Brooks Fashion Stores, Inc. v. Northpark Nat. Bank
| Decision Date | 03 April 1985 |
| Docket Number | No. 05-84-00429-CV,05-84-00429-CV |
| Citation | 689 S.W.2d 937 |
| Parties | BROOKS FASHION STORES, INC., Appellant, v. NORTHPARK NATIONAL BANK, Appellee. |
| Court | Texas Court of Appeals |
Patrick F. McManemin, Jane White, Dallas, for appellant.
Nathan Allen, Jr., Dallas, for appellee.
Before GUILLOT, DEVANY and WILLIAMS 1, JJ.
Brooks Fashion Stores, Inc., sued Northpark National Bank for loss of a bag of jewelry deposited with the bank. Brooks alleged violation of the Deceptive Trade Practices Act and later also claimed breach of contract and conversion. The trial court granted summary judgment for the bank based on the statutes of limitations. We agree that the summary judgment was proper with respect to the claims for deceptive trade practices and conversion, but we reverse and remand for trial of the cause of action for breach of contract.
Because Brooks appeals the trial court's rendition of summary judgment, we accept as true all evidence tending to support its position. Fisher v. Beach, 671 S.W.2d 63, 66 (Tex.App.--Dallas 1984, no writ); Morgan v. Pool Co., 641 S.W.2d 370, 371 (Tex.App.--Dallas 1982, writ ref'd n.r.e.). Brooks, which owns several dress stores, maintains an outlet at Dallas' Northpark Mall. On January 16, 1981, two Brooks employees placed certain jewelry items in a night deposit bag and delivered it to one of the tellers at the bank during normal business hours. The teller accepted the bag, agreed to keep it until Brooks requested it, and issued a written receipt. 2 Six days later, 3 the bank notified Brooks that the jewelry could not be located.
The bank then filed a claim with its insurer to reimburse Brooks for the jewelry's value. Responding to the bank's letter requesting information about the loss, a Brooks representative stated that the jewelry was removed from the store "solely for safekeeping." In September 1981, the bank notified Brooks that it would not pay for the lost jewelry.
The following year, the supplier of the jewelry sued Brooks in Florida to recover its value. The record does not reveal this action's outcome; however, on March 4, 1983, Brooks demanded in writing that the bank pay Brooks for the value of the jewelry and its legal expenses resulting from the jewelry's loss. The bank refused and Brooks initiated the present suit on May 24, 1983, alleging that the bank breached express warranties and made false, misleading representations in violation of section 17.46(b) of the Deceptive Trade Practices--Consumer Protection Act. 4 TEX.BUS. & COM.CODE ANN. § 17.46(b) (Vernon Supp.1985).
The bank answered with a general denial and the affirmative defense that limitations barred Brooks' D.T.P.A. action. It later moved for summary judgment on the basis of this affirmative defense. Brooks then supplemented its petition to allege that the bank breached the night depository service contract and converted the jewelry. After filing the supplemental petition, Brooks responded to the bank's summary judgment motion.
The trial court ordered a November 9 hearing on the motion. The record does not reflect whether the trial court entertained the bank's motion on that date. Brooks did not contest the bank's argument that trial court heard its motion on that date. Both agree that another hearing was held on January 10, 1984. On December 30, 1983, Brooks filed its first amended original petition alleging for the first time that the bank breached a bailment contract in addition to the breach of the night deposit contract, conversion and D.T.P.A. actions pleaded in its original and supplemental petitions. Four days later, Brooks filed its affidavit opposing the rendition of summary judgment. On January 10, 1984, the trial court again heard the bank's motion and thereafter rendered summary judgment.
The bank contends that the trial court could not properly consider Brooks' amended petition alleging for the first time that the bank breached an oral bailment contract or its affidavit opposing the summary judgment motion because both were filed after the November 9 hearing without the trial court's permission. We disagree. The trial court's judgment recites that it heard the motion on January 10, 1984, rather than November 9, 1983. In the absence of a nunc pro tunc order, we must consider the hearing to have been held on the date recited in the judgment. Horne v. Charter National Insurance Co., 614 S.W.2d 182, 184 (Tex.Civ.App.--Fort Worth 1981, writ ref'd n.r.e.).
