Perez v. Lear Siegler, Inc.

• Citation: 797 S.W.2d 222
• Decision Date: 31 August 1990
• Docket Number: No. 13-89-348-CV,13-89-348-CV
• Parties: 13 UCC Rep.Serv.2d 154, Prod.Liab.Rep. (CCH) P 12,704 Herlinda PEREZ, Individually and as Administratrix of the Estate of Rafael Pablo Perez, Deceased, et al., Appellants, v. LEAR SIEGLER, INC., et al., Appellees.
• Court: Court of Appeals of Texas

Page 222

797 S.W.2d 222

13 UCC Rep.Serv.2d 154, Prod.Liab.Rep. (CCH) P 12,704

Herlinda PEREZ, Individually and as Administratrix of the Estate of Rafael Pablo Perez, Deceased, et al., Appellants, v. LEAR SIEGLER, INC., et al., Appellees.

No. 13-89-348-CV.

Court of Appeals of Texas,

Corpus Christi.

Aug. 31, 1990.

Rehearing Overruled Oct. 11, 1990.

Ramon Garcia and Catherine W. Smith, Edinburg, for appellents.

Benny M. Cason, Frank E. Weathered, Corpus Christi, and Rose Marie Guerra Reyna, Lewis, Pettitt & Hinojosa, McAllen, for appellees.

Don B. Morgan, Austin, for intervenor.

Before NYE, C.J., and BENAVIDES and KEYS, JJ.

OPINION

NYE, Chief Justice.

Appellants, Herlinda Perez, individually and as the administratrix of the Estate of Rafael Pablo Perez, Deceased, Marla Sandra Perez and Roberto Perez, appeal the take-nothing judgment granted in favor of appellees, Lear Siegler, Inc. (Lear) and Dallas Lite and Barricade, Inc. (Dallas Lite). Appellants assert five points of error. We affirm in part and reverse and remand in part.

Appellants filed this suit in response to the death of Rafael Pablo Perez, who was injured while in the course of employment with the Texas Department of Highways and Public Transportation (TDH & PT). On October 22, 1985, Perez was towing an arrow signboard behind a road-sweeping operation on State Highway 83 near Mercedes, Texas. For some unknown reason, Perez stopped his vehicle on the highway and got out. As he was outside his vehicle, a van operating on the highway collided with the signboard, which in turn hit Perez, throwing him into the air and causing him to sustain serious injuries and die.

Appellants initially sued Alfonso Lerma, the van driver, and his employer, Southwestern Drug Corporation, and TDH & PT. These parties settled their cases out of court. Subsequently, on June 5, 1987, in their fifth amended original petition, appellants filed suit against Lear, the signboard's manufacturer, alleging liability for Perez' death based on negligence and strict liability theories. On August 23, 1988, in their sixth amended petition, appellants filed suit against Dallas Lite, the distributor of the signboard, alleging liability for Perez' death, again on negligence and strict liability theories. Dallas Lite answered and moved for summary judgment. The summary judgment was based upon Tex.Civ.Prac. & Rem.Code Ann. § 16.003 (Vernon 1986), whereby Dallas Lite contended that the two-year statute of limitations precluded appellants' wrongful death claim on the tort theories. Appellants responded by filing their seventh amended petition contending now that Lear and Dallas Lite were also liable on a breach of warranty theory.

The trial court granted summary judgment favorable to Dallas Lite on the negligence and strict liability claims but denied such relief on the breach of warranty claim. Thereafter Dallas Lite filed its second motion for summary judgment alleging that Tex.Bus. & Com.Code Ann. § 2.725 (Vernon 1968) precluded appellants' action based on the four-year statute of limitations for actions regarding breaches of warranty for sales of goods. ¹ The trial court denied Dallas Lite's second motion for summary judgment.

Lear then filed its first motion for summary judgment based upon a limitations defense to the breach of warranty claim and also contended that elements of recovery had been negated as a matter of law. Dallas Lite followed, filing its third motion for summary judgment based upon evidence that the signboard was functioning properly at the time of Perez' injuries and therefore, the existence of a defective product was negated as a matter of law. Appellants then responded to the two summary judgment motions with the three affidavits discussed in detail below.

On July 6, 1989, the date of the summary judgment hearings, Lear filed a written objection to appellant's affidavits alleging that two of them violated the provisions of Tex.R.Civ.P. 166a(e) in that they were not proper summary judgment evidence and that the third provided irrelevant evidence which would be inadmissible at trial. At the hearing on the two motions, the trial court granted Lear's summary judgment motion and granted Dallas Lite's second and third motions and entered a take-nothing judgment against appellants.

