- year statute of limitations. See TEX. CIV. PRAC. & REM. CODE §§ 16.051, 16.004; TEX. BUS. & COM. CODE § 17.565. A breach of contract claim accrues when the contract is breached. Trinity Indus. Leasing Co. v. Lattimore Materials Corp., 736 S.W.3d 19, 26 (Tex. App.— Dallas 2024, pet. granted). 2 For fraud, however, a claim does not accrue “until the plaintiff discovers, or in the exercise of reasonable care and diligence should have discovered, the fraud.” Harris v. Am. Prot. Ins., 158 S.W.3d 614, 628 (Tex. App.—Fort Worth 2005, no pet.). Likewise, the limitations period for a DTPA claim begins when a plaintiff 1 While Veena brought a claim for breach of contract, we note its claim is more properly characterized as fraudulent inducement. “[F]raudulent inducement ‘is a particular species of fraud that arises only in the context of a contract and requires the existence of a contract as part of its proof.’” Holloway v. Dekkers, 380 S.W.3d 315, 324 (Tex. App.—Dallas 2012, no pet.) (quoting Haase v. Glazner, 62 S.W.3d 795, 798–99 (Tex. 2001)). The heart of such claim is that one party induced the other into executing a contract through the use of fraudulent misrepresentations, as Veena alleges Brixmor did here. See id. Neither party has raised this issue, so we proceed with the analysis based on the parties’ characterization of the cause of action and the applicable law as it was presented. 2 While, as we noted, Veena’s claim is better categorized as fraudulent inducement, we note the statute of limitations is the same as for breach of contract: four years. See TEX. CIV. PRAC. & REM. CODE § 16.004(a)(4). A fraudulent inducement claim accrues on the date the allegedly false representations were made, which on this record, is the same date Veena signed the contract if not earlier. See Seureau v. ExxonMobil Corp., 274 S.W.3d 206, 227 (Tex. App.—Houston [14th Dist.] 2008, no pet.). 6 discovers “or in the exercise of reasonable diligence should have discovered” the offending act. TEX. BUS. & COM. CODE § 17.565. Here, the wrongful act causing legal injury was Brixmor’s alleged misrepresentation regarding the Premises’ footage inducing Veena to sign the lease. Veena signed the lease with Brixmor on March 23, 2013, thus beginning its obligations to pay rent and its legal injury of being allegedly overcharged. See Eagle Oil & Gas Co., 619 S.W.3d at 707–08. Therefore, Brixmor has conclusively established the accrual date of Veena’s breach of contract cause of action was March 23, 2013. See id.; Deacero, S.A.P.I. de C.V., 696 S.W.3d at 217; Stine v. Stewart, 80 S.W.3d 586, 592 (Tex. 2002). Any action for breach of contract was required to be brought before March 23, 2017, which Veena undisputedly failed to do. However, Veena argues the discovery rule in its brief. The discovery rule operates akin to the accrual of limitations for fraud and DTPA violations in that it prevents the statute of limitations from running “until the claimant knew or should have known of facts that in the exercise of reasonable diligence would have led to the discovery of the wrongful act.” Berry v. Berry, 646 S.W.3d 516, 524 (Tex. 2022) (quoting Little v. Smith, 943 S.W.2d 414, 420 (Tex. 1997)). Determination of whether a plaintiff should have known about facts giving rise to a claim is an objective inquiry of whether the injury is inherently undiscoverable. Id. (quoting S.V., 933 S.W.2d at 7). “An injury is inherently undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period despite due diligence.” Id. (quoting S.V., 933 S.W.2d at 7). However, the discovery rule must be pleaded and is waived if not pleaded. Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988) (“A defendant who has established that the suit is barred 7 cannot be expected to anticipate the plaintiff’s defenses to that bar.”); see Via Net v. TIG Ins., 211 S.W.3d 310, 313 (Tex. 2006) (noting “a defendant’s motion for summary judgment based on limitations need not negate the discovery rule unless the plaintiff has pleaded it”); TEX. R. CIV. P. 94. Veena never pleaded the discovery rule in its petition, nor did it ever amend its petition to plead the discovery rule in response to Brixmor’s filings. Therefore, Veena waived the discovery rule, and it does not apply to her breach of contract or fraud claims. See Woods, 769 S.W.2d at 518. Without application of the discovery rule, Veena’s breach of contract and fraud claims are barred by limitations as they were not brought before March 23, 2017. See TEX. CIV. PRAC. & REM. CODE § 16.004. However, fraud and DTPA claims do not accrue until either they are discovered or should have been discovered in the exercise of reasonable diligence, regardless of whether the discovery rule is pleaded. See Harris, 158 S.W.3d at 628; TEX. BUS. & COM. CODE § 17.565. Brixmor does not appear to dispute Veena’s assertions that it discovered the injury in 2023, instead disputing only whether Veena should have discovered the injury before 2023 in the exercise of due diligence. Brixmor points to the record evidence of Veena having the ability to measure the space as soon as it gained occupancy, as well as Veena’s construction plans created in 2013 which expressly describe the “Finish-Out SQ. FT” of the Premises as 1,432. We agree the record demonstrates Veena should have discovered the discrepancy in size with the exercise of reasonable diligence. See Harris, 158 S.W.3d at 628; TEX. BUS. & COM. CODE § 17.565. There was nothing in the size of the space “inherently undiscoverable” as a simple measure of the space upon occupancy would have 8 demonstrated the space’s dimensions. Veena leased the Premises in a state which required construction to bring it into an operable condition. It does not follow to believe no measurement of the space could have been conducted during the construction process and that Veena could not have determined the footage at any time it was having the space improved. Indeed, the construction plans, dated 2013, accurately stated the total square footage, meaning Veena not only could have discovered the true dimensions but actually had documentation stating the dimensions as early as 2013. In short, Veena’s fraud and DTPA claims accrued in 2013 as well, and should not have been asserted more than a decade later. See Harris, 158 S.W.3d at 628; TEX. BUS. & COM. CODE § 17.565. As the statute of limitations bars all of Veena’s causes of actions, we resolve this matter without examining the other sub-issues the parties raised. See TEX. R. APP. P. 47.1. We overrule Veena’s sole issue. III. CONCLUSION We affirm the trial court’s judgment. YSMAEL D. FONSECA Justice Delivered and filed on the 29th day of October, 2026. 9