Esquivel v. Murray Guard, Inc.

• Decision Date: 18 March 1999
• Docket Number: No. 14-97-01432-CV,14-97-01432-CV
• Citation: 992 S.W.2d 536
• Parties: Debbie ESQUIVEL and Florida Residential Property & Casualty Joint Underwriters Association, Appellants, v. MURRAY GUARD, INC., Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 536

992 S.W.2d 536

Debbie ESQUIVEL and Florida Residential Property & Casualty Joint Underwriters Association, Appellants, v. MURRAY GUARD, INC., Appellee.

No. 14-97-01432-CV.

Court of Appeals of Texas Houston (14th Dist.).

March 18, 1999.

Rehearing Overruled June 10, 1999.

Thomas Lee Bartlett, Houston, for appellants.

Thomas L. Cougill, Houston, for appellees.

Panel consists of Justices YATES, AMIDEI, and FOWLER.

OPINION

WANDA McKEE FOWLER, Justice.

Appellants, Debbie Esquivel and Florida Residential Property & Casualty Joint Underwriters Association ("Esquivel") appeal from the trial court's order granting summary judgment in favor of appellee, Murray Guard, Inc. ("Murray Guard"). Esquivel brings three points of error, contending the trial court erred in (1) granting summary judgment in favor of Murray Guard on her tort claim; (2) granting summary judgment in favor of Murray Guard on her contract claim; and (3) requiring her to file a supersedeas bond for taxable court costs. We affirm.

Background

On June 19, 1994, Debbie Esquivel rented a hotel room at the Baytown La Quinta. She asked the clerk where she could park a rented U-Haul moving van containing personal property and towing her car. A clerk told her to park on the street adjacent to the hotel and assured her the van would be safe "because of the security it provided." The next day, Esquivel's van and car were missing.

Esquivel sued La Quinta for negligence, breach of warranty, breach of contract, and violations of the Texas Deceptive Trade Practices Act (DTPA), believing La Quinta was the sole provider of security. During the course of discovery, Esquivel learned that Murray Guard provided security to the La Quinta in question. She joined Murray Guard on August 30, 1996, and Murray Guard filed a motion for summary judgment asserting that the statute of limitations had run and that the discovery rule did not apply. The court granted the motion and severed Murray Guard.

Standard of Review

In reviewing the court's order granting summary judgment, we take as true all evidence favoring the non-movant and indulge every reasonable inference in its favor. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). When a defendant moves for summary judgment on the basis of an affirmative defense, such as a statute of limitations, it must prove conclusively all elements of the affirmative defense as a matter of law and preclude all genuine issues of material fact. See Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex.1997); University of Houston v. Sterling Bank, 963 S.W.2d 93, 94 (Tex.App.--Houston [14 th Dist.] 1997, writ denied). If the plaintiff pleads the discovery rule as an exception to the running of the statute of limitations, the movant must negate that exception as well. See Winograd, 956 S.W.2d at 530. If the movant establishes its right to summary judgment, the burden shifts to the non-movant to present summary judgment proof to establish a genuine issue of material fact. See Sterling Bank, 963 S.W.2d at 94.

Point of Error One

Point of error one consists of three subpoints: Esquivel argues the trial court erred in granting summary judgment for Murray Guard on her tort claim because (1) Murray Guard did not negate the discovery rule, (2) Murray Guard did not negate the equitable exclusion rule, and (3) a genuine issue of material fact exists as to whether La Quinta and Murray Guard entered into a joint enterprise.

The Discovery Rule

The purpose of limiting the time in which a plaintiff can bring a cause of action is to compel the exercise of a plaintiff's rights within a reasonable time to allow an opposing party to defend itself while witnesses are available and evidence is fresh in their minds. See Computer Assocs., Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex.1996). The parties agree that Esquivel's causes of action for negligence and violations of the Texas Deceptive Trade Practices Act must be brought within two years after the cause of action accrues. See TEX. BUS. & COM.CODE ANN. § 17.566 (Vernon 1987); TEX. CIV. PRAC. & REM.CODE ANN. § 16.003 (Vernon 1986). Generally, a cause of action accrues when a wrongful act causes a legal injury, regardless of when the plaintiff learned of his injury. See S.V. v. R.V., 933 S.W.2d 1, 4 (Tex.1996). The discovery rule, however, when applied, tolls the running of the statute of limitations until the plaintiff discovered or should have discovered the nature of his injury. See Murphy v. Campbell, 964 S.W.2d 265, 271 (Tex.1997).

