Jose H. Segura v. Home Depot USA, Inc., Sometimes Or Alternatively Always D/B/A Home Depot At The Summit, Home Depot International, Inc. and Home Depot At The Summit--Appeal from 57th Judicial District Court of Bexar County

No. 04-99-00876-CV
Jose H. SEGURA,
Appellant
v.
HOME DEPOT USA, INC.,
Appellee
From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 97-CI-07957
Honorable Frank Montalvo, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Tom Rickhoff, Justice

Alma L. L pez, Justice (concurring in the judgment only)

Sarah B. Duncan, Justice

Delivered and Filed: April 18, 2001

AFFIRMED

Jose Segura appeals the trial court's summary judgment in favor of Home Depot USA, Inc. We affirm.

Factual and Procedural Background

On May 30, 1995, Jose Segura went to a Home Depot store to shop for building materials. He was standing in an aisle examining a commercial grade stapler when a wooden door fell off a pallet and struck him. Segura was taken to the hospital by ambulance.

On Saturday, May 31, 1997 or Sunday, June 1, 1997, Segura's attorney mailed a petition to the Bexar County District Clerk. The petition was file-stamped June 2, 1997. The petition sought damages for Home Depot's alleged negligence and gross negligence, and sought recovery for actual and statutory damages under the Texas Deceptive Trade Practices Act. See Tex. Bus. & Com. Code Ann. 17.41 et seq. (Vernon 1987 & Supp. 2000). On July 16, 1999, after Home Depot filed its first motion for summary judgment, Segura amended his petition, adding claims for negligent and intentional infliction of emotional distress, alleging breach of warranty, pleading the discovery rule, and alleging Home Depot acknowledged the justness of Segura's claims and promised to pay him.

Home Depot filed an amended motion for summary judgment, on the grounds that: (1) all of Segura's claims are barred by the statute of limitations; (2) Segura cannot recover under the DTPA because there is no evidence he is a consumer and no evidence he suffered economic damages; (3) there is no evidence to support the elements of the express and implied warranty claims; (4) there is no cause of action for negligent infliction of emotional distress; (5) there is no evidence to support the elements of a claim for intentional infliction of emotional distress; and (6) there is no evidence Home Depot acknowledged a debt owed to Segura or promised to pay him. After a hearing, the trial court overruled Segura's objections to some of Home Depot's summary judgment evidence and granted summary judgment on the limitations ground. Segura appeals.

Scope and Standard of Review

We review a summary judgment de novo. Valores Corporativos, S.A. de C.V. v. McLane Co., 945 S.W.2d 160, 162 (Tex. App.-San Antonio 1997, writ denied). "Accordingly, we will uphold a traditional summary judgment only if the summary judgment record establishes the absence of a genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion." Id.; see Tex. R. Civ. P. 166a(c). We will affirm a "no evidence" summary judgment under Rule 166a(i) only if the respondent fails to produce summary judgment evidence raising a genuine issue of material fact on each challenged element. See Tex. R. Civ. P. 166a(i). In deciding whether the summary judgment record raises a genuine issue of material fact, we "view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts, in its favor." Valores, 945 S.W.2d at 162. When, as here, the trial court grants summary judgment on a specific ground, we will review the ground the trial court ruled on and we may, in the interest of judicial economy, review other grounds presented to the trial court in the motion for summary judgment and preserved for review. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996).

Objection to Summary Judgment Evidence

Segura first contends the trial court abused its discretion in overruling his objection to Home Depot's reliance on previously-filed evidence. We disagree.

In its amended motion for summary judgment, Home Depot referred to, listed, and incorporated by reference the exhibits attached to its original motion. Segura argues the exhibits and the motion to which they were attached were superceded and "eliminated" by the filing of the amended motion, and thus they could not be relied upon in support of the amended motion. We disagree and hold the trial court did not err in overruling the objection. See Brandes v. Rice Trust, Inc., 966 S.W.2d 144, 148 (Tex. App.-Houston [14th Dist.] 1998, pet. denied); McCurry v. Aetna Cas. and Sur. Co., 742 S.W.2d 863, 867 (Tex. App.-Corpus Christi 1987, writ denied); Timothy Patton, Summary Judgments in Texas 3.04 (2d ed. 1996).

DTPA

Home Depot moved for summary judgment on the ground there was no evidence Segura was a consumer within the meaning of the DTPA. See Tex. R. Civ. P. 166a(i). Specifically, Home Depot alleged there was no evidence that any goods or services Segura sought to acquire by purchase or lease form the basis of his complaint.

