Carlton Transport, Inc., through The Connecticut Indemnity Company, as subrogee v. Austin Fleet Maintenance, Inc. d/b/a Fleet Maintenance of Texas, Inc., and d/b/a Austin Thermo King and Jay Pittman--Appeal from 166th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-02-00449-CV
CARLTON TRANSPORT, INC.,
Appellant
v.
AUSTIN FLEET MAINTENANCE, INC. d/b/a Fleet Maintenance of Texas, Inc.

and d/b/a Austin Thermo King, and Jay Pittman,

Appellees
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2001-CI-13310
Honorable John D. Gabriel, Judge Presiding

Opinion by: Paul W. Green, Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Paul W. Green, Justice

Delivered and Filed: October 8, 2003

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART

Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court's judgment in part and reverse and remand in part in this memorandum opinion. Tex. R. App. P. 47.1.

Appellees Austin Fleet Maintenance, Inc. (Austin Fleet) and Jay Pittman made some repairs to a refrigerated trailer owned by appellant Carlton Transport, Inc. (Carlton). After the work was performed, the trailer broke down again and the load was lost. Carlton sued Austin Fleet and Pittman for contract and negligence damages. The trial court granted summary judgment against Carlton and in favor of Austin Fleet and Pittman. We affirm the judgment in part and reverse and remand in part for the following reasons:

1. Carlton challenges the trial court's judgment that Carlton's negligence claim is barred by the two year statute of limitations. The affidavit of Ed Robbins, president of Carlton, conclusively establishes that Carlton knew it had suffered an injury no later than September 10, 1999. The injury, the second break-down of Carlton's refrigerated trailer, was not inherently undiscoverable, and it was objectively verifiable. See Howard v. Fiesta Tex. Show Park, Inc., 980 S.W.2d 716, 720-21 (Tex. App.-San Antonio 1998, pet. denied). The discovery rule does not apply. See id. Carlton filed suit on September 14, 2001, more than two years from the date of the injury. Any negligence claim is barred by the two year statute of limitations. See Tex. Civ. Prac. & Rem. Code Ann. 16.003(a) (Vernon 2002).

2. Austin Fleet and Pittman did not waive their right to summary judgment based on limitations by failing to plead the statute of limitations in their original answer. Austin Fleet and Pittman filed an amended answer including the affirmative defense of limitations on the same day as the summary judgment hearing. The final order granting summary judgment was not signed until more than thirty days later. The order specifically overrules Carlton's objection to summary judgment on the basis of the unpled affirmative defense of limitations, implicitly granting leave for Austin Fleet and Pittman to file their amended answer. See Tex. R. App. P. 33.1. Carlton does not claim that surprise prevented it from responding to the limitations argument in the trial court. See Goswami v. Metropolitan Sav. & Loan Ass'n, 751 S.W.2d 487, 490 (Tex. 1988). In fact, Carlton amended its petition to assert the discovery rule and submitted the affidavit of its president in response to the motion for summary judgment. Therefore, the trial court did not err in overruling Carlton's objection and granting summary judgment on limitations as to any potential negligence claims. See id.

3. Carlton challenges the summary judgment dismissing his potential breach of contract claims. The motion for summary judgment states, "Plaintiff's claims of breach of contract[] are actually claims sounding in tort, and not contract." Because the motion for summary judgment does not challenge the lack of evidence for any specific element of a breach of contract claim, (1) it is an allegation that Carlton failed to plead a cause of action for breach of contract. Such a challenge must be brought by special exceptions rather than summary judgment. See Texas Dep't of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex. 1974); White v. Bayless, 32 S.W.3d 271, 274 (Tex. App.-San Antonio 2000, pet. denied). If Carlton has failed to state a claim in contract, it must be allowed to amend its petition to correct the defect. Only if the defect cannot be corrected may summary judgment be granted. See Herring, 513 at 9-10. In the alternative, even if we interpret the motion for summary judgment as a no-evidence motion, the evidence reveals a factual dispute over whether the parties reached agreement on the terms of a possible contract. Disputed facts preclude the granting of summary judgment. See Weiss v. Mechanical Associated Serv., Inc., 989 S.W.2d 120, 123-24 (Tex. App.-San Antonio 1999, pet. denied) (more than a scintilla of evidence defeats summary judgment); Central Tex. Micrographics v. Leal, 908 S.W.2d 292, 296-97 (Tex. App.-San Antonio 1995, no writ) (dispute over whether contract is too indefinite is a question of fact for the jury) .

We affirm the trial court's summary judgment that Carlton's negligence claim is barred by the statute of limitations. We reverse the summary judgment on Carlton's contract claims and remand for further proceedings. Costs of this appeal are taxed against the parties that incurred them.

Paul W. Green, Justice

1. A no-evidence summary judgment may be brought on grounds "that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial." Tex. R. Civ. P. 166a(i). "The motion must state the elements as to which there is no evidence." Id.