Riojas v. Phillips Properties, Inc.

• Decision Date: 12 June 1991
• Docket Number: No. 13-90-452-CV,13-90-452-CV
• Citation: 828 S.W.2d 18
• Parties: Melissa Donna Corns RIOJAS and Leila Bell Alaniz, Appellant, v. PHILLIPS PROPERTIES, INC., Appellee.
• Court: Texas Court of Appeals

Page 18

828 S.W.2d 18

Melissa Donna Corns RIOJAS and Leila Bell Alaniz, Appellant, v. PHILLIPS PROPERTIES, INC., Appellee.

No. 13-90-452-CV.

Court of Appeals of Texas,

Corpus Christi.

June 12, 1991.

Rehearing Overruled Feb. 20, 1992.

Dissenting Opinion of Justice Hinojosa Feb. 20, 1992.

Martin E. Morris, Katie Pearson Klein, Dale & Klein, Pharr, Sidney R. Meadows, Freeland & Meadows, McAllen, Roy S. Dale, Cynthia M. Villavueva, Dale & Klein, Pharr, for appellant.

Leo C. Salzman, Adams & Graham, Charlie J. Cilfone, Susan Allen, Roger W. Hughes, Adams & Graham, Harlingen, for appellee.

Before NYE, C.J., and DORSEY and GILBERTO HINOJOSA, JJ.

OPINION

NYE, Chief Justice.

This is an appeal from a dram-shop type suit which arose from an automobile collision in which appellants, Melissa Riojas and Leila Alaniz, were injured when their vehicle was allegedly struck by a vehicle driven by Rolando Garcia. Appellants sued appellee, Phillips Properties, Inc., the business where Garcia allegedly purchased alcohol prior to the collision. The trial court granted summary judgments favorable to Phillips based on limitations and no cause of action. Appellants appeal by four points of error. We affirm in part and reverse and remand in part.

The pleadings and evidence show that on or about April 14, 1986, Melissa Riojas (a 16-year-old girl at the time of the accident) was operating an automobile on North Sugar Road near Pharr, Texas. Her mother, Leila Alaniz, was a passenger. While Riojas was turning left at an intersection, Rolando Garcia's vehicle struck their vehicle from the rear, causing injuries to Riojas and Alaniz. They asserted that Garcia was negligent in operating his vehicle while under the influence of alcohol. They filed suit against Garcia about a year and a half after the accident (September 22, 1987). The appellants asserted that they did not discover that the causation for the collision extended from Garcia to Phillips until they took Garcia's deposition on May 24, 1988 (about 25 months after the accident). On that date, they learned that Garcia may have been or was intoxicated at the time of the collision and that immediately before the accident, Garcia, while under the influence of alcohol, purchased alcohol from "The Drive Thru," a business operated by Phillips. The appellants asserted that they used reasonable diligence in making this discovery. They filed an amended petition against Phillips 2 years and 3 months after the accident (July 27, 1988). Appellants asserted that limitations was tolled from April 14, 1986 (the collision date), to May 24, 1988, the date of Garcia's deposition because they did not know of appellee's connection to the accident until that later date.

Phillips in its motion for summary judgment alleged that the Texas Civil Practice & Remedies Code § 16.003(a) barred the suit and that the appellants did not allege a claim for which relief could be granted because they did not affirmatively indicate compliance with the limitations statute. In their response, the appellants argue that limitations was tolled until May 24, 1988, the date on which they discovered that Phillips' actions constituted a proximate cause of the collision which caused their damages. The appellants contend that they exercised reasonable and due diligence in attempting to discover Phillips' existence and identity. Before taking Garcia's deposition, they could not discover and had no reason to believe that Phillips had a causal connection to their damages. In addition, appellants further responded that Melissa Riojas did not turn eighteen until April 17, 1987, and that limitations was tolled in her favor until April 18, 1989. The trial court granted Phillips' first motion for summary judgment only against Leila Alaniz.

Phillips in its second motion for summary judgment alleged that Melissa Riojas did not state a cause of action because she alleged a dram-shop violation. Her injuries occurred on April 14, 1986, well before a dram-shop cause of action was recognized in Texas. The legislature enacted § 2.02 of the Texas Alcoholic Beverage Code, ¹ which recognized dram-shop violations. Riojas' response alleges that Texas courts, prior to the enactment of § 2.02, recognized that an alcoholic beverage licensee owed a duty to the public not to serve alcohol to a person when the licensee knew or should have known that the person was intoxicated. The trial court granted summary judgment against Melissa Riojas.