To have standing to sue under the DTPA, the plaintiff must be a consumer. Flenniken v. Longview Bank and Trust Co., 661 S.W.2d 705, 706 (Tex. 1983). To secure consumer status, the plaintiff must show: (1) he sought or acquired goods or services by lease or purchase; and (2) the goods or services sought or acquired form the basis of his complaint and are not merely incidental. Sherman Simon Enters., Inc. v. Lorac Serv. Corp., 724 S.W.2d 13, 15 (Tex. 1987); Universal Sur. of America v. Central Elec. Enters. & Co., 956 S.W.2d 627, 628 (Tex. App.-San Antonio 1997, pet. denied). Whether the plaintiff is a consumer is generally a question of law for the court. Lukasik v. San Antonio Blue Haven Pools, Inc., 21 S.W.3d 394, 401 (Tex. App.-San Antonio 2000, no pet.).

It is undisputed that Segura sought to purchase goods or services from Home Depot and thus the first requirement is met. However, Home Depot argues Segura cannot meet the second requirement because the basis of his complaint is the condition of the store premises and the manner in which Home Depot stacked, stored, or displayed its doors. And Segura did not seek to acquire by purchase or lease the premises, the display, or the doors. In his response to the motion for summary judgment, and on appeal, Segura argues Home Depot provided, and he acquired, the use of the entire Home Depot premises for the purpose of engaging in a consumer transaction and was injured by a condition of the premises; thus, he concludes, he is a consumer within the meaning of the DTPA. (1) We disagree.

Segura did not seek to purchase or lease the premises. Rather, Home Depot's furnishing of the premises, and Segura's use of them, were merely incidental to the primary purpose of the attempted transaction--the purchase and sale of other goods and services. Under these circumstances, there is no evidence Segura is a consumer entitled to pursue a DTPA action. Consequently, Home Depot was entitled to summary judgment as a matter of law. See Ramirez v. H.E. Butt Grocery Co., 909 S.W.2d 62, 68-69 (Tex. App.-Waco 1995, writ denied); Henry v. Cullum Cos., Inc., 891 S.W.2d 789, 794-96 (Tex. App.-Amarillo 1995, writ denied); Rojas v. Wal-Mart Stores, Inc., 857 F. Supp. 533, 536-37 (N.D. Tex. 1994). We therefore affirm the summary judgment in favor of Home Depot on Segura's DTPA claims.

Breach of Express and Implied Warranties

Segura sought to recover under the DTPA for various alleged breaches of warranty. To the extent Segura's breach of warranty claims were brought under the DTPA, we affirm the summary judgment for the reasons stated above. In his fourth amended petition, Segura arguably pleaded claims for breach of warranty outside the DTPA:

Defendant also impliedly warranted that its services would be furnished and/or performed in a good and workmanlike manner, that its premises, advertising services and express or implied construction product advice and expertise were fit for the particular purposes and were suitable for the purposes for which same are ordinarily used, all of which warranties were in all things breached by Defendant. The breach of such express and implied warranties was the producing cause of damages to Plaintiff, both as a consumer within the meaning of the D.T.P.A. and otherwise.

Home Depot moved for summary judgment on these claims on various grounds, including: (1) there was no evidence that Home Depot made any affirmation of fact or promise concerning any of its goods, services, or its premises; (2) there is no evidence that Segura purchased or leased any goods, services, or premises, or engaged in any transaction that would give rise to an express or implied warranty. In his response to the motion for summary judgment, Segura presented no evidence or argument in support of his claim for breach of an implied warranty of good and workmanlike performance. Summary judgment was therefore proper on this claim. See Tex. R. Civ. P. 166a(i).

Segura's only response with respect to the claim Home Depot breached a warranty of fitness or suitability was to contend that one who maintains a premises that is open to the general public for pecuniary gain impliedly warrants that the premises are safe and suitable for use by the business invitee and consumer. Texas courts have not recognized such an implied warranty. Rather, the law imposes duties on premises owners and possessors to exercise reasonable care; breach of the duty may give rise to a negligence cause of action. See Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983) ("an invitee's suit against a store owner is a simple negligence action"). We therefore affirm the summary judgment on Segura's breach of warranty claims.

Negligent Infliction of Emotional Distress

Home Depot moved for summary judgment on Segura's negligent infliction of emotional distress claim on the ground that there is no cause of action in Texas for negligent infliction of emotional distress. We agree. See Boyles v. Kerr, 855 S.W.2d 593, 595-96 (Tex. 1993).

Negligence, Gross Negligence and Intentional Infliction of Emotional Distress

Home Depot moved for summary judgment on Segura's negligence, gross negligence, and intentional infliction of emotional distress claims on the ground they are barred by the two-year statute of limitations.

