ARTURA RICHARDSON, Appellant v. BIGELOW MANAGEMENT, INC. D/B/A BUDGET SUITES OF AMERICA, Appellee

AFFIRM and Opinion Filed April 18, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00213-CV
............................
ARTURA RICHARDSON, Appellant
V.
BIGELOW MANAGEMENT, INC. D/B/A BUDGET SUITES OF AMERICA, Appellee
.............................................................
On Appeal from the 162nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 04-00722
.............................................................
MEMORANDUM OPINION
Before Justices O'Neill, FitzGerald, and Lang-Miers
Opinion By Justice O'Neill
                                                                          
        Appellant Artura Richardson appeals the trial court's judgment granting Bigelow Management, Inc. d/b/a Budget Suites of America's traditional and no evidence motion for summary judgment and denying her partial motion for summary judgment. Richardson claims her negligence and deceptive trade practices causes of action are not barred by the statute of limitations because Budget Suites fraudulently concealed relevant facts. She further asserts there is evidence of Budget Suites's negligence, its DTPA violations, its breach of contract, and its breach of implied warranties of habitability and fitness for a particular purpose; therefore, the trial court improperly granted summary judgment. After considering Richardson's arguments, we affirm the trial court's judgment.
Background
        Richardson, her husband, and son stayed at a Budget Suites of America while their permanent home received treatment for mold. On January 18, 2002, the sprinkler system in their motel room went off causing extensive damage to their clothes. Some of the clothes were destroyed, while others were restored through dry cleaning. Richardson assessed damages at $21,546.57.
        On January 29, 2004, Richardson filed suit against Budget Suites alleging breach of contract, DTPA violations, and negligence. She later supplemented her petition and included claims for breach of implied warranties of habitability and fitness for a particular purpose. Budget Suites filed a traditional and no evidence motion for summary judgment asserting the statute of limitations barred Richardson's negligence and DTPA claims, and she provided no evidence supporting her remaining claims. Richardson then filed a response and motion for partial summary judgment on her DTPA, breach of contract, and warranty claims.
        The trial court granted partial summary judgment dismissing Richardson's negligence and DTPA causes of action. In a second order, the trial court ruled she did not have a cause of action for breach of warranty, but reserved ruling on the breach of contract claim. On November 7, 2005, the court granted Budget Suites's summary judgment on Richardson's contract claim and denied her partial summary judgment. This final order disposed of all parties and claims. This appeal followed.
Standard of Review
        The standards for reviewing a traditional and no evidence summary judgment are well- established. The party moving for traditional summary judgment has the burden of showing no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Santillan v. Wal-Mart Stores, Inc., 203 S.W.3d 502, 505 (Tex. App.-El Paso 2006, pet. denied). In deciding whether a disputed material fact issue exists, evidence favorable to the non-movant will be taken as true, and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in her favor. Santillan, 203 S.W.3d at 505. Further, a defendant moving for summary judgment on an affirmative defense must conclusively establish the defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 750 (Tex. 1999).
        A no evidence summary judgment is proper only when the non-movant fails to bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element of the non-movant's claim on which the non-movant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i); Gibbs v. ShuttleKing, Inc., 162 S.W.3d 603, 607-08 (Tex. App.-El Paso 2005, pet. denied).
        When both parties move for summary judgment, each party bears the burden of establishing it is entitled to judgment as a matter of law. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 356 (Tex. 2000). We review the summary judgment evidence presented by both parties and determine all questions presented. Id. The reviewing court should render the judgment the trial court should have rendered or remand if neither party has met its summary judgment burden. Id.
Negligence and DTPA Claims
        Richardson first alleges the trial court improperly granted summary judgment on her negligence and DTPA claims. Budget Suites contends her claims are barred by the statute of limitations.
        It is undisputed the sprinkler incident occurred on January 18, 2002 while Richardson was present in the motel room; however, she did not file her original petition until January 29, 2004. She contends her negligence and DTPA claims are not barred by the two year statute of limitations because the discovery rule and doctrine of fraudulent concealment apply. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon 2002); Tex. Bus. & Comm. Code Ann. § 17.565 (Vernon 2002). Specifically, she claims Budget Suites's failure to properly file an assumed name certificate with the state amounted to fraudulently concealing its identity, which resulted in her not knowing the proper party to sue until 2004. Richardson's reliance on the discovery rule and fraudulent concealment are misplaced.
        A defendant moving for summary judgment on the affirmative defense of limitations must conclusively establish the defense. KPMG Peat Marwick, 988 S.W.2d at 748. The defendant must (1) conclusively prove when the cause of action accrued, and (2) negate the discovery rule by proving as a matter of law there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of her injury. Id. If the movant establishes the statute of limitations bars the action, the nonmovant must then adduce summary judgment proof raising a fact issue. Id.
