Gardner v. Best Western Intern., Inc.

Decision Date04 September 1996
Docket NumberNo. 06-96-00009-CV,06-96-00009-CV
Citation929 S.W.2d 474
PartiesHilary GARDNER, Appellant, v. BEST WESTERN INTERNATIONAL, INC., Appellee.
CourtTexas Court of Appeals

Lynn A. Grisham, Waltman & Associates, Shane M. Sanders, Bryan, for Appellant.

Don Martinson, Alan Powers Moore, Sharis Lea Hauder, Fanning, Harper, Martinson, Dallas, for Appellee.

Before CORNELIUS, C.J., and GRANT and STARR, JJ.

OPINION

CORNELIUS, Chief Justice.

The question in this summary judgment appeal is whether the law of the state of Quintana Roo, Mexico, provides a cause of action to an injured hotel guest against a nonprofit marketing association that contracted to provide quality control inspections for the hotel. We conclude that the law does provide a cause of action in some circumstances, and we therefore affirm the take-nothing summary judgment in part and reverse and remand in part.

Hilary Gardner, a resident of Scotland, was a guest at the Hotel Playa Blanca in Cancun, Mexico. On September 12, 1990, while diving into the hotel swimming pool, she hit her head on the bottom, causing her permanent and paralyzing injuries. She alleges that because the pool was marked as being 4- 1/2 feet deep but was actually only 2- 1/2 feet deep, it was maintained in a dangerous condition.

Hotel Playa Blanca is independently owned and operated in the state of Quintana Roo, Mexico. Best Western International is a nonprofit association of independently operated hotels throughout the United States and Canada. BWI operates as a cooperative marketing association providing reservation and marketing services to its members. Hotel Playa Blanca entered into a membership agreement with a Mexican company, Best Western de Mexico, which had signed a licensing agreement with BWI. The agreement provided that a BWI field representative would conduct quality control inspections of associated properties, including Hotel Playa Blanca.

The agreement allowed Best Western de Mexico to use BWI's trade names, trademarks, service marks, and membership marks "for the purpose of establishing a single international marketing identity of the availability of BWI type services to motels, hotels and resorts" in Mexico. The agreement allowed Best Western de Mexico to form an "Affiliate Organization" of at least fifteen lodging facilities, each of which had the right to use BWI trademarks, logos, and insignias. The agreement required each member of the affiliate organization to meet certain quality standards.

Gardner filed suit against several parties, eventually nonsuiting all parties except BWI, alleging negligence, gross negligence, strict liability, strict liability-misrepresentation, and certain statutory violations. Her principal allegation is that BWI failed to adequately inspect and ensure the safety of the Hotel Playa Blanca pool.

The trial court ruled that the substantive law of Quintana Roo applies to all issues of liability and damages. Neither party appeals that decision.

BWI moved for summary judgment October 25, 1994. It supported its motion by an affidavit from Javier Legarreta Matinez, a Mexican attorney, who said the law of Quintana Roo provided no cause of action to Gardner. Gardner filed her first amended petition and response to that motion on November 28, 1994. Her response included an affidavit from Ignacio Gomez-Palacio, an attorney practicing in Mexico City. On May 19, 1995, BWI filed its first amended motion for summary judgment to address new claims in Gardner's amended petition.

In its amended motion for summary judgment, BWI sought judgment on grounds that (1) BWI did not own, operate, or possess the Hotel Playa Blanca in September 1990, or at any other time; (2) BWI is not an individual capable of committing an "act of man" under the law of Quintana Roo; (3) BWI is not an individual "exercising a profession" under the law of Quintana Roo; and (4) the affiliation agreement and its addendum contain no express stipulations in favor of Gardner as a third-party beneficiary that would give rise to liability under C.C.Quintana Roo arts. 253 and 254. In BWI's second supplement to its first amended motion for summary judgment, it added another ground: no legal representative of BWI had conducted any inspection or review of the swimming pool at the hotel at the time of the incident.

