Opinion issued December 20,=20
2007
In The
Court of=20
Appeals
For The
First =
District of=20
Texas
____________
NO. 01-06-00379-CV
____________
ELSA GARCIA, =
Appellant
V.
PACKAGED ICE, INC., A/K/A REDDY ICE and =
CURTIS=20
DEAN BELL, INDIVIDUALLY AND D/B/A CURTIS DEAN BELL DISTRIBUTING =
COMPANY,=20
Appellees
On Appeal from the 164th District Court=20
Harris County, Texas
Trial Court Cause No.=20
2003-03458
MEMORANDUM=20
OPINION
<=
/SPAN>Elsa=20
Garcia appeals the trial court=E2=80=99s granting summary judgment =
on her claims=20
against appellees, Packaged Ice, Inc., a/k/a Reddy Ice =
(=E2=80=9CPackaged Ice=E2=80=9D)=20
and Curtis Dean Bell, individually and d/b/a Curtis Dean Bell =
Distributing=20
Company (=E2=80=9CBell=E2=80=9D), for injuries that she allegedly =
sustained while working=20
at a Fiesta Mart when she slipped on a floor made wet by bags of =
ice that=20
had dripped during delivery. We consider whether Garcia raised a =
genuine=20
issue of material fact on her claims. We affirm.
BackgroundGarcia was employed =
as a=20
cashier for Fiesta Mart when, on May 5, 2001, she slipped in a =
puddle of=20
water and fell to the ground. The water had accumulated during the =
delivery of bags of ice manufactured by Packaged Ice.
<=
/SPAN>Garcia=20
filed suit against Fiesta Mart, Inc. and Packaged Ice on January =
23, 2003,=20
alleging negligence in allowing the water to accumulate. On =
February 2,=20
2004, Fiesta Mart moved for summary judgment, which the trial =
court=20
granted. Garcia does not appeal that order. On November 24, 2004, =
Packaged=20
Ice filed a traditional motion for summary judgment and a =
no-evidence=20
motion, arguing that it did not owe a duty to Garcia because it =
did not=20
own, operate, or occupy the premises on which Garcia was injured, =
nor did=20
it have the right to control Fiesta Mart employees. Packaged Ice =
also=20
established that it had no employees at Fiesta Mart on the day of =
the=20
incident. Packaged Ice argued that it was entitled to summary =
judgment=20
because it conclusively established the absence of any duty to =
Garcia.=20
<=
/SPAN>Attached=20
to Packaged Ice=E2=80=99s traditional motion for summary judgment =
was the=20
affidavit of Lee Hatch, corporate human resources and fleet =
manager, which=20
established that (1) Packaged Ice did not own, occupy, or control =
the=20
Fiesta Mart where Garcia fell; (2) Packaged Ice had no contract =
with=20
Fiesta Mart; (3) Packaged Ice did not have an employee at Fiesta =
Mart on=20
the day that Garcia fell; and (4) Packaged Ice never exerted =
control over=20
the distributor who delivered ice to Fiesta Mart on the day that =
Garcia=20
fell.
<=
/SPAN>In=20
its no-evidence motion, Packaged Ice asserted that Garcia could =
not=20
establish any elements of her allegations against Packaged Ice, =
including=20
that (1) Packaged Ice owned, occupied, or controlled the premises =
in=20
question; (2) Packaged Ice had actual or constructive knowledge of =
any=20
allegedly dangerous condition at Fiesta Mart on the day of =
Garcia=E2=80=99s fall;=20
(3) Packaged Ice failed to exercise reasonable care to reduce a =
risk=20
associated with any dangerous condition; and (4) any negligence of =
Packaged Ice was the proximate cause of any injuries sustained by=20
Garcia.
<=
/SPAN>In=20
response, Garcia asserted that Packaged Ice owed Garcia a duty of =
ordinary=20
care, which it breached by not properly monitoring the water =
leakage that=20
occurred during the delivery of its product. The court granted =
Packaged=20
Ice=E2=80=99s motion for summary judgment on June 2, 2005 without =
indicating the=20
grounds for its ruling.
<=
/SPAN>Garcia=20
amended her petition on October 26, 2005 and named Bell as a =
defendant. An=20
employee for Bell had delivered the ice to Fiesta Mart on the day =
that=20
Garcia fell. However, because the cause of action had accrued more =
than=20
four years prior to Garcia=E2=80=99s filing of the amended =
petition, Bell filed a=20
motion for summary judgment asserting that limitations barred =
Garcia=E2=80=99s=20
claims. Garcia responded that the statute of limitations was =
tolled=20
because she exercised due diligence to discover Bell=E2=80=99s =
existence and=20
failed to file suit against Bell timely through no fault of her =
own. The=20
trial court granted Bell=E2=80=99s motion for summary judgment on =
February 20,=20
2006.
