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Civil Litigation No. 11-02-00213-CV, 6/18/2003. Click here for the full text of this decision FACTS: Gale-Sobel, a division of Angelica Corp., contracted to provide uniforms and related services to the Dallas Area Rapid Transit Authority from 1994 to 1997. Gale-Sobel entered into a subcontractor agreement with Davis Apparel whereby Davis Apparel agreed to provide various warehousing, distribution, and other services in support of Gale-Sobel’s contract with DART. The parties executed various documents in contemplation of Gale-Sobel’s bidding efforts for the contract with DART. However, the parties did not execute a written contract which fully reflected the terms of their agreement. Soon after Gale-Sobel and Davis Apparel began fulfilling the contract with DART in January 1994, a dispute arose as to the amount of commissions Davis Apparel was entitled to receive for its services. Davis Apparel asserted that it was entitled to receive a commission of 20 percent based on a document executed during the DART bidding process. However, Gale-Sobel only paid Davis Apparel a commission of 15 percent. The parties continued to jointly fulfill the DART contract until May 1997 without resolving the dispute over the amount of commissions owed to Davis Apparel. Davis Apparel filed suit against Gale-Sobel on Dec. 1, 2000, seeking to recover over $58,000 for the additional 5 percent commission. In addition to denying the existence of an agreement to pay Davis Apparel a commission of 20 percent, Gale-Sobel asserted a limitations defense to Davis Apparel’s claim. The jury agreed with Davis Apparel’s contention that Gale-Sobel agreed to pay a 20 percent commission and awarded Davis Apparel damages of $28,467. With respect to Gale-Sobel’s limitations defense, the jury was asked the following question: “What is the earliest date Gale-Sobel failed to comply?” The jury responded to this inquiry with the date of March 4, 1994. The trial court entered a take-nothing judgment against Davis Apparel based on the jury’s answer to this limitations question. HOLDING : Reversed and remanded. A cause of action for breach of contract is generally regarded as accruing when the contract is breached or when the claimant has notice of facts sufficient to place him on notice of the breach. Slusser v. Union Bankers Insurance Co., 72 S.W.3d 713 (Tex.App. – Eastland 2002, no pet’n). If the parties’ agreement contemplates a continuing contract for performance, the limitations period does not usually commence until the contract is fully performed. However, where the terms of an agreement call for fixed, periodic payments, a separate cause of action arises for each missed payment. The limitations question submitted to the jury in this case essentially asked the jury to decide whether or not the parties’ agreement constituted a continuing contract. Davis Apparel argued that the agreement was a continuing contract that was not breached until the agreement’s expiration in May 1997. Gale-Sobel disagreed with this assertion by arguing that, if the parties’ agreement had been breached, the breach had occurred since the outset of the agreement. The court’s review of the record indicates legally and factually sufficient evidence supporting the jury’s answer of March 4, 1994, with respect to the earliest date that Gale-Sobel failed to comply with the parties’ agreement. Davis Apparel began work in support of Gale-Sobel’s contract with DART in January 1994. Gale-Sobel made payments of commissions to Davis Apparel on a monthly basis at the inception of the contract. Connie Davis, the principal of Davis Apparel, testified that she felt she was entitled to receive a commission of 20 percent at the outset of the contract. She made several oral and written demands to Gale-Sobel prior to May 1997 demanding the full payment of commissions. With respect to the jury’s selection of a date in March 1994, there was evidence that Gale-Sobel forwarded a written contract to Davis Apparel in early 1994 which provided for a commission of 15 percent. Connie Davis marked through the provision for a 15 percent commission and entered a commission of 20 percent in its place. Connie Davis also entered the date of “March 1, 1994″ as the effective date on the document and returned it to Gale-Sobel. Davis Apparel’s brief contains an alternative argument pertaining to the trial court’s ruling on the limitations issue which is not expressly stated in its appellate issues. Davis Apparel asserts that the jury’s answer to the limitations question does not support a judgment denying its claims for damages for the entire term of the contract. Specifically, Davis Apparel argues that, irrespective of the jury’s determination of when the earliest breach of the contract occurred, limitations should not bar claims for damages arising after Dec. 1, 1996. The evidence in the record demonstrates that the parties treated their agreement as an installment contract whereby Gale-Sobel made monthly payments of commissions to Davis Apparel. As held in Slusser, a separate cause of action arises for each missed payment under an installment contract. Accordingly, Davis Apparel’s claims for damages arising after Dec. 1, 1996, were not barred by limitations. The trial court’s judgment is affirmed with respect to Davis Apparel’s claims arising from deficient commission payments made by Gale-Sobel prior to Dec. 1, 1996. The trial court’s judgment regarding deficient commission payments made by Gale-Sobel after Dec. 1, 1996, is reversed and remanded for trial. Since Gale-Sobel contested liability in the trial court, the issues of liability and damages for payments made after Dec. 1, 1996, are remanded for a new trial pursuant. OPINION: Arnot, C.J.; Arnot, C.J., Wright and McCall, JJ.

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