Hollander v. Capon

O’CONNOR, Justice,

dissenting.

I disagree with the majority’s resolution of points of error one and two. The majority sustains Hollander’s points challenging the sufficiency of the evidence to support the jury finding that the agreement was breached on April 21, 1980. Then, instead of holding that Capon failed to carry his burden of proof that the statute of limitations had run, the majority supplies another date for limitations.

The jury found that Capon breached the 1974 agreement on April 21, 1980. That date appears in the record only in a letter from Capon to Hollander in which he states that he was behind on his support payments and he planned to catch up soon. In that letter Capon told Hollander:

Dick—

Enclosed are two (2) money orders totaling $750.00, the amount due on April 20, 1980 against the special release arrangement. The next payment is due October 1980.

Presently I owe you for approximately 8 weeks of support money. I expect to pay you up to the current day the first week in May 1980, thus keeping up to date.

After the April 21 letter, Capon continued to make sporadic payments.

Both the majority and I agree that the April 21, 1980, letter from Capon did not itself breach the agreement. The majority interprets the letter as an acknowledgment by Capon that he was already in breach of the agreement; I believe the letter is one more indication that Capon would continue to pay “as he was able.” Capon, by continuing to make payments, albeit sporadically and not for the full amount, treated *729 the contract as continuing as long as his children were still dependent on Hollander.

I do not believe that Capon breached the agreement until March 8, 1983. On that date, eight days after the youngest children turned 21, Capon sent Hollander his final check and the following letter:

Dick—

Enclosed is my check No. 1054 in the amount of Dollars Five Thousand Two Hundred and Fifty ($5,250.00) in payment of the commitment to support Jon’s and Josh’s schooling and living expenses, all in accordance with my letters to you dated May 20, 1982 and August 3, 1982 (see attached photo copies).

After this payment I have no obligation to send you funds for supporting any of my children, and more specifically because of your refusal to elaborate on details as asked of you on numerous occasions.

Please note that Susan was my dependent for the calendar year of 1982 and will become my deduction for the tax year of 1983.

The defense of statute of limitations was Capon’s and, as such, Capon was required to secure a jury finding on the statute of limitations. Intermedics, Inc. v. Grady, 683 S.W.2d 842, 845 (Tex.App.—Houston [1st Dist.] 1984, writ ref’d n.r.e.). The majority, after acknowledging that there is no evidence to support April 21, 1980, as the date the statute began to run, merely supplies one for Capon. The majority says that when April 21, 1980, fails as the date, that some date, four years before the suit was filed, must be the date the statute ran. The majority is willing to supply a date because it believes that Capon breached the contract continually, from the time he first failed to make a timely payment. I know of no authority that permits the appellate court to supply a date for the purposes of a statute of limitations.

In Intermedics, this Court held that if an agreement contemplates a continuing contract for performance, the limitations period does not usually begin until the contract is fully performed. Intermedics, 683 S.W.2d at 845 . Under Intermedics, the statute of limitations did not begin to run until Capon sent the March 8, 1983, letter.

The disagreement between the majority and the dissent can be traced to our different interpretations of the contract. The majority considers the contract as one for periodic payments. Relying on Gabriel v. Alhabbal, 618 S.W.2d 894, 897 (Tex.App.—Houston [1st Dist.] 1981, writ ref’d n.r.e.), the majority holds that failure to make any one payment was a breach that triggered the statute of limitations. I disagree that the contract was simply a contract that required periodic payments. The contract not only required Capon to make weekly payments, it also required him to pay the full cost of a college education for each child, provided he was financially able to do so. Only until the end of the contract would the parties know the cost of the children’s college education, and only then would the parties know if Capon was “financially able to do so.”

On this record, I believe that the statute began to run on March 8, 1983, when Capon told Hollander that he would not make any other payments he owed for his children’s support.

I would sustain Hollander’s points of error one and two.