Standard of =
Review
=
In=20
the appeal from a traditional summary judgment, we =
determine=20
whether the movant met its summary judgment burden by =
establishing that no genuine issue of material fact exists and =
that the=20
movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); =
KPMG Peat=20
Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, =
748 (Tex.=20
1999); City=20
of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, =
678 (Tex.=20
1979). We accept as true all evidence that supports the =
non-movant,=20
indulge every reasonable inference in favor of the non-movant, and =
resolve=20
any doubts in favor of the non-movant. Am. Tobacco Co. v. =
Grinnell,=20
951 S.W.2d 420, 425 (Tex. 1997). To be entitled to summary judgment on an =
affirmative=20
defense such as limitations, the movant must conclusively prove =
all of the=20
elements of the defense. Univ. of Houston =
v.=20
Clark, 38=20
S.W.3d 578, 580 (Tex. 2000).
=
In a rule 166a(i)=20
no-evidence summary judgment, the =
movant=20
represents that no evidence exists as to one or more essential =
elements of=20
the non-movant=E2=80=99s claims, upon which the non-movant would =
have the burden=20
of proof at trial. Tex. =
R. Civ. P.=20
166a(i). The non-movant must then present evidence raising =
a=20
genuine issue of material fact on the challenged elements. =
Id. We review a =
no-evidence summary judgment by =
viewing the=20
evidence in the light most favorable to the non-movant and =
disregarding=20
all contrary evidence and inferences. Patriacca v.=20
Frost, 98=20
S.W.3d 303, 306 (Tex. App.=E2=80=94Houston [1st Dist.] 2003, no =
pet.).=20
=
We review a trial =
court=E2=80=99s=20
grant of summary judgment de novo.=20
Valence=20
Operating Co. v. Dorsett, 164 S.W.3d 656, =
661 (Tex.=20
2005). The motion must state the specific grounds relied upon for =
summary=20
judgment. Tex. R. Civ. P.=20
166a(c).=20
In other words, we will not affirm a summary judgment on a ground =
not=20
included in the motion for summary judgment. Travis v. City of=20
Mesquite, 830 S.W.2d 94, 100 (Tex. 1992). When, as here, a =
trial court=20
does not state the reasons for its ruling, the judgment will be =
upheld=20
upon any theory alleged in the motion. Harwell v. State =
Farm Mut.=20
Auto. Ins. Co., 896 S.W.2d 170, =
173 (Tex.=20
1995).=20
=
We=20
must determine whether the non-movant produced more than a =
scintilla of=20
probative evidence to raise a genuine issue of material fact.=20
Jackson v.=20
Fiesta Mart, Inc., 979 S.W.2d 68, =
70=E2=80=9371 (Tex.=20
App.=E2=80=94Austin 1998, no pet.). More than a scintilla of =
evidence exists if=20
the evidence =E2=80=9Crises to a level =
that would=20
enable reasonable and fair-minded people to differ in their=20
conclusions.=E2=80=9D=20
King Ranch,=20
Inc. v. Chapman, 118 S.W.3d 742, =
751 (Tex.=20
2003) (quoting Merrell Dow =
Pharms., Inc. v.=20
Havner, 953=20
S.W.2d 706, 711 (Tex. 1997)). If the evidence does no more than =
create a=20
mere surmise or suspicion of fact, less than a scintilla of =
evidence=20
exists. Id.;=20
Macias v.=20
Fiesta Mart, Inc., 988 S.W.2d 316, =
317 (Tex.=20
App.=E2=80=94Houston [1st Dist.] 1999, no pet.).
=
Packaged Ice=E2=80=99s Summary=20
Judgment
=
Although=20
Garcia recognizes that it was an employee of Bell who delivered =
the ice=20
that she claims melted and caused a hazardous condition, which =
resulted in=20
her injury, she nevertheless contends on appeal that =
Bell=E2=80=99s employee was=20
an agent of Packaged Ice and that Packaged Ice is, therefore, =
vicariously=20
liable for her injuries. Garcia contends that Bell=E2=80=99s =
employee worked=20
=E2=80=9Cunder the authorization and direction of [Packaged] Ice, =
as to delivery,=20
time, place and manner.=E2=80=9D Therefore, Garcia asserts, =
Packaged Ice is=20
vicariously liable for Bell=E2=80=99s employee=E2=80=99s actions. =
Packaged Ice contends=20
that Garcia failed to assert her theory of vicarious liability in =
her=20
summary judgment response and, therefore, waived this argument on =
appeal.=20
See McMahan v. Greenwood, 108 S.W.3d 467, 483 (Tex. =
App.=E2=80=94Houston=20
[14th Dist.] 2003, pet. denied).