        The discovery rule, which is an exception to the general rule, applies only when an injury is inherently undiscoverable. Seibert v. Gen. Motors Corp., 853 S.W.2d 773, 776 (Tex. App.-Houston [14th Dist.] 1993, no writ). The Supreme Court of Texas has only applied the discovery rule in a limited number of cases. Id. The shared component of these cases is the injury was inherently undiscoverable. Id. In other words, at the time the injury arose, the plaintiff did not and could not know of the injury. Id. Texas law is also clear that it is the discovery of the injury, and not the identification of an alleged wrongdoer, that starts the clock running for limitations. Id.; see also Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344 n.3 (Tex. 1992).
        Here, Richardson does not contest the statute of limitations expired before she filed her lawsuit. It is undisputed Richardson was present in the motel room when the sprinkler system damaged her clothes on January 18, 2002. As such, she discovered the injury at that time, and no other damages were inherently undiscoverable. Her assertion that she did not know the responsible party until after limitations expired is irrelevant for application of the discovery rule. Russell, 841 S.W.2d at 344 n.3. Thus, Budget Suites conclusively established its affirmative defense, and Richardson failed to raise a fact issue in avoidance of the statute of limitations.
        We likewise conclude Richardson's reliance on fraudulent concealment is without merit. Fraudulent concealment is an equitable defense that estops the concealer from relying on the statute of limitations. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983). It tolls limitations until the injured party, using reasonable diligence, discovered or should have discovered the injury. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 750 (Tex. 1999). To prevail on the defense, a party is required to produce evidence establishing the defendant had: (1) actual knowledge of the wrong; (2) a duty to disclose the wrong; and (3) a fixed purpose to conceal the wrong. Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 436 (Tex. App.-Houston [1st Dist.] 2000, no pet.).
        Here, Budget Suites conclusively established any cause of action accrued on January 18, 2002 when the sprinkler system went off in Richardson's room. Richardson admits she was present when the incident occurred; therefore, she was immediately aware of and discovered possible damage to the clothes. Likewise, she presented no summary judgment evidence of which elements of her cause of action Budget Suites allegedly concealed preventing her from timely filing her suit. See Gibson v. Ellis, 58 S.W.3d 818, 824 (Tex. App.-Dallas 2001, no pet.) (holding party asserting fraudulent concealment must come forward with evidence raising a fact issue on each element of fraudulent concealment). Although fraudulent concealment may be shown where a party affirmatively conceals the responsible party's identity if there is a duty to disclose one's identity, Richardson presented no evidence Budget Suites had any such duty. Barnhill v. Integrated Health Servs., Inc., 21 S.W.3d 321, 324 (Tex. App.-San Antonio 1999, no pet.). Thus, her fraudulent concealment argument fails.
        The statute of limitations began running on January 18, 2002. Because Richardson filed her petition on January 29, 2004, her negligence and DTPA causes of action are barred by the statute of limitations. As such, the trial court properly granted Budget Suites's summary judgment on Richardson's negligence and DTPA claims.
Breach of Contract Claim
        Richardson next argues the trial court improperly granted Budget Suites's no evidence motion for summary judgment because she provided evidence the parties entered into a contract, and Budget Suites's breach proximately caused damages to her clothes. Budget Suites asserts that although she calls her claim a breach of contract, the facts alleged and injury suffered support only a tort theory, which results in her claim being time-barred. We agree.
        Although the principles of contract and tort causes of action are well-settled, the distinction between the two are not always clear. We must look to the substance of the cause of action and not the manner in which it is pleaded. Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 624 (Tex. App.-Eastland 2000, pet. denied); Ho v. Univ. of Tex. at Arlington, 984 S.W.2d 672, 686 (Tex. App.-Amarillo 1998, pet. denied) (noting court must look to the substance of the plaintiff's pleadings to characterize nature of cause of action, including the remedy sought). Tort obligations are generally obligations imposed by law apart from and independent of promises made; therefore, they are apart from the manifested intention of the parties. Hight, 22 S.W.3d at 624. If a party's conduct would give rise to liability independent of whether a contract existed between the parties, then the claim sounds in tort. Id.         In Texas, an innkeeper is not an insurer of the safety of his guests' property and is not strictly liable for damages. See Burrous v. Knotts, 482 S.W.2d 358, 360 (Tex. Civ. App.-Tyler 1972, no writ); Southwestern Hotel Co. v. Rogers, 183 S.W.2d 751, 757 (Tex. Civ. App.-El Paso 1944), aff'd, 184 S.W.2d 835 (Tex. 1945). Rather, his responsibility is limited to the exercise of ordinary care, and proof must be made of negligence and proximate cause. Burrous, 482 S.W.2d at 360. Thus, the duty is grounded in law and applies whether or not a guest is in direct privity of contract with the motel owner. Id.; see also Paredes v. City of Odessa, 128 F. Supp. 2d 1009, 1016 (W.D. Tex. 2000).
        Here, the duty Richardson alleges Budget Suites breached, specifically its failure to properly maintain the sprinkler system, is a duty imposed by law, not contract. As such, her claim arises in tort. As discussed above, such a claim must be brought within two years. Tex. Civ. Prac. & Rem. Code § 16.003. Because she failed to timely file her suit, her claim is barred by the statute of limitations, and the trial court properly granted summary judgment.
Breach of Implied Warranty of Habitability
        
