Jeffrey Balawajder, John Gardner, and Ronald Blanco v. Gary Johnson, Wayne Scott, Texas Department of Criminal Justice Institutional Division, State of Texas and Smith Corona Corporation

Affirmed and Memorandum Opinion filed January 13, 2004 Affirmed and Memorandum Opinion filed January 13, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-02-00742-CV ____________ JEFFREY BALAWAJDER, JOHN GARDNER, and RONALD BLANCO, Appellants V. GARY JOHNSON, WAYNE SCOTT, TEXAS DEPARTMENT OF CRIMINAL JUSTICE INSTITUTIONAL DIVISION, STATE OF TEXAS, and SMITH CORONA CORPORATION, Appellees On Appeal from the 278th Judicial District Walker County, Texas Trial Court Cause No. 20,711-C M E M O R A N D U M   O P I N I O N Appellants, Balawajder, Gardner, and Blanco, are inmates of the Texas Department of Criminal Justice Institutional Division (ATDCJID@). In 1996, the TDCJID issued an inter-office communication prohibiting the repair of word processors with memory capabilities. Appellants filed a petition alleging seventeen causes of action against the TDCJID, two employees of the TDCJID, and the Smith Corona Corporation. The trial court granted appellees= motion for summary judgment. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Appellants each purchased a Smith Corona memory word processor to use while incarcerated. Because many of these word processors required repair, the TDCJID issued an inter-office communication effective February 1, 1996. The communication informed the inmates that the TDCJID would cease selling these specific word processors. Not only would the TDCJID no longer sell memory word processors, but also if an inmate owned one that required repair, the inmate must choose to send the word processor home at his or her own expense or to have it destroyed by the TDCJID. In 1999, when appellants needed their memory word processors repaired, the TDCJID refused to grant permission and reminded appellants of the inter-office communication. Appellants then brought seventeen different causes of action against the TDCJID, Smith Corona, and two employees of the TDCJID.[1] The defendants moved for summary judgment, and the trial court granted their motion. DISCUSSION Appellants raise eighteen issues on appeal.[2] First, appellants argue that the trial court failed to specify a date for the summary judgment motion. Second, appellants argue the trial court improperly granted the summary judgment motion for four reasons. Next, combined in numerous issues, appellants argue the trial court improperly granted summary judgment on specific tort claims. Appellants also raise two sets of fraud claims, and argue they raised a factual dispute regarding the Magnusson-Moss Warranty Act. Finally, appellants complain the trial court erred in granting summary judgment on their two 42 U.S.C. ' 1983 claims. I. Summary Judgment Hearing Date First, appellants argue the trial court erred by failing to specify a date for the summary judgment hearing. The Texas Supreme Court has held that a trial court must give notice of the submission date for a summary judgment motion, because this date determines the nonmovant=s response date. Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998). As we set out below, the trial court gave a specific date for the summary judgment hearing. Appellants requested the hearing on the summary judgment evidence to be held on the same date as the hearing on discovery motions. Due to the extended time the case had been pending, the trial court tried to accommodate appellants by both accelerating the case, yet giving appellants adequate time to prepare. Appellants were to have a response prepared by February 15, 2001. The trial court then gave appellants more time and allowed them to choose between the 22nd of February or the 1st of March for the submission and hearing date. One appellant stated he would Arather have the 1st of March@ for the hearing date. The trial court agreed to the extension and even stated Aif you=re running a day or two late, I won=t start until I get something from you; how is that?@ Appellees then filed their summary judgment motion on February 28, 2001. So, on March 15, 2001, appellants filed a partial response and asked for a continuance on the summary judgment hearing, and then supplemented their response on March 21, 2001. The trial court heard the summary judgment motion on March 23, 2001, and it entered the order granting appellees= motion on April 12, 2001. Here, the trial court clearly set the hearing date on the motion for summary judgment on March 1, 2001. In fact, the trial court did not consider the motion and the responses until March 23, 2001, and did not rule until April. This gave the trial court ample opportunity to consider all of appellants= responses before making its ruling. Furthermore, appellants have not shown this Court any harm even if the trial court did not give adequate notice of the hearing. See Martin, 989 S.W.2d at 359. Had there been a lack of notice, the trial court rendered the error harmless by considering all of appellants= responses to the summary judgment. We overrule appellants= first issue. II. Granting the Summary Judgment Next, appellants argue the trial court improperly granted summary judgment regarding four of their claims. Appellants argue theyraised a genuine issue of material fact regarding (1) retroactive law, (2) impairment of contracts, (3) deprivation of property, and (4) curtailment of the press. Summary judgment is proper only when the movant has established no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). When