Home Depot had the burden to conclusively establish its limitations defense. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). Segura argues Home Depot failed to meet its burden because it failed to establish when the cause of action accrued, failed to negate the discovery rule, and failed to establish the petition was not timely filed within the two year limitation period.

Accrual/Discovery rule

As a general rule, in personal injury cases, a cause of action accrues when the wrongful act causes an injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex. 1998). Home Depot's summary judgment evidence unequivocally establishes Segura's accident occurred on May 30, 1995, he was injured on that date, and he was treated in the emergency room on that date. Therefore, the only issue is whether the discovery rule deferred accrual of Segura's causes of action to a later date. Id. at 36-7. Segura contends that, as a result of the accident, he suffered psychiatric injury, the nature of which was inherently undiscoverable, and thus the discovery rule deferred accrual until he learned of the extent of this injury. We disagree.

The discovery rule defers accrual only in "cases in which the alleged wrongful act and resulting injury were inherently undiscoverable at the time they occurred but may be objectively verified." S.V. v. R.V., 933 S.W.2d 1, 6 (Tex. 1996). For the discovery rule to apply, both the wrong and the injury, by their very nature, must have been unknown to the plaintiff. Id. at 6-7. Thus, the discovery rule does not apply when "the traumatic or injurious event causing personal injury is sudden and distinguishable, and the plaintiff knew that injury occurred at the time the event occurred, even if the plaintiff did not know the full extent of injury until much later." Howard v. Fiesta Texas Show Park, Inc., 980 S.W.2d 716, 721 (Tex. App.-San Antonio 1998, pet. denied). Segura knew of both the alleged wrong and most of his injuries on May 30, 1995. Therefore, the discovery rule did not defer accrual of his negligence and infliction of emotional distress claims, even if he did not learn of some of his injuries until later. Home Depot thus conclusively established Segura's negligence and intentional infliction of emotional distress claims accrued May 30, 1995.

When Did the Limitations Period Expire?

A suit for personal injuries must be filed "not later than two years after the day the cause of action accrues." Tex. Civ. Prac. & Rem. Code Ann. 16.003(a) (Vernon Supp. 2000). Here, the cause of action accrued May 30, 1995. However, the parties disagree on the proper method for determining when limitations expired. Home Depot contends limitations expired Friday, May 30, 1997. Segura, on the other hand, contends it did not expire until Saturday, May 31, 1997, and thus his petition filed Monday, June 2, was timely. See Tex. Civ. Prac. & Rem. Code 16.072 (Vernon 1997).

The Code Construction Act defines "year" to mean twelve consecutive months. Tex. Gov't Code Ann. 311.005(12) (Vernon 1998); see Tex. Civ. Prac. & Rem. Code Ann. 1.002 (Vernon Supp. 2000) (Code Construction Act applies to the Civil Practice and Remedies Code). When we compute a number of months from a particular day:

the period ends on the same numerical day in the concluding month as the day of the month from which the computation is begun, unless there are not that many days in the concluding month, in which case the period ends on the last day of that month.

Tex. Gov't Code Ann. 311.014(c) (Vernon 1998). Thus twenty-four consecutive months, or two years, from May 30, 1995 is May 30, 1997, and Segura's negligence and intentional infliction of emotional distress claims are barred.

Segura argues this result ignores the well-settled rule that in computing the time in which a suit must be filed, the day on which the cause of action accrued is not counted. See Smith v. Dickey, 74 Tex. 61, 11 S.W. 1049, 1050 (1889); Tex. R. Civ. P. 4. Segura contends that when the rule in section 311.04(c) is applied together with the rule that the day the cause of action accrues is not counted, "the computation is begun" on May 31, 1995, and thus the period ended May 31, 1997. We do not agree that these are two separate rules, which must each be applied. Rather, the method of computing a period set forth in section 311.014(c) incorporates the rule that the first day of a period is not counted, but the last one is. See Pitcock v. Johns, 326 S.W.2d 563 (Tex. Civ. App.-Austin 1959, writ ref'd) (2); Fisher v. Westmont Hospitality, 935 S.W.2d 222 (Tex. App.-Houston [14th Dist.] 1996, no writ); but see Hughes v. Autry, 874 S.W.2d 890 (Tex. App.-Austin 1994, no writ). Thus, in Dickey, the four-year statute of limitations would have barred a suit filed July 3, 1885 if the date of accrual, July 3, 1881, were counted. However, the court held the date of accrual is not counted in computing the period of limitations, and plaintiff had through July 3, 1885 to file suit. Dickey, 11 S.W. at 1050; see Baptist Mem'l Hosp. v. Arredondo, 922 S.W.2d 120, 121 (Tex. 1996) (limitations began to run July 17, 1991 when the negligence occurred, and the two-year limitation period expired July 17, 1993). If we were to compute the limitations period as Segura argues, he would have two full years plus one day to file a suit for personal injuries, a result clearly contrary to the language of section 16.003(a) of the Civil Practice and Remedies Code. We therefore hold the statute of limitations on Segura's negligence and intentional infliction of emotional distress claims expired on May 30, 1997.

