Elsa Garcia v. Packaged Ice, Inc., a/k/a Reddy Ice and Curtis Dean Bell, Individually and d/b/a Curtiss Dean Bell Distributing Company--Appeal from 164th District Court of Harris County

Opinion issued December 20, 2007

In The

Court of Appeals

For The

First District of Texas

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NO. 01-06-00379-CV

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ELSA GARCIA, Appellant

V.

PACKAGED ICE, INC., A/K/A REDDY ICE and CURTIS DEAN BELL, INDIVIDUALLY AND D/B/A CURTIS DEAN BELL DISTRIBUTING COMPANY, Appellees

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2003-03458

MEMORANDUM OPINION

Elsa Garcia appeals the trial court s granting summary judgment on her claims against appellees, Packaged Ice, Inc., a/k/a Reddy Ice ( Packaged Ice ) and Curtis Dean Bell, individually and d/b/a Curtis Dean Bell Distributing Company ( Bell ), for injuries that she allegedly sustained while working at a Fiesta Mart when she slipped on a floor made wet by bags of ice that had dripped during delivery. We consider whether Garcia raised a genuine issue of material fact on her claims. We affirm.

BackgroundGarcia was employed as a cashier for Fiesta Mart when, on May 5, 2001, she slipped in a puddle of water and fell to the ground. The water had accumulated during the delivery of bags of ice manufactured by Packaged Ice.

Garcia filed suit against Fiesta Mart, Inc. and Packaged Ice on January 23, 2003, alleging negligence in allowing the water to accumulate. On February 2, 2004, Fiesta Mart moved for summary judgment, which the trial court granted. Garcia does not appeal that order. On November 24, 2004, Packaged Ice filed a traditional motion for summary judgment and a no-evidence motion, arguing that it did not owe a duty to Garcia because it did not own, operate, or occupy the premises on which Garcia was injured, nor did it have the right to control Fiesta Mart employees. Packaged Ice also established that it had no employees at Fiesta Mart on the day of the incident. Packaged Ice argued that it was entitled to summary judgment because it conclusively established the absence of any duty to Garcia.

Attached to Packaged Ice s traditional motion for summary judgment was the affidavit of Lee Hatch, corporate human resources and fleet manager, which established that (1) Packaged Ice did not own, occupy, or control the Fiesta Mart where Garcia fell; (2) Packaged Ice had no contract with Fiesta Mart; (3) Packaged Ice did not have an employee at Fiesta Mart on the day that Garcia fell; and (4) Packaged Ice never exerted control over the distributor who delivered ice to Fiesta Mart on the day that Garcia fell.

In its no-evidence motion, Packaged Ice asserted that Garcia could not establish any elements of her allegations against Packaged Ice, including that (1) Packaged Ice owned, occupied, or controlled the premises in question; (2) Packaged Ice had actual or constructive knowledge of any allegedly dangerous condition at Fiesta Mart on the day of Garcia s fall; (3) Packaged Ice failed to exercise reasonable care to reduce a risk associated with any dangerous condition; and (4) any negligence of Packaged Ice was the proximate cause of any injuries sustained by Garcia.

In response, Garcia asserted that Packaged Ice owed Garcia a duty of ordinary care, which it breached by not properly monitoring the water leakage that occurred during the delivery of its product. The court granted Packaged Ice s motion for summary judgment on June 2, 2005 without indicating the grounds for its ruling.

Garcia amended her petition on October 26, 2005 and named Bell as a defendant. An employee for Bell had delivered the ice to Fiesta Mart on the day that Garcia fell. However, because the cause of action had accrued more than four years prior to Garcia s filing of the amended petition, Bell filed a motion for summary judgment asserting that limitations barred Garcia s claims. Garcia responded that the statute of limitations was tolled because she exercised due diligence to discover Bell s existence and failed to file suit against Bell timely through no fault of her own. The trial court granted Bell s motion for summary judgment on February 20, 2006. //

Standard of Review

In the appeal from a traditional summary judgment, we determine whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp.,988 S.W.2d 746, 748 (Tex. 1999); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We accept as true all evidence that supports the non-movant, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in favor of the non-movant. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). To be entitled to summary judgment on an affirmative defense such as limitations, the movant must conclusively prove all of the elements of the defense. Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000).

In a rule 166a(i) no-evidence summary judgment, the movant represents that no evidence exists as to one or more essential elements of the non-movant s claims, upon which the non-movant would have the burden of proof at trial. Tex. R. Civ. P. 166a(i). The non-movant must then present evidence raising a genuine issue of material fact on the challenged elements. Id. We review a no-evidence summary judgment by viewing the evidence in the light most favorable to the non-movant and disregarding all contrary evidence and inferences. Patriacca v. Frost, 98 S.W.3d 303, 306 (Tex. App. Houston [1st Dist.] 2003, no pet.).

We review a trial court s grant of summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The motion must state the specific grounds relied upon for summary judgment. Tex. R. Civ. P. 166a(c). In other words, we will not affirm a summary judgment on a ground not included in the motion for summary judgment. Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992). When, as here, a trial court does not state the reasons for its ruling, the judgment will be upheld upon any theory alleged in the motion. Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).

We must determine whether the non-movant produced more than a scintilla of probative evidence to raise a genuine issue of material fact. Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 71 (Tex. App. Austin 1998, no pet.). More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). If the evidence does no more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists. Id.; Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex. App. Houston [1st Dist.] 1999, no pet.).

