Pirtle v. Kahn

• Decision Date: 18 August 2005
• Docket Number: No. 01-04-00147-CV.,01-04-00147-CV.
• Citation: 177 S.W.3d 567
• Parties: Connie Pirtle, Appellant, v. Zafar I. KAHN, Newport Asset Management, Inc., E.H. Apartments, A Texas Limited Partnership, Skyline Holdings, Inc., and Eagle Hollow Apartments a/k/a E.H. Apartments, Greystar Management Services, L.P. d/b/a Greystone Management Services d/b/a/ Eagle Hollow Apartments And Greystone Holdings, Inc., Appellees.
• Court: Texas Supreme Court

Page 567

177 S.W.3d 567

Connie Pirtle, Appellant, v. Zafar I. KAHN, Newport Asset Management, Inc., E.H. Apartments, A Texas Limited Partnership, Skyline Holdings, Inc., and Eagle Hollow Apartments a/k/a E.H. Apartments, Greystar Management Services, L.P. d/b/a Greystone Management Services d/b/a/ Eagle Hollow Apartments And Greystone Holdings, Inc., Appellees.

No. 01-04-00147-CV.

Court of Appeals of Texas, Houston (1st Dist.).

August 18, 2005.

Rehearing Overruled September 19, 2005.

COPYRIGHT MATERIAL OMITTED

Connie Pirtle, Tahoka, TX, Damon C. Richards, Lubbock, TX, for Appellant.

Andrew C. Schirrmeister, III, George Diaz-Arrastia, Ruth Ellen Shapiro, Schirrmeister Diaz-Arrastia, LLP, Houston, TX, for Appellees.

Panel consists of Justices NUCHIA, KEYES, and BLAND.

OPINION

EVELYN V. KEYES, Justice.

Appellant, Connie Pirtle, brought suit against appellees, Zafar I. Khan, Newport Asset Management, Inc., E.H. Apartments, a Texas Limited Partnership, Skyline Holdings, Inc., and Eagle Hollow Apartments a/k/a E.H. Apartments, Greystar Management Services, L.P. d/b/a Greystone Management Services d/b/a Eagle Hollow Apartments and Greystone Holdings, Inc. for negligence, premises liability, fraud, and violations of the Texas Deceptive Trade Practices Act (DTPA).¹ In one point of error, appellant contends that the trial court erred in granting appellees' motion for summary judgment.

We affirm in part and reverse in part.

Background

On September 27, 1994, appellant signed a lease agreement to rent an apartment at Eagle Hollow Apartments (Eagle Hollow) from appellees. Appellant became sick shortly after moving into Eagle Hollow. She visited a number of physicians over the years who diagnosed her with a host of aliments. These included a diagnosis of Epstein-Barr virus in December 1994 or 1995 and a diagnosis of fibromyalgia in 1996.

In July 1999, appellant noticed a leak in the ceiling of her apartment and found mold. She stated in her deposition that she had a "major revelation" when she found the mold and that "I was delighted to have found a leak because I believed that was why—that made sense to me that my health had been absolutely deteriorating since the moment I moved in there." Appellant contacted the management at Eagle Hollow. Management sent a repairman who cleaned the air conditioning unit, sealed the mold, and painted the wall where the mold had been. On July 11, 2000, appellant wrote Eagle Hollow management and stated, "My doctors, who are giving me IVs every Tuesday and Thursday of intensive care combatants for immune deficiency disease, tell me that my home environment is my health problem."

On July 11, 2002, appellant filed this suit, alleging negligence, premises liability, fraud, and DTPA violations. Appellees filed a traditional motion for summary judgment alleging that appellant's causes of action were barred by the applicable statutes of limitations. See TEX.R. CIV. P. 166a(c).

The trial court granted appellees' motion for summary judgment, without stating its reasons, and dismissed appellant's causes of action. This appeal followed.

Standard of Review for Summary Judgment

The standard of review for a traditional motion for summary judgment requires the defendant who filed the summary judgment motion (1) to show that there is no genuine issue of material fact as to at least one element of each of the plaintiff's causes of action or (2) to establish each element of the defendant's affirmative defense. TEX.R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). We assume all the evidence favorable to the non-movant (appellant) is true, indulge every reasonable inference in favor of the non-movant, and resolve any doubts in favor of the non-movant. Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex.2001). When, as here, the trial court's summary judgment order does not specify the ground or grounds on which summary judgment is rendered, we will affirm the summary judgment if any ground stated in the motion is meritorious. Id. (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989)).

Discussion

In one point of error, appellant argues that the trial court erred in granting appellees' motion for summary judgment because appellees did not establish their affirmative defense of limitations with respect to any of her claims.