A summary judgment is proper only when the movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); R.I.O. Systems, Inc. v. Union Carbide Corp., 780 S.W.2d 489, 490 (Tex.App.--Corpus Christi 1989, writ denied); Wyatt v. Mealy, 704 S.W.2d 63, 64 (Tex.App.--Corpus Christi 1985, no writ). In deciding whether a disputed material fact issue exists to preclude summary judgment, evidence favorable to the non-movant will be accepted as true. Thus, every reasonable inference will be indulged in favor of the non-movant and any doubts resolved in his favor. On appeal, as well as at trial, the issue is not whether the summary judgment proof raises fact issues regarding the essential elements of the plaintiff's claim or cause of action, but rather, whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact concerning one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); R.I.O Systems, 780 S.W.2d at 490; Denison v. Haeber Roofing Co., 767 S.W.2d 862, 864 (Tex.App.--Corpus Christi 1989, no writ); Tex.R.Civ.P. 166a(c).

By their first three points of error, appellants assert that the trial court erred in granting appellees' summary judgment because neither appellee proved as a matter of law that no fact questions remained on any of appellants' claims, that appellants proved through competent evidence that Perez was near the signboard at the time of the accident because of a malfunction in the signboard, thus raising a causation issue, and, in the alternative, that the trial court erred by failing to allow appellants to correct the form of their affidavits in response to appellees' motions. By their fourth and fifth points of error, appellants assert that § 2.725 of the Texas Business and Commerce Code violates the provisions of Tex. Const. art. I, § 13, also known as the "Open Courts" provision, and as such is contrary to the spirit of Texas law.

Section 2.725 states:

(a) An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued ...

(b) A cause of action accrues when the breach occurs, regardless of the aggrieved party's knowledge of the breach. A breach of warranty occurs when tender of delivery is made ...

Tex.Bus. & Com.Code Ann. § 2.725 (Vernon 1968). The language of the statute clearly states that a cause of action for breach of warranty arising from a contractual relationship accrues at the time of delivery, not at the time of discovery. Safeway Stores, Inc. v. Certainteed Corp., 710 S.W.2d 544, 546 (Tex.1986); Cherry v. Chustz, 715 S.W.2d 742, 745 (Tex.App.--Dallas 1986, no writ); Madden v. J.I. Case Co., 712 S.W.2d 181, 182 (Tex.App.--Houston [14th Dist.] 1986, no writ); Weeks v. J.I. Case Co., 694 S.W.2d 634, 636 (Tex.App.--Texarkana 1985, writ ref'd n.r.e.); Fitzgerald v. Caterpillar Tractor Co., 683 S.W.2d 162, 165-66 (Tex.App.--Fort Worth 1985, writ ref'd n.r.e.); Southerland v. Northeast Datsun, Inc., 659 S.W.2d 889, 892 (Tex.App.--El Paso 1983, no writ). Accrual of the cause of action occurs regardless of the aggrieved party's lack of knowledge of the breach unless the parties explicitly extend the warranty to future performance of the goods. Safeway Stores, 710 S.W.2d at 546.

The "Open Courts" provision of the Texas Constitution states, in pertinent part:

All courts shall be open, and every person for an injury done him, in his lands, goods, person, or reputation, shall have a remedy by due course of law.

Tex. Const. art. 1, § 13. A party contending that a statute is unconstitutional must show (1) that he was denied an established common-law cause of action, and (2) that the legislative restriction was unreasonable or arbitrary. Neagle v. Nelson, 685 S.W.2d 11, 12 (Tex.1985); Nelson v. Krusen, 678 S.W.2d 918, 922 (Tex.1984); Sax v. Votteler, 648 S.W.2d 661, 666 (Tex.1983).

In Sax, the supreme court found that the two-year statute of limitations set forth in Article 5.82, § 4 of the Texas Insurance Code (repealed) (now Tex.Civ.Stat. art. 4590i, § 10.01 (Vernon Supp.1990)) violated the "Open Courts" provision because it purportedly barred a cause of action for medical malpractice by minors over the age of six. ² Prior to the Court's decision, the plaintiff in Sax was barred from asserting her common law cause of action for medical malpractice because she discovered her injuries several years after the defendant physician had attended her medical needs and after the two-year limitations period had run. In Krusen, the supreme court held that Article 5.82, section 4 unreasonably barred the plaintiffs from asserting their claim for negligent genetic counselling when the plaintiff's child was diagnosed with a latent genetic disease two years after the limitations on the counselling had run. In Neagle, the same two-year medical malpractice statute of limitations cited above was invalidated as it barred the patient from asserting his common law remedies after discovering a surgical sponge in his abdomen more than two years after the surgical procedure had been performed. In all three cases, the supreme court held that the "Open Courts" provision guarantees a plaintiff a reasonable opportunity to assert a common law cause of action although the injury is discovered after the medical malpractice limitations statute appears to bar the action.

The Sax test has also been applied to negate assertions that the four-year limitations statute for breach of warranty claims...