Eddie Tyler v. Senior Warden O. Perez

• Court: Court of Appeals of Texas
• Decided: April 29, 2004
• Docket: 14-03-00165-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 29, 2004

Affirmed and Memorandum Opinion filed April 29, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-00165-CV

EDDIE TYLER, Appellant

V.

SENIOR WARDEN O. PEREZ, Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 02-29340

M E M O R A N D U M   O P I N I O N

Eddie Tyler appeals the summary judgment granted in favor of Senior Warden O. Perez.  By one point of error, Tyler contends the statute of limitations does not bar his lawsuit for personal injuries.  We affirm the judgment of the trial court.

Factual and Procedural Background

Appellant complains of injuries he allegedly suffered on or about November 5, 1998, while working in the kitchen at the McConnell Unit of the Texas Department of Criminal

Justice, Institutional Division.  Appellant filed a lawsuit on May 17, 2000 alleging appellee was negligent by failing to replace faulty seals on cooking pots in violation of the prison=s safety code.  This lawsuit was dismissed for want of prosecution on October 5, 2001. 

Appellant filed a second lawsuit on June 10, 2002 for the same injuries that occurred on November 5, 1998 and based on the same alleged negligence by appellee.  Appellee filed an answer on August 14, 2002 and contemporaneously filed a motion for summary judgment alleging appellant=s claims were barred by limitations.  On January 10, 2003, the trial court granted appellee=s motion for summary judgment and dismissed appellant=s lawsuit with prejudice.  Appellant filed a response to appellee=s summary judgment; the response, however, was not filed until January 23, 2003, thirteen days after the trial court ruled on the motion.  Appellant=s sole issue on appeal is whether his claims are barred by limitations.

Discussion

 We review the trial court=s grant of summary judgment to determine whether the movant satisfied his burden to establish there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c); Nixon v. Mr. Property Mgmt. Co. Inc., 690 S.W.2d 546, 548B49 (Tex. 1985).  In a summary judgment proceeding, the burden of proof is on the movant, and all doubts about the existence of a genuine issue of material fact are resolved in favor of the non-movant.  Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex. 1984); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).  When the defendant moves for summary judgment on an affirmative defense, his burden is to prove as a matter of law all the elements of that defense; thus, a defendant seeking summary judgment based on limitations must prove when the cause of action accrued and, if pleaded by the non-movant, must negate the applicability of the discovery rule.  Clear Creek Basin Auth., 598 S.W.2d at 678; Seibert v. General Motors Corp., 853 S.W.2d 773, 775 (Tex. App.CHouston [14th Dist.] 1993, no writ).

A plaintiff=s pleadings generally are not competent summary judgment evidence; however, they may form the basis of summary judgment when the defendant asserts limitations as an affirmative defense.  Cronen v. City of Pasadena, 835 S.W.2d 206, 210 (Tex. App.CHouston [1st Dist.] 1992, no writ), overruled on other grounds by Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994).  When, as in this case, summary judgment is based solely on plaintiff=s petition, we must accept each allegation in the petition as true.  Am. Nat=l Ins. Co. v. Int=l Bus. Mach. Corp., 933 S.W.2d 685, 686 (Tex. App.CSan Antonio 1996, writ denied); Cronen, 835 S.W.2d at 210.  A party may plead itself out of court by pleading facts that affirmatively negate its cause of action.  Trail Enters., Inc. v. City of Houston, 957 S.W.2d 625, 632 (Tex. App.CHouston [14th Dist.] 1997, pet. denied).  If the pleading on its face conclusively shows the moving party is entitled to summary judgment based on limitations, the motion will be granted.  Cronen, 835 S.W.2d at 210.   

The statute of limitations for a personal injury cause of action is two years from the day the cause of action accrues.  Tex. Civ. Prac. & Rem. Code ' 16.003 (Vernon 2002).  Generally, a cause of action accrues when the wrongful act effects an injury.  Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990).  In this case, accepting appellant=s pleadings as true,^[1] the alleged wrongful act which caused appellant=s injuries occurred on November 5, 1998; therefore, appellant was required to file his cause of action no later than November 5, 2000.  Accordingly, his lawsuit filed on June 10, 2002 is untimely because it was filed after limitations expired. 

On appeal, appellant argues application of the discovery rule tolls limitations because appellee concealed relevant information relating to the cause of his injuries.  Appellant=s argument fails, however, because in order to claim application of the discovery rule, appellant was required to affirmatively plead its application in his petition.  Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1989); Snell v. Sepulveda, 75 S.W.3d 142, 144 (Tex. App.CSan Antonio 2002, no pet.).  Because appellant failed to plead application of the discovery rule, this argument is waived.  Woods, 769 S.W.2d at 518. 

We overrule appellant=s sole issue on appeal and hold appellant=s cause of action is barred by limitations.  Accordingly, we affirm the judgment of the trial court.

/s/      John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed April 29, 2004.

Panel consists of Justices Yates, Anderson, and Hudson.

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^[1]  Additionally, appellant, in his petition, declared under penalty of perjury that the facts alleged therein were true and correct.  Pursuant to Chapter 132 of the Texas Civil Practice and Remedies Code, this declaration may be used in lieu of a written sworn declaration, verification, certification, oath, or an affidavit.  Tex. Civ. Prac. & Rem. Code Ann. '' 132.001B.003 (Vernon 1997).