Gardner filed a first amended response on July 14, 1995, with an affidavit from Stephen T. Zamora, a law professor and director of the International Law Institute at the University of Houston Law Center. The trial court scheduled the summary judgment hearing for July 21, 1995. On July 20, BWI filed an objection to the Zamora affidavit on grounds that (1) Gardner did not provide it as proof of foreign law thirty days before the summary judgment hearing pursuant to TEX.R.CIV.EVID. 203, and (2) Zamora was not a Mexican attorney and thus was not qualified. On July 21, the date of the hearing, Gardner filed her second amended petition, and BWI filed its first supplement to its first amended motion for summary judgment, which attached an affidavit from Mexican attorney Javier Navarro Velasco. BWI also filed objections to the Gomez-Palacio affidavit and a supplement to its objection to the Zamora affidavit on grounds that Gomez-Palacio and Zamora did not represent the facts contained in the affidavits to be true and within the affiants' personal knowledge.

On July 26, 1995, BWI filed its second supplement to its first amended motion for summary judgment and a motion to shorten the time for Gardner's response to BWI's second supplement to its first amended motion for summary judgment. The court granted the motion and ordered Gardner to file her response by July 28. Also on July 26, Gardner filed a first amended affidavit from Zamora, in which he stated that the facts and statement in the affidavit were true and correct. On July 28, BWI moved to strike Gardner's second amended petition and Gardner filed her third amended petition. On July 31, BWI filed an objection to and a motion to strike Gardner's third amended petition and first amended Zamora affidavit, adding to the previously stated grounds that it was not at least seven days prior to the summary judgment hearing. On November 29, 1995, the court granted BWI's motion for summary judgment.

Before we consider whether Gardner has a cause of action under Mexican law, we must decide what remedies she pleaded.

BWI contends that we should consider only Gardner's first amended petition and should ignore her second and third amended petitions, which she filed after the seven-day cutoff period before the July 21, 1995 summary judgment hearing. TEX.R.CIV.P. 166a(c). 1 Gardner filed her second amended petition on July 21, the date of the hearing, and her third amended petition on July 28, a week after the hearing. In her first amended petition, Gardner relies on C.C.Quintana Roo arts. 87, 115, 119-VIII, 97 and 253. She did not claim a remedy under C.C.Quintana Roo art. 100 until her second amended petition, and did not seek relief under C.C.Quintana Roo arts. 96 and 254 until her third amended petition. 2

Although BWI says Gardner did not raise Article 254 until the third amended petition, she raised the substance of Article 254 in her first amended petition, but simply failed to cite the article number until her third amended petition. Consequently, we conclude that Gardner raised claims under Articles 253 and 254, concerning third-party contractual rights, in her first amended petition.

A party may file amended pleadings within seven days of trial only with leave of the court. TEX.R.CIV.P. 63 3; Goswami v. Metropolitan Sav. and Loan Ass'n, 751 S.W.2d 487, 490 (Tex.1988). The judge shall grant leave unless the opponent demonstrates that the amendments will operate as a surprise. TEX.R.CIV.P. 63; Goswami v. Metropolitan Sav. and Loan Ass'n, supra. The trial court's action in considering an amended pleading may cure the failure to obtain leave, if there is no showing of surprise to the opposing party. Goswami v. Metropolitan Sav. and Loan Ass'n, supra; Johnson v. Rollen, 818 S.W.2d 180 (Tex.App.--Houston [1st Dist.] 1991, no writ). A summary judgment is a trial within the meaning of Rule 63. Goswami v. Metropolitan Sav. and Loan Ass'n, supra.

Here, BWI filed motions to strike Gardner's second and third amended pleadings, and according to a docket entry, the trial court denied the motions to strike. Moreover, the trial court specifically granted BWI's motion to shorten the time Gardner had to respond to BWI's second supplement to BWI's first amended motion for summary judgment and required Gardner to file her response by July 28. The trial court in its November 29, 1995 summary judgment order also stated that it had reviewed "the pleadings."

BWI argues that, because the trial court stated that it considered the "pleadings and the evidence submitted [with the first amended motion for summary judgment]," and that because the first amended motion for summary judgment referenced only the first amended petition, the trial court, in effect, was stating that it considered only the first amended petition. We do not read the court's order that narrowly. Moreover, the trial court denied the motions to strike. In those circumstances, we presume that the trial court considered the amended pleadings and that the failure to grant leave was cured.

Gardner contends that the trial court erred in granting summary judgment because (1) C.C.Quintana Roo arts. 87, 96 and 100 provide causes of action for her negligence; and (2) C.C.Quintana Roo arts. 253 and 254 provide her causes of action as a third-party beneficiary under the agreement between the hotel and BWI.

Summary Judgment

A trial court may properly grant a summary judgment only when the movant establishes that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law....

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