        Richardson also contends Budget Suites breached an implied warranty of habitability by failing to properly maintain the sprinkler system. Budget Suites argues no action for breach of common law implied warranty of habitability exists for the recovery of property damages.
        Both parties incorrectly rely on authority that applies only to landlord-tenant relationships; however, it is undisputed Richardson's stay at the motel was temporary while her permanent home received treatment for mold. See e.g., Warehouse Partners v. Gardner, 910 S.W.2d 19, 23 (Tex. App.-Dallas 1995, writ denied) (noting a “permanent” residence is distinguishable from a temporary residence such as a hotel or motel); Patel v. Northfield Ins. Co., 940 F. Supp. 995, 1002 (N.D. Tex. 1996) (“Under Texas law . . . a guest in a hotel is a mere licensee, not a tenant.”). Thus, Budget Suites's reliance on Texas Property Code section 92.061, which applies only to landlord- tenant relationships, and case law interpreting this statute to mean tenants may not seek damages for personal property under a breach of implied warranty of habitability is unpersuasive to our analysis. See Tex. Prop. Code Ann. §§ 92.002 (noting chapter applies only to relationship between landlords and tenants of residential rental property), 92.061 (Vernon 2007)   See Footnote 1 ; Bolin Dev. Corp. v. Indart, 803 S.W.2d 817, 819 (Tex. App.-Houston [14th Dist.] 1991, writ denied) (holding Texas does not allow tenants to seek damages for personal property from a landlord under a breach of warranty of habitability theory). Richardson alleges if the property code does not apply, then a cause of action under the common law for breach of an implied warranty of habitability still exists.
        Richardson has failed to cite, and we have failed to find, a single case applying a common law implied warranty of habitability to a motel guest. Tex. R. App. P. 38.1(h). Likewise, where a negligence claim is available, generally an implied warranty does not exist. Rocky Mountain Helicopters, Inc. v. Lubbock County Hosp. Dist., 987 S.W.2d 50, 53 (Tex. 1998) (noting need for an implied warranty does not exist where other adequate remedies are available).
        Further, even if an implied warranty existed, which we question, Richardson's claim still fails. See Kamarath v. Bennett, 568 S.W.2d 658, 661 (Tex. 1978) (stating a breach of implied warranty of habitability defect must be of a nature that renders the premises unsafe, unsanitary, or otherwise unfit for living). Richardson does not contend her motel room was unsafe, unsanitary, or unfit for living because of the sprinkler system. Id. Rather, her sole complaint involves the damage to clothing, which has no bearing on whether the room was habitable. As such, Richardson failed to raise a genuine issue of material fact on essential elements of her claim. Therefore, the trial court properly granted Budget Suites's summary judgment and denied Richardson's partial summary judgment.
Breach of Implied Warranty of Fitness for a Particular Purpose
        Finally, Richardson argues Budget Suites breached the implied warranty of fitness for a particular purpose that is inherent in a hotel room by failing to properly maintain the sprinkler system. An implied warranty of fitness for a particular purpose is created under the Uniform Commercial Code, which Texas has adopted in the business and commerce code and applies only to goods. See Tex. Bus. & Comm. Code Ann. § 2.102, 2.315 (Vernon 1994). “Goods” are defined as “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale other than the money in which the price is to be paid. . . .” Id. § 2.105. The rental of a motel room is not a “good” as defined under the Texas Business and Commerce Code for purposes of an implied warranty of fitness for a particular purpose. Id.; see also Id. § 2.102 (stating Chapter 2 applies to transaction in goods). Therefore, there is no warranty as a matter of law, and the trial court properly granted Budget Suites's summary judgment and denied Richardson's partial summary judgment.
Conclusion
        After considering and overruling all of Richardson's arguments, we affirm the trial court's judgment.
                                                          
                                                          MICHAEL J. O'NEILL
                                                          JUSTICE
 
060213F.P05
 
Footnote 1 Section 92.061 of the property code states the following:
 
 
The duties of a landlord and the remedies of a tenant under this subchapter are in lieu of existing common law and other statutory law warranties and duties of landlords for maintenance, repair, security, habitability, and nonretaliation, and remedies of tenants for a violation of those warranties and duties. Otherwise, this subchapter does not affect any other right of a landlord or tenant under contract, statutory law, or common law that is consistent with the purposes of this subchapter or any right a landlord or tenant may have to bring an action for personal injury or property damage under the law of this state. This subchapter does not impose obligations on a landlord or tenant other than those expressly stated in this subchapter.
 
Tex. Prop. Code Ann. § 92.061.