The discovery rule applies when an injury is inherently undiscoverable and the evidence of the injury is objectively unverifiable. See Altai, 918 S.W.2d at 456. An injury is inherently undiscoverable if "it is difficult for the injured party to learn of the negligent act or omission." Id. (quoting Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988)). It must be "by nature unlikely to be discovered despite due diligence." Marshall v. First Baptist Church, 949 S.W.2d 504, 507 (Tex.App.-Houston [14 th Dist.] 1997, no writ). It need not be absolutely impossible to discover. See S.V., 933 S.W.2d at 7.

Esquivel admits that she knew of her injury in June of 1994, but she claims she did not know Murray Guard was a cause until La Quinta responded to discovery. Esquivel's contention is similar to the plaintiff's unsuccessful argument in Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 344 (Tex.1992). In Ingersoll-Rand, the plaintiffs argued that the discovery rule tolled the running of the statute of limitations until it could be determined who was responsible for their injury. The court disagreed, noting that "limitations begin to run when the fact of the injury is known, not when the alleged wrongdoers are identified." Id. at 344 n. 3. Similarly, in Seibert v. General Motors Corp., 853 S.W.2d 773 (Tex.App.--Houston [14 th Dist.] 1993, no writ), the plaintiff argued the discovery rule applied because he did not know he had a cause of action against a vehicle manufacturer until he read a news program transcript concerning the safety of the seatbelt he was wearing at the time of his car accident. Id. at 776. We disagreed that the rule applied and held that it applies only to the discovery of the injury. Id. at 776-77. Because the plaintiff's injury was discoverable and, indeed, discovered on the date of the collision, the running of the statute of limitations was not tolled by the discovery rule. Id. at 777.

In short, Esquivel's attempt to toll the running of the limitation because she was not aware Murray Guard was a potential wrongdoer runs afoul of the language in Ingersoll-Rand and Seibert and is counter to the purpose of the discovery rule. We hold that the discovery rule does not apply based on Esquivel's failure to determine that Murray Guard was a potential defendant. Murray Guard negated the discovery rule as a matter of law, and Esquivel's summary judgment proof does not raise a genuine issue of material fact as to its applicability.

The Hilland Exception

Next, Esquivel argues Murray Guard did not negate the equitable preclusion rule. As noted above, the purpose of statutes of limitation is to preclude stale claims and to give the defendant the opportunity to defend the lawsuit while witnesses are available and information is fresh in their minds. See Altai, 918 S.W.2d at 455; Vinson & Elkins v. Moran, 946 S.W.2d 381, 413 (Tex.App.--Houston [14 th Dist.] 1997, writ dism'd by agr.). In some circumstances, however, the potential defendant is on notice of the claim against it, and it is not prejudiced by being sued after the limitations period expired. In Continental Southern Lines, Inc. v. Hilland, 528 S.W.2d 828 (Tex.1975), the Texas Supreme Court outlined an equitable exception to the statute of limitations under these circumstances. The Hilland exception does not apply when the plaintiff names an existing but improper entity; rather, it only applies when the plaintiff files a lawsuit against the correct party and uses an incorrect name. See Enserch Corp. v. Parker, 794 S.W.2d 2, 4-5 (Tex.1990). In the latter instance, the petition will relate back to the date of the original filing once the plaintiff correctly names the defendant; in the former, it does not relate back. See id. at 5. In this case, Esquivel did not sue Murray Guard under an incorrect name; rather, she sued a separate entity under its correct name. Thus, Esquivel's petition does not relate back to the date she sued La Quinta, and her argument is without merit.

Joint Enterprise Rule

Next, Esquivel argues that, under the joint enterprise rule, her joinder of Murray Guard relates back to the date she sued La Quinta. Under this rule, courts impute liability to one who was not an active wrongdoer but who is so closely connected to the wrongdoer to warrant the imposition of vicarious liability. See, e.g., Shoemaker v. Estate of Whistler, 513 S.W.2d 10, 13 (Tex.1974). To establish a joint enterprise, the plaintiff must prove (1) an express agreement; (2) a common purpose; (3) a common pecuniary interest; and (4) an equal right to control the enterprise. See Triplex Communications, Inc. v. Riley, 900 S.W.2d 716, 718 (Tex.1995). On summary judgment, the defendant has the burden to negate the existence of a joint enterprise. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1994).

As an initial matter, we note that the joint enterprise theory is a vehicle to impose vicarious liability, not, as Esquivel contends, a relation-back method. "The theory of joint enterprise is to make each party thereto the agent of the other and thereby to hold each responsible for the negligent act of the other." Shoemaker, 513 S.W.2d at 14; see also RESTATEMENT (SECOND) OF TORTS, § 491 (1965). Generally, an employer/employee relationship would not qualify as a joint enterprise because there is no mutuality of control-the employer has control over the employee and usually is...