Applicable Limitations Periods

Appellant alleged causes of action for negligence, premises liability, fraud, and DTPA violations. Appellant's negligence and premises liability causes of action are both actions for personal injury governed by Texas Civil Practice and Remedies Code section 16.003. See TEX. CIV. PRAC. & REM.CODE ANN. § 16.003 (Vernon 2002); Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 435 n. 1 (Tex.App.-Houston [1st Dist.] 2000, no pet.) (applying section 16.003 to negligence cause of action); Brinker v. Looney, 135 S.W.3d 280, 284 (Tex.App.-Fort Worth 2004, no pet.) (applying section 16.003 to premises liability).² Section 16.003 provides that a person must bring a suit for personal injury within two years after the cause of action accrues. TEX. CIV. PRAC. & REM.CODE ANN. § 16.003.

The statute of limitations for appellant's DTPA claim is provided by section 17.565 of the Texas Business and Commerce Code. See TEX. BUS. & COM.CODE ANN. § 17.565 (Vernon 2002). Like the negligence and premises liability claims brought by appellant, DTPA claims must be brought within two years "after the consumer discovered or in the exercise of reasonable diligence should have discovered the occurrence of the false, misleading, or deceptive act or practice." Id.; J.M. Krupar Const., 95 S.W.3d at 329.

Appellant's fraud cause of action is governed by section 16.004 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM.CODE ANN. § 16.004(a)(4) (Vernon 2002). Section 16.004(a)(4) provides that a suit for fraud must be brought within four years after the day the cause of action accrues. Id.; see Shannon v. Law-Yone, 950 S.W.2d 429, 433 (Tex.App.-Fort Worth 1997, pet. denied).

Proof of Affirmative Defense of Limitations

A defendant is entitled to summary judgment on the affirmative defense of limitations if, by presenting summary judgment evidence, he conclusively proves all the elements of the affirmative defense as a matter of law. Pustejovsky v. Rapid-American Corp., 35 S.W.3d 643, 646 (Tex.2000). This includes conclusively proving when the cause of action accrued. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). A cause of action generally accrues when an injury results from a wrongful act, regardless of when the plaintiff learns of his injury. Childs v. Haussecker, 974 S.W.2d 31, 36 (Tex.1998). However, in those rare cases when the nature of the injury is inherently undiscoverable and evidence of the injury is objectively verifiable, the courts have crafted the discovery rule as an exception to the general accrual rule. Id. at 36-37.

The discovery rule is a limited exception to a statute of limitations and applies only if the nature of the plaintiff's injury is both inherently undiscoverable and objectively verifiable. Computer Assocs. Int'l, Inc. v. Altai, Inc., 918 S.W.2d 453, 455 (Tex.1996). The discovery rule does not linger until a plaintiff learns of actual causes and possible cures for his injuries. PPG Indus., Inc. v. JMB/Houston Ctr. Ltd. P'ship., 146 S.W.3d 79, 93 (Tex.2004). Rather, the cause of action accrues when the plaintiff knows, or through the exercise of reasonable care and diligence should have discovered, the nature of his injury and the likelihood that it was caused by the wrongful acts of another. Childs, 974 S.W.2d at 40; see Wheeler v. Methodist Hosp., 95 S.W.3d 628, 636 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Accordingly, the discovery rule requires a plaintiff to seek information about his injuries and their likely cause once he is apprised of facts that would make a reasonably diligent person seek information. Childs, 974 S.W.2d at 47; see also Stewart Title Guar. Co. v. Becker, 930 S.W.2d 748, 756 (Tex.App.-Corpus Christi 1996, writ denied) (holding that because rule mandates reasonable diligence, tolling of limitations statute by discovery rule ends when party claiming benefits of rule acquires knowledge of facts, conditions, or circumstances that would cause reasonable person to make inquiry leading to discovery of concealed cause of action); Bell v. Showa Denko K.K., 899 S.W.2d 749, 754 (Tex.App.-Amarillo 1995, writ. denied) (same).

When a plaintiff discovers or should have discovered the cause of his injury and whether a particular plaintiff exercised due diligence in so discovering are questions of fact. See Childs, 974 S.W.2d at 44; Wheeler, 95 S.W.3d at 637. However, if reasonable minds could not differ about the conclusion to be drawn from the facts, the commencement of the limitations period may be determined as a matter of law. Childs, 974 S.W.2d at 44. If the plaintiff pleads the discovery rule as an exception to limitations, the defendant moving for summary judgment on limitations has the burden of negating the exception. Pustejovsky, 35 S.W.3d at 646. The plaintiff must adduce summary judgment evidence raising a fact issue in avoidance of limitations. Id.; J.M. Krupar Constr. Co. v. Rosenberg, 95 S.W.3d 322, 330 (Tex.App.-Houston [1st Dist.] 2002, no pet.) (stating that it is plaintiff's burden to plead and prove facts supporting discovery rule). The defendant must then negate the fact issue. Childs, 974 S.W.2d at 36. The defendant may do so by (1) showing that the discovery rule does not apply or (2) proving as a matter of law that there is no genuine issue of material fact about when the plaintiff discovered, or in the exercise of reasonable diligence should have discovered, the nature of his injury. Id.; Howard v. Fiesta Tex. Show Park, Inc., 980 S.W.2d 716, 719 (Tex.App.-San Antonio 1998, pet. denied) (citing ...