=
The non-movant =
must=20
expressly present to the trial court, by written answer or =
response, any=20
issues defeating the movant=E2=80=99s entitlement to summary =
judgment.=20
City=20
of Houston, 589 S.W.2d at =
678 (=E2=80=9CThe =
written answer or=20
response to the motion must fairly apprise the movant and the =
court of the=20
issues the non-movant contends should defeat the =
motion.=E2=80=9D). However,=20
traditional summary judgments must stand or fall on their own =
merits, and=20
the non-movant=E2=80=99s failure to answer or to respond cannot =
supply by default=20
the summary judgment proof necessary to establish the =
movant=E2=80=99s right.=20
Id. If a non-movant fails to present any issues in its =
response or=20
answer, the movant=E2=80=99s right is not established, and the =
movant must still=20
establish its entitlement to summary judgment. The effect of such =
a=20
failure is that the non-movant is limited on appeal to arguing the =
legal=20
sufficiency of the grounds presented by the movant. Id.=20
The=20
non-movant =E2=80=9Cmust . . . present to the =
trial court=20
those issues that would defeat=20
the movant=E2=80=99s right to a summary judgment and failing to do so, may not later =
assign them=20
as error on appeal.=E2=80=9D Id.; =
see Lewis v.=20
Adams, 979 S.W.2d 831, 835 (Tex. App.=E2=80=94Houston [14th =
Dist.] 1998, no=20
pet.); see also McConnell v. Southside Indep. Sch. Dist., =
858=20
S.W.2d 337, 341 (Tex. 1993). =
<=
/SPAN>Garcia=20
did not assert her theory of agency and vicarious liability before =
the=20
trial court. We hold=20
that Garcia failed to preserve this issue for appellate review.=20
Furthermore, Garcia fails to cite to any evidence in the =
record to=20
support her assertions that Bell=E2=80=99s employee=E2=80=99s =
actions were controlled by=20
Packaged Ice. ![3DFootnote](3D"")
<=
/SPAN>Bell=E2=80=99s Summary =
Judgment
<=
/SPAN>Bell=20
asserted in its summary judgment motion that suit was barred by =
the=20
statute of limitations, establishing that the cause of action =
accrued more=20
than four years prior to Garcia=E2=80=99s filing suit against =
Bell.
Garcia contends on appeal that =
her claims=20
should not be barred because the statute of limitations was =
tolled.
=
A=20
person must bring suit for personal injury not later than two =
years after=20
the day that the cause of action accrues. Tex. Civ. Prac. & Rem. Code =
Ann. =C2=A7=20
16.003(a)=20
(Vernon Supp. 2007). A defendant moving =
for=20
summary judgment on the affirmative defense of limitations has the =
burden=20
to conclusively establish that defense, including the accrual date =
of the=20
cause of action. Id.; see also =
Provident Life =
& Acc.=20
Ins. Co. v. Knott, 128 S.W.3d 211, =
220 (Tex.=20
2003). If the movant establishes that the statute of limitations bars =
the action,=20
the non-movant must then adduce summary judgment proof raising a =
fact=20
issue in avoidance of the statute of limitations. =
KPMG Peat Marwick =
v.=20
Harrison County Housing Finance Corp., 988 S.W.2d 746, =
748 (Tex.=20
1999).