Packaged Ice s Summary Judgment

Although Garcia recognizes that it was an employee of Bell who delivered the ice that she claims melted and caused a hazardous condition, which resulted in her injury, she nevertheless contends on appeal that Bell s employee was an agent of Packaged Ice and that Packaged Ice is, therefore, vicariously liable for her injuries. Garcia contends that Bell s employee worked under the authorization and direction of [Packaged] Ice, as to delivery, time, place and manner. Therefore, Garcia asserts, Packaged Ice is vicariously liable for Bell s employee s actions. Packaged Ice contends that Garcia failed to assert her theory of vicarious liability in her summary judgment response and, therefore, waived this argument on appeal. See McMahan v. Greenwood, 108 S.W.3d 467, 483 (Tex. App. Houston [14th Dist.] 2003, pet. denied).

The non-movant must expressly present to the trial court, by written answer or response, any issues defeating the movant s entitlement to summary judgment. City of Houston, 589 S.W.2d at 678 ( The written answer or response to the motion must fairly apprise the movant and the court of the issues the non-movant contends should defeat the motion. ). However, traditional summary judgments must stand or fall on their own merits, and the non-movant s failure to answer or to respond cannot supply by default the summary judgment proof necessary to establish the movant s right. Id. If a non-movant fails to present any issues in its response or answer, the movant s right is not established, and the movant must still establish its entitlement to summary judgment. The effect of such a failure is that the non-movant is limited on appeal to arguing the legal sufficiency of the grounds presented by the movant. Id. The non-movant must . . . present to the trial court those issues that would defeat the movant s right to a summary judgment and failing to do so, may not later assign them as error on appeal. Id.; see Lewis v. Adams, 979 S.W.2d 831, 835 (Tex. App. Houston [14th Dist.] 1998, no pet.); see also McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

Garcia did not assert her theory of agency and vicarious liability before the trial court. We hold that Garcia failed to preserve this issue for appellate review. Furthermore, Garcia fails to cite to any evidence in the record to support her assertions that Bell s employee s actions were controlled by Packaged Ice. //

Bell s Summary Judgment

Bell asserted in its summary judgment motion that suit was barred by the statute of limitations, establishing that the cause of action accrued more than four years prior to Garcia s filing suit against Bell. // Garcia contends on appeal that her claims should not be barred because the statute of limitations was tolled.

A person must bring suit for personal injury not later than two years after the day that the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. 16.003(a) (Vernon Supp. 2007). A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense, including the accrual date of the cause of action. Id.; see also Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 220 (Tex. 2003). If the movant establishes that the statute of limitations bars the action, the non-movant must then adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex. 1999).

Accrual of a cause of action is deferred in two types of cases: (1) those involving fraud or fraudulent concealment and (2) those in which the injury is inherently undiscoverable and is objectively verified. S.V. v. R.V., 933 S.W.2d 1, 6 (Tex. 1996); Computer Assocs. Int l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996). The Texas Supreme Court has said that the commission of fraud or fraudulent concealment works to estop a defendant from asserting limitations as a defense because a person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run. S.V., 933 S.W.2d at 6; Slusser v. Union Bankers Ins. Co., 72 S.W.3d 713, 719 (Tex. App. Eastland 2002, no pet.). Fraudulent concealment tolls the statute of limitations until the injured party, using reasonable diligence, discovered or should have discovered the injury. KPMG Peat Marwick, 988 S.W.2d at 750.

A. Fraudulent Concealment

The elements of fraudulent concealment are (1) the existence of the underlying tort; (2) the defendant s knowledge of the tort; (3) the defendant s use of deception to conceal the tort; and (4) the plaintiff s reasonable reliance on the deception. Glover v. Union Pac. R.R. Co., 187 S.W.3d 201, 217 (Tex. App. Texarkana 2006, pet. denied); Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 439 (Tex. App. Fort Worth 1997, pet. denied).

A party asserting fraudulent concealment as an affirmative defense to the statute of limitations has the burden to raise it in response to the summary judgment motion and to come forward with summary judgment evidence raising a fact issue on each element of the fraudulent concealment defense. KPMG Peat Marwick, 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 of fraudulent concealment

by Bell or Packaged Ice. // Thus, her argument that the statute of limitations was tolled by fraudulent concealment is not preserved.

B. The Discovery Rule

The discovery rule defers accrual of a cause of action until the plaintiff knew or, exercising reasonable diligence, should have known of the facts giving rise to the cause of action. Computer Assocs. Int l, Inc., 918 S.W.2d at 455. However, the discovery rule applies only in certain limited circumstances. Id. at 456. Generally, application has been permitted in cases in which the nature of the injury incurred is inherently undiscoverable and the evidence of the injury is objectively verifiable. See id. The requirement of inherent undiscoverability recognizes that the discovery rule exception should be permitted only when it is difficult for the injured party to learn of the negligent act or omission. Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988).

The discovery rule defers accrual of a cause of action until a plaintiff discovers or, through the exercise of reasonable care and diligence, should discover the nature of his injury. Childs v. Haussecker, 974 S.W.2d 31, 40 (Tex. 1998). Discovering the nature of the injury requires knowledge of the wrongful act and the resulting injury. Id. Thus, when the discovery rule applies, accrual is tolled until a claimant discovers or in the exercise of reasonable diligence should have discovered the injury and that it was likely caused by the wrongful acts of another. Id. [O]nce these requirements are satisfied, limitations commences, even if plaintiff does not know the exact identity of the wrongdoer. Id. (emphasis added).
Garcia provided no evidence to support a delay in the accrual of the statute of limitations under the discovery rule. Garcia s reliance on lack of knowledge of the wrongdoer does not suffice. Thus, the trial court properly granted summary judgment in favor of Bell on the basis that the statute of limitations had run prior to Garcia s asserting a claim against Bell.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Hanks, and Higley.