Riojas v. Phillips Properties, Inc.

828 S.W.2d 18, 1991 WL 101737

• Court: Court of Appeals of Texas
• Decided: February 20, 1992
• Docket: 13-90-452-CV
• Status: Published

Opinions

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 1 ff-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 Rio-jas 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 plaintiffs 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 unfor-túnate, 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 103, 104 (Tex.1986); Sanchez v. Memorial Medical Center Hospital, 769 S.W.2d 656, 660 (Tex.App.—Corpus Christi 1989, no writ). We therefore hold that since Alaniz did not file suit against Phillips until July 27, 1988, the two-year limitations statute barred her suit against Phillips.

Although Melissa’s cause of action was tolled until she was 18 years old, by point three, Melissa Riojas complains that the trial court erred in granting summary judgment based on no dram shop cause of action. In El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987), two wrongful death and survival actions (both accruing in 1984) were submitted together to determine whether a person injured by an intoxicated driver could recover from the alcoholic beverage licensee who allegedly sold intoxicants to the intoxicated driver in violation of the Texas Alcoholic Beverage Code. The supreme court ruled that a licensee could be held liable for serving alcoholic beverages to persons who were already intoxicated. The court based this liability on a breach of a duty defined by both general common-law principles and the violation of § 101.63(a) of the Texas Alcoholic Beverage Code.³

Phillips argues that El Chico should not be applied retrospectively. The general rule is that a decision of the supreme court is retrospective in operation. Burns v. Thomas, 786 S.W.2d 266, 267 n. 1 (Tex.1990); Sanchez v. Schindler, 651 S.W.2d 249, 254 (Tex.1983). Exceptions are recognized when considerations of fairness and policy preclude full retroactivity. Sanchez, 651 S.W.2d at 254. Resolution of the issue hinges primarily on the extent of public reliance on the former rule and the ability to foresee a coming change in the law. Sanchez, 651 S.W.2d at 254. See In re S/S Helena, 529 F.2d 744, 754 (5th Cir.1976); City of Farmers Branch v. Matsushita Electric Corp., 537 S.W.2d 452, (Tex.1976). Before El Chico, Texas followed the common-law rule that a purveyor of alcoholic beverages was not liable for damages sustained by third persons resulting from a patron’s intoxication. In abolishing the rule of non-liability, the El Chico court noted that of fifty American jurisdictions (including the District of Columbia and excluding Texas), a civil cause of action existed in forty-one jurisdictions with a substantial majority basing the cause of action upon the common-law principles of negligence, negligence per se, or both. In dram-shop cases, it seems very unlikely that the negligent purveyor of alcoholic beverages would be influenced by the old common-law rule of non-liability and that he could not foresee a change in the law on the horizon. We sustain the point of error. Due to our disposition of point three, we need not address the merits of point four. Tex.R.App.P. 90(a).

We AFFIRM the summary judgment against Leila Alaniz. We REVERSE the summary judgment against Melissa Riojas and REMAND that part of the cause of action to the trial court for trial.

1 . Tex.Alco.Bev.Code Ann. § 2.02 (Vernon Supp. 1991) provides, in pertinent part:

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(b) Providing, selling, or serving an alcoholic beverage may be made the basis of a statutory cause of action under this chapter and may be made the basis of a revocation proceeding under Section 6.01(b) of this code upon proof that:

(1) at the time the provision occurred it was apparent to the provider that the individual being sold, served, or provided with an alcoholic beverage was obviously intoxicated to the extent that he presented a clear danger to himself and others; and

(2) the intoxication of the recipient of the alcoholic beverage was a proximate cause of the damages suffered.

Section 2.03 establishes that the liability of providers under sections 2.01-2.03 for actions of their intoxicated customers is in lieu of the common law or other statutory duties imposed on alcoholic beverage providers. Chapter 2 of the Alcoholic Beverage Code, enacted June 1, 1987, did not govern actions arising before its effective date of June 11, 1987, and thus did not control the disposition of El Chico Corp. v. Poole, 732 S.W.2d 306 (Tex.1987). 1987 Tex.Gen.Laws, ch. 303, § 9 at 1675.

2 . See e.g., Willis v. Maverick, 760 S.W.2d 642, 645 (Tex.1988) (Limitations for legal malpractice actions does not begin to run until the claimant discovers or should have discovered through the exercise of reasonable care and diligence the facts establishing the elements of his cause of action.); Bayouth v. Lion Oil Co., 671 S.W.2d 867, 868 (Tex.1984) (An action for permanent damages to land accrues upon the discovery of the first actionable injury and not on the date when the extent of the damages to the land are fully ascertainable.); Kelley v. Rinkle, 532 S.W.2d 947, 949 (Tex.1976) (Limitations for libel on one’s credit reputation by publication of a defamatory report to a credit agency begins to run when the person defamed learns of, or should by reasonable diligence have Iearned of, the existence of the credit report.); Hays v. Hall, 488 S.W.2d 412, 414 (Tex.1972) (An action for negligent performance of a vasectomy accrues when the plaintiff discovers or should have discovered that he remains fertile); Gaddis v. Smith, 417 S.W.2d 577, 580 (Tex.1967) (A negligence action against a physician for leaving a sponge in a patient's body accrues when the patient learns of, or in the exercise of reasonable care and diligence, should have learned of the sponge’s presence.); Quinn v. Press, 135 Tex. 60, 140 S.W.2d 438, 440 (1940) (Limitations for fraud begins to run from the time the fraud is discovered, or could have been discovered by the defrauded party by the exercise of reasonable diligence.).

3 . Pursuant to Tex.Alco.Bev.Code Ann. § 101.-63(a) (Vernon 1978), "A person commits an offense if he knowingly sells an alcoholic beverage to an habitual drunkard or an intoxicated or insane person.”