Foreman v. Pettit Unlimited, Inc.

886 S.W.2d 409, 1994 WL 481609
CourtCourt of Appeals of Texas
DecidedSeptember 19, 1994
Docket01-93-00109-CV
StatusPublished
Cited by9 cases

This text of 886 S.W.2d 409 (Foreman v. Pettit Unlimited, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Foreman v. Pettit Unlimited, Inc., 886 S.W.2d 409, 1994 WL 481609 (Tex. Ct. App. 1994).

Opinions

OPINION

OLIVER-PARROTT, Chief Justice.

This is an appeal from a summary judgment which the trial court granted on the basis that the statute of limitations barred the appellant’s cause of action. We affirm.

On July 13, 1989, a fire occurred in the home of Harold L. Foreman, appellant, destroying it and its contents. The fire began in a circuit breaker box in the appellant’s garage. On February 8, 1988, more than a year before the fire, Pettit Unlimited, Inc. (Pettit), appellee, serviced the same breaker box. Appellant filed suit against the appellee on May 21, 1992, more than two years after the fire.

In points of error one through six, Foreman claims the trial court erred in granting Pettit’s motion for summary judgment based on limitations because appellee did not meet its summary judgment burden. When reviewing the granting of a motion for summary judgment, we will consider all evidence favorable to the non-movant, Foreman, as true. MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex.1986). We will indulge every favorable inference in favor of the non-movant, and every reasonable doubt will be resolved in his favor. Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988). In a motion for summary judgment, the movant, Pettit, must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. MMP, Ltd., 710 S.W.2d at 60.

In its motion for summary judgment, Pettit asserted that Foreman’s claims were barred by the statute of limitations. When a defendant moves for summary judgment on the basis of limitations, it assumes the burden of showing as a matter of law that the suit was barred by limitations. Delgado v. Burns, 656 S.W.2d 428, 429 (Tex.1983); Rose v. Baker & Botts, 816 S.W.2d 805, 809 (Tex.App.—Houston [1st Dist.] 1991, writ denied). Further, a defendant seeking a summary judgment on the basis of limitations must prove when the cause of action accrued, and if applicable, must negate the discovery rule by proving as a matter of law that there is no genuine issue of fact about when the plaintiff discovered or should have discovered the nature of his injury. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex.1990).

Foreman contends that the trial court erred in granting Pettit’s motion for summary judgment because genuine issues of material fact exist about when Foreman discovered or should have discovered his injury. The pertinent dates are not disputed. Pettit performed electrical services at Foreman’s home on February 8, 1988. The fire occurred on July 13, 1989. If Foreman’s DTPA cause of action accrued on that date, the two-year statute of limitations expired on July 13,1991. Foreman brought suit against Pettit on May 21,1992, more than 10 months after the limitations had run. Thus, the issue is when did Foreman’s DTPA cause of action accrue. A cause of action under the Deceptive Trade Practices Act (DTPA) has a two-year statute of limitations.

All actions brought under this subehapter must be commenced within two years after the date on which the false, misleading, or deceptive act or practice occurred or 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.

Tex.Bus. & Com.Code Ann. § 17.565 (Vernon 1987).

The general rule is that a cause of action accrues when a wrongful act effects an injury, regardless of when the plaintiff learns of such injuries. Robinson v. Weaver, 550 S.W.2d 18, 19 (Tex.1977). In other words, limitations begin to run when the fact of injury is known. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). In this case, it is obvious that on the date of the fire, [412]*412Foreman knew of the injury to his home and its contents. Foreman did not know the identity of the responsible party.

Foreman claims that it is this lack of knowledge of the responsible party which delays the beginning of the limitations period until he discovered Pettit’s involvement with the cause of the fire. This is not how the discovery rule operates. When the discovery rule is applied, it tolls the running of the statute of limitations until the plaintiff discovers, or through the exercise of reasonable care and diligence should discover, the nature of his injury. Id.; Bowe v. GMC/Pontiac Div., 830 S.W.2d 775, 778 (Tex.App.—Houston [1st Dist.] 1992, writ denied) (emphasis added).

In Otis v. Scientific Atlantic, Inc., the court held that strikingly similar facts did not avail themselves to the discovery rule:

Plaintiffs’ argument, and pleading in their response, is that they did not know the identity of the party responsible for the cause of their injury. Plaintiffs do not assert that they did not know of the injury and they do not assert that they did not know of, or could not have discovered with the exercise of reasonable diligence, the cause of their injury. Plaintiffs knew on the date of the fire that they had been injured. Since plaintiffs discovered their injury on the date of the fire, limitations began to run on that date.

Otis v. Scientific Atlantic, Inc., 612 S.W.2d 665, 666 (Tex.Civ.App.—Dallas 1981, writ ref'd n.r.e.).

The discovery rule has been limited to matters properly characterized as inherently undiscoverable. Rose v. Baker & Botts, 816 S.W.2d 805, 810 (Tex.App.Houston [1st Dist.] 1991, writ denied). Recent cases have consistently held conceptually the discovery rules applies to those cases wherein the injured party did not know and could not know of the injury on the day it occurred. Bayou Bend Towers Council of Co-Owners v. Manhatten Constr. Co., 866 S.W.2d 740 (Tex.App.—Houston [14th Dist.] 1993, writ requested) (condominium owners barred because the injury, major leaks, was discovered more than two years prior to suit); Dallas Market Center Hotel Co. v. Beran & Shelmire, 865 S.W.2d 145 (Tex.App.—Corpus Christi, 1993, writ denied) (fact issue existed on when injury was discovered when there were previous minor leakage problems, but the injury was defective exterior structural masonry). See also Allen v. Roddis Lumber and Veneer Co., 796 S.W.2d 758

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Foreman v. Pettit Unlimited, Inc.
886 S.W.2d 409 (Court of Appeals of Texas, 1994)

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886 S.W.2d 409, 1994 WL 481609, Counsel Stack Legal Research, https://law.counselstack.com/opinion/foreman-v-pettit-unlimited-inc-texapp-1994.