In reviewing a summary judgment record, this court must determine whether a disputed material fact issue exists that would preclude a summary judgment. Gonzalez v. Mission American Insurance Co., 795 S.W.2d 734, 736 (Tex.1990); Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex.1984). Every reasonable inference must be indulged in the non-movants' favor, and any doubt resolved in their favor. Wilcox v. St. Mary's University, 531 S.W.2d 589, 593 (Tex.1975). The question on appeal is not whether the summary judgment proof raises a fact issue with reference to the essential elements of the plaintiff's cause of action, but whether the summary judgment proof establishes that the movant is entitled to summary judgment as a matter of law. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970); Tucker v. Atlantic Richfield Co., 787 S.W.2d 555, 557 (Tex.App.--Corpus Christi 1990, writ denied).

By points one and two, Leila Alaniz complains that the trial court erred in granting summary judgment against her because of the discovery rule and because Phillips did not prove that she and Melissa Riojas did not use reasonable care and diligence in discovering the cause of their injuries.

The primary purpose of limitations statutes is to compel the exercise of a right of action within a reasonable time so that the opposing party has a fair opportunity to defend while witnesses are available and the evidence is fresh in their minds. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988). For a suit to be timely under the two-year statute, it must be commenced within two years following the date the cause of action accrues. Tex.Civ.Prac. & Rem.Code Ann. § 16.003(a) (Vernon 1986). For the purposes of application of limitations statutes, a cause of action generally accrues at the time when facts come into existence which authorize a claimant to seek a judicial remedy. Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex.1990). In personal injury actions, this means when the wrongful act effects an injury, regardless of when the claimant learned of the injury. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977). An exception to this rule of accrual has been applied in some situations in which a claimant was unable to know of his injury at the time of actual accrual; the exception is known as the "discovery rule." Robinson, 550 S.W.2d at 19.

The appellants urge this court to adopt the discovery rule in this case. The discovery rule is a judicially constructed test used to determine when a plaintiff's cause of action accrued. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990); Weaver v. Witt, 561 S.W.2d 792, 794 (Tex.1977). When applied, the rule operates to toll the running of the limitations period until the time that the claimant discovers, or through the exercise of reasonable care and diligence should discover, the nature of the injury. Moreno, 787 S.W.2d at 351; Weaver, 561 S.W.2d at 793-94.

The supreme court in Moreno has applied the discovery rule to a limited number of cases, including medical malpractice cases, in which the plaintiff did not and could not know of the injury at the time it occurred. ² In Robinson, the supreme court stated:

Statutes of limitations are not directed to the merits of any individual case, they are a result of the legislative assessment of the merits of cases in general. The fact that a meritorious claim might thereby be rendered nonassertible is an unfortunate occasional by-product of the operation of limitations. All statutes of limitations provide some time period during which the cause of action is assertible. However, preclusion of a legal remedy alone is not enough to justify a judicial exception to the statute. The primary purpose of limitations, to prevent litigation of stale or fraudulent claims, must be kept in mind.

Robinson, 550 S.W.2d at 20.

The facts of this case do not square with the limited exceptions to the general rule of accrual created by the supreme court. This is not a case in which Leila Alaniz did not and could not know of her injuries at the time they occurred (she waited 25 months before taking the deposition of the principal actor when she said she discovered the cause of action against appellee). The discovery rule does not apply in such cases. The general limitations rule does apply. To recapitulate: Alaniz knew on the date of the collision (April 14, 1986) that she had been injured. On that date, the stage was set for the adjudication of legal liability. Limitations appropriately commenced to run from the time of the allegedly wrongful conduct, which coincided with the injury and its discovery. It is a well-settled rule that additional defendants in a tort action brought in by amendment when the statute of limitations has run in their favor may plead the statute notwithstanding the action against the original defendant was commenced within the limitations period. Annot. 8 A.L.R.2d 120 (1949). Due diligence is not an issue in this case because the discovery rule does not apply.

The appellants contend that the open courts provision of the Texas Constitution prevents limitations from barring their suit against Phillips. This argument was not presented to the trial court before it granted the summary judgments. Constitutional challenges not expressly presented to the trial court by written motion, answer or other response will not be considered by the appellate courts as grounds for reversal. City of San Antonio v. Schautteet, 706 S.W.2d...