=
Accrual of a cause =
of action=20
is deferred in two types of cases: (1) those involving fraud or =
fraudulent=20
concealment and (2) those in which the injury is =E2=80=9Cinherently=20
undiscoverable=E2=80=9D=20
and =
is=20
=E2=80=9Cobjectively=20
verified.=E2=80=9D=20
S.V. v.=20
R.V., 933=20
S.W.2d 1, 6 (Tex. 1996); Computer Assocs. =
Int=E2=80=99l, Inc.=20
v. Altai, Inc., 918 S.W.2d 453, =
456 (Tex.=20
1996). The Texas Supreme Court has said that the commission of =
fraud or=20
fraudulent concealment works to estop a defendant from asserting=20
limitations as a defense because =E2=80=9Ca person cannot be =
permitted=20
to avoid liability for his actions by deceitfully concealing =
wrongdoing=20
until limitations has run.=E2=80=9D =
S.V., 933 S.W.2d at 6;=20
Slusser v.=20
Union Bankers Ins. Co., 72 S.W.3d 713, =
719 (Tex.=20
App.=E2=80=94Eastland 2002, no pet.). Fraudulent concealment tolls =
the statute of=20
limitations until the injured party, using reasonable diligence,=20
discovered or should have discovered the injury. KPMG Peat=20
Marwick,=20
988 S.W.2d at 750.
A. Fraudulent =
Concealment
=
The=20
elements of fraudulent concealment are (1) the existence of the =
underlying=20
tort; (2) the defendant=E2=80=99s knowledge of the tort; (3) the =
defendant=E2=80=99s use=20
of deception to conceal the tort; and (4) the plaintiff=E2=80=99s =
reasonable=20
reliance on the deception. Glover v. Union =
Pac. R.R.=20
Co., 187=20
S.W.3d 201, 217 (Tex. App.=E2=80=94Texarkana 2006, pet. denied); =
Mitchell Energy =
Corp. v.=20
Bartlett,=20
958 S.W.2d 430, 439 (Tex. App.=E2=80=94Fort Worth 1997, pet.=20
denied).
=
A party asserting =
fraudulent=20
concealment as an affirmative defense to the statute of limitations has =
the burden=20
to raise it in response to the summary judgment motion =
and to come=20
forward with summary judgment evidence =
raising a=20
fact issue on each element of the fraudulent concealment defense.=20
KPMG Peat=20
Marwick,=20
988 S.W.2d at 748. Garcia did not raise the argument of fraudulent =
concealment in her summary judgment response and brought forth no =
evidence=20
of fraudulent=20
concealment
by Bell or =
Packaged=20
Ice.
Thus, her argument =
that the=20
statute of limitations was tolled by=20
fraudulent concealment is not preserved.
B. The Discovery Rule
=
The discovery rule defers =
accrual of a=20
cause of action until the plaintiff knew or, exercising reasonable =
diligence, should have known of the facts giving rise to the cause =
of=20
action. Computer Assocs. =
Int=E2=80=99l,=20
Inc., 918=20
S.W.2d at 455.=20
However, the discovery rule applies only =
in certain=20
limited circumstances. Id. at 456. =
Generally,=20
application has been permitted in cases in which the nature of the =
injury=20
incurred is inherently undiscoverable and =
the=20
evidence of the injury is objectively verifiable. See id. =
The requirement of =
inherent=20
undiscoverability recognizes that the discovery rule exception =
should be=20
permitted only when =E2=80=9Cit is difficult =
for the=20
injured party to learn of the negligent act or =
omission.=E2=80=9D =
Willis v.=20
Maverick,=20
760 S.W.2d 642, 645 (Tex. 1988).
<=
/SPAN>The discovery rule defers =
accrual of a=20
cause of action =E2=80=9Cuntil a plaintiff =
discovers=20
or, through the exercise of reasonable care and diligence, should =
discover=20
the =E2=80=98nature of his=20
injury.=E2=80=99=E2=80=9D Childs v.=20
Haussecker,=20
974 S.W.2d 31, 40 (Tex. 1998). Discovering the nature of the=20
injury=20
=E2=80=9Crequires=20
knowledge of the wrongful act and the resulting =
injury.=E2=80=9D =
Id. =E2=80=9CThus, when the discovery rule applies, =
accrual is=20
tolled until a claimant discovers or in the exercise of reasonable =
diligence should have discovered the injury and that it was likely =
caused=20
by the wrongful acts of another.=E2=80=9D =
Id. =E2=80=9C[O]nce these =
requirements=20
are satisfied, limitations commences, even if plaintiff =
does not=20
know the exact identity of the wrongdoer.=E2=80=9D =
Id. (emphasis=20
=
added).
&=
nbsp; Garcia=20
provided no evidence to support a delay in the accrual of the =
statute of=20
limitations under the discovery rule. Garcia=E2=80=99s reliance on =
lack of=20
knowledge of the wrongdoer does not suffice. Thus, the trial court =
properly granted summary judgment in favor of Bell on the basis =
that the=20
statute of limitations had run prior to Garcia=E2=80=99s asserting =
a claim against=20
Bell.
Conclusion
<=
/SPAN>We=20
affirm the judgment of the trial court.
=
&=
nbsp; &n=
bsp; &nb=
sp; &nbs=
p; =
; Tim=20
Taft
Justice
Panel consists of =
Justices=20
Taft, Hanks, and=20
Higley. |