When January 10 is taken as the day of the hearing, the amended petition, filed December 30, was untimely under Dallas' local rules. DALLAS CIV.CT.R. 1.9. Also, the opposing affidavit, filed January 7, was untimely under rule 166-A(c). TEX.R.CIV.P. 166-A(c). However, the bank did not file a motion to strike either of these documents, nor did the court strike them sua sponte. Consequently, the bank may not now contend that they were not properly before the trial court when it ruled on the bank's motion. Jones v. Houston Materials Co., 477 S.W.2d 694, 695-96 (Tex.Civ.App.--Houston [14th Dist.] 1972, no writ); see also Amoco Production Co. v. Thompson, 657 S.W.2d 824, 827-28 (Tex.App.--Corpus Christi), rev'd on other grounds sub nom. Ideal Lease Service, Inc. v. Amoco Production Co., 662 S.W.2d 951 (Tex.1983).
The bank next argues that, even if the amended petition was timely filed, we could not reverse its summary judgment on the ground that limitations did not bar Brooks' action for breach of an oral bailment contract because Brooks did not raise that issue in its response to the motion as required by Rule 166-A(c). This contention is without merit because a "non-movant needs no answer or response to the motion to contend on appeal that the grounds expressly presented to the trial court by the movant's motion are insufficient as a matter of law to support summary judgment." City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979) (emphasis in original).
Accordingly, even if Brooks had filed no response, it would still be entitled to argue on appeal that the bank's motion is insufficient to show that the actions presented to the trial court were barred by limitations. Since the amended pleading was before the trial court, Brooks may contend on appeal that limitations did not preclude any cause of action alleged in its amended petition.
We now turn to the issue of whether the bank's grounds for summary judgment are insufficient as a matter of law to support the trial court's judgment. This motion rested on two grounds. The bank first contended that, because Brooks' action was for "detaining personal property ... or taking its goods and chattels, it ... must be brought within two years after the cause of action accrued." TEX.REV.CIV.STAT.ANN. art. 5526 (Vernon Supp.1985). The bank also argued that Brooks' D.T.P.A. claim was barred by section 17.56A of that act. TEX.BUS. & COM.CODE ANN. § 17.56A (Vernon Supp.1985). The bank presented no other grounds supporting its motion.
In its first four points of error, Brooks argues that it had four years to bring suit because its action was based on the bank's breach of either a bailment or deposit contract. In response, the bank argues that, if this transaction was a deposit, Brooks cannot sue on breach of the written night deposit contract because it is legally inapplicable to the transaction which gave rise to this lawsuit. The bank also argues that, if this transaction was a bailment rather than a deposit, Brooks has no breach of contract action because the promise, if any to keep the jewelry was not supported by consideration.
The bank did not raise these contentions in its motion; therefore, we may not decide them because summary judgment cannot be supported on appeal by grounds not presented to the trial court in the motion. Roling v. McGeorge, 645 S.W.2d 886, 887 (Tex.App.--Tyler 1983, no writ); see also Vendig v. Traylor, 604 S.W.2d 424, 430 (Tex.Civ.App.--Dallas 1980, writ ref'd n.r.e.).
Brooks argues that placing the jewelry in the night deposit bag and leaving the bag in the bank's custody constituted a "deposit" under the terms of either its night depository service contract with the bank or under its oral agreement with the teller. From this assertion, Brooks concludes that the limitations period specified by the statute governing suits for breach of a deposit contract should govern our decision whether its suit for breach of contract is barred by limitations.
TEX.REV.CIV.STAT.ANN. art. 342-701 specifies the limitations period in suits for breach of deposit contracts. The version of that article in effect in January 1981 provided that "[t]he contract of deposit between a bank and a depositor ... shall be deemed a contract ... within the purview of article 5527...." Texas Banking Code of 1943, ch. 97, ch. VII, art. 7, 1943 Tex.Gen.Laws 127, 157, amended by Act of June 15, 1971, ch. 947, § 2, 1971 Tex.Gen.Laws 2875, 2876, amended by Act of June 19, 1983, ch. 525, § 1, 1983 Tex.Gen.Laws 3056. Under article 5527, limitations bars a cause of action if suit is not filed within four years after the cause of action accrues. TEX.REV.CIV.STAT.ANN. art. 5527 (Vernon Supp.1985).
The bank argues that this version of article 342-701 is inapplicable to the present case because only negotiable instruments and cash, not tangible personal property, can be the object of a deposit contract. However, we need not decide whether this transaction is a "deposit" under that statute because the issue on appeal is not whether article 5527 or article 342-701 properly governs, 5 but whether limitations under article 5526 precluded suit later than two years after the cause of action accrued. We hold that it does not.
"Actions for debt" must be "commenced and prosecuted within four years after the cause of action ... accrued." TEX.REV.CIV.STAT.ANN....
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