Was May 30, 1997 a Holiday?

Segura next argues May 30, 1997 was a holiday within the meaning of section 16.072 of the Texas Civil Practice and Remedies Code and that his petition filed the next business day was therefore timely. That section provides:

If the last day of a limitations period under any statute of limitations falls on a Saturday, Sunday, or holiday, the period for filing suit is extended to include the next day that the county offices are open for business.

Tex. Civ. Prac. & Rem. Code Ann. 16.072 (Vernon 1997). Segura contends that May 30th was declared Memorial Day and a national holiday by act of Congress and is listed on some calendars as Memorial Day; thus, May 30th should come within the broad scope of the word "holiday" in section 16.072. We disagree.

Although Congress at one time declared May 30th to be Memorial Day, in 1971, Congress amended the holiday statute and declared "the last Monday in May" to be Memorial Day. Act of June 28, 1968, Pub. L. No. 90-363, 82 Stat. 250 (effective Jan. 1, 1971) (codified as amended at 5 U.S.C.A. 6103(a) (West 2000)); see also 36 U.S.C.A. 116 (a) (West 2000) ("The last Monday in May is Memorial Day"). May 30, 1997 does not fall within any of the categories of days recognized as holidays for purposes of section 16.072. It is not a recognized state or national holiday in the State of Texas, see Tex. Gov't Code Ann. 662.003 (Vernon Supp. 2000) (the last Monday in May is Memorial Day, a national holiday); it is not a "legal holiday" in the State of Texas, see id. 662.021 (Vernon 1994); it has not been "recognized by legislative declaration as being [a] general holiday[] by popular acceptance," Blackman v. Housing Auth., 152 Tex. 21, 254 S.W.2d 103, 105 (1953); it was not a day which the Bexar County Commissioners Court determined to be a holiday, see Martinez v. Windsor Park Dev. Co., 833 S.W.2d 950, 951 (Tex. 1992) (3); and the Bexar County offices were not closed on May 30, 1997.

We cannot conclude that the statute of limitations on Segura's claims was extended merely because, at one time, May 30 was a holiday under federal law or because May 30 is still designated as "Memorial Day" on some calendars. We therefore hold the statute of limitations on Segura's negligence, gross negligence, and intentional infliction of emotional distress claims expired on May 30, 1997. Because those claims were not filed until after May 30, 1997, they are barred by limitations.

Acknowledgment of debt

Finally, Segura argues Home Depot acknowledged the justness of its prior debt and promised to pay it, thus reviving any claims barred by limitations. He also argues Home Depot breached the promise to pay and the court erred in granting summary judgment on his cause of action for this breach. Home Depot moved for summary judgment on Segura's acknowledgment contentions on the grounds that: (1) there was no evidence of a prior debt; (2) there was no evidence Home Depot acknowledged liability or the justness of any debt; and (3) the acknowledgment doctrine does not apply in the context of a personal injury claim. In response to Home Depot's motion, Segura filed copies of three letters from Home Depot's claims adjuster to Segura's attorney. In the letters, the adjuster asks the attorney to contact her and requests a statement from Segura and copies of documents showing damages. Assuming the acknowledgment doctrine applies in this context, there is no evidence of a debt or that Home Depot acknowledged its justness or promised to pay, and the trial court did not err in granting summary judgment.

We therefore affirm the judgment in favor of Home Depot on all of Segura's claims.

Sarah B. Duncan, Justice

Do not publish

1. Segura also contends he was a consumer because he acquired and used Home Depot's advertising services, its "services in connection with [its] alleged building expertise," and its emergency medical services; however, Segura's claims do not arise out of any Home Depot advertising or any building advice or recommendations, nor does Segura complain of the emergency medical services provided by Home Depot.

2. By refusing the writ of error in Pitcock, the supreme court gave full approval to the opinion, thus making it as authoritative as a supreme court opinion. See Biggers v. Continental Bus. Sys., Inc., 157 Tex. 351, 303 S.W.2d 359, 364 (1957).

3. Home Depot submitted a certified copy of the relevant pages from the Bexar County Commissioners Court's 1996-1997 adopted budget in which it declared Memorial Day, Monday, May 26, 1997, to be a county holiday.