a summary judgment order does not specify what grounds the trial court relied upon for its ruling, this Court will affirm the summary judgment if any one of the theories advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). Appellees correctly argue no genuine issue of material fact exists, and the trial court properly granted summary judgment. First, appellants argue the inter-office communication is a retroactive law that violates the Texas and United States Constitutions. An essential element of a retroactive law is that it takes away or impairs a vested right acquired under law. Houston Indep. Sch. Dist. v. Houston Chronicle Publ=g. Co., 798 S.W.2d 580, 589 (Tex. App.CHouston [1st Dist.] 1990, writ denied); Ex parte Kubas, 83 S.W.3d 366, 369B70 (Tex. App.CCorpus Christi 2002, pet. ref=d). Here, appellants do not have a vested right protected by law to a word processor. A[D]ue process requires that prisoners have access to paper, pens, notarial services, stamps, and adequate library facilities[;] . . . there is >. . . no constitutional right to a typewriter as an incident to the right of access to the courts.=@ Taylor v. Coughlin, 29 F.3d 39, 40 (2nd Cir. 1994). The Taylor court went on to add that, because prisoners do not enjoy a constitutional right to typewriters, it would be illogical for prisoners to have a constitutional right to typewriters with a memory capacity. Id. Because appellants do not have a vested right to a typewriter, appellants were not affected by a retroactive law.[3] The trial court correctly granted appellees= summary judgment motion regarding this issue. Second, appellants argue the inter-office communication impaired the obligations of contract between appellants and appellees. AAn obligation is impaired when a statute is enacted that releases a part of this obligation or to any extent or degree amounts to a material change or modifies it.@ Price Pfister, Inc. v. Moore & Kimmey, Inc., 48 S.W.3d 341, 356 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). Appellants did not raise any genuine issue of material fact that the TDCJID altered any existing contract between appellants and appellees. The inter-office communication, which was not implemented by legislation, did not interfere with the underlying requirements of any contract. Appellants were still required to fully pay for the word processor, and Smith Corona was still obligated to uphold any applicable warranties. Appellants have not shown the inter-office communication impaired any contractual obligations. Third, appellants argue the inter-office communication deprived them of a constitutionally protected property interest without due process of law. A protected property interest is defined as an Aindividual entitlement grounded in state law, which cannot be removed except for cause.@ Jackson v. Houston Indep. Sch. Dist., 994 S.W.2d 396, 399 (Tex. App.CHouston [14th Dist.] 1999, no writ). We previously explained that appellants do not have a right to a word processor under state law. Therefore, the trial court did not err in granting appellees= summary judgment motion on this issue. Finally, appellants claim the inter-office communication violated their right to freedom of the press. However, appellants presented no genuine issue of material fact on this point. The TDCJID did not censor, nor threaten to censor, the content of communications made by appellants. See Sands v. Lewis, 886 F.2d 1166, 1172 (9th Cir. 1989) (addressing this exact issue of whether confiscation of memory typewriters violates an inmate=s first amendment rights). Appellants have the opportunity to use or to purchase other word processors, and appellants can always submit motions or documents to the court by hand. Therefore, the trial court did not err in granting appellees= motion for summary judgment on these four issues. III. Statute of Limitations Next, appellants complain that the trail court improperly granted appellees= motion for summary judgment on twelve causes of action contained in their original petition. Appellees argue these causes of action were barred by statute of limitations. We agree, and uphold the trial court=s granting of the motion for summary judgment. Defendants seeking summary judgment on the ground of statute of limitations must (1) prove when the cause of action accrued and (2) negate the discovery rule by proving, as a matter of law, no genuine issue of fact exists when the plaintiff discovered or should have discovered the nature of the injury. Burns v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990). Fields v. City of Tex. City, 864 S.W.2d 66, 68B69 (Tex. App.CHouston [14th Dist.] 1993, writ denied). After the defendant establishes that the statute of limitations bars the action as a matter of law, the plaintiffs, to avoid the statute of limitations, must then establish summary judgment proof that raises a fact issue. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). The general rule is that a cause of action accrues when a wrongful act causes some legal injury, even when the fact of injury is not discovered until later, and even if all of the resulting damages have not yet occurred. S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996). The Alegal injury@ rule helps determine when a cause of action accrues in a case in which the defendant=s conduct and the plaintiff=s injury are separated in time. See Houston Water-Works Co. v. Kennedy, 70 Tex. 233, 8 S.W. 36 (1888). AThe central idea of the rule is that the plaintiff=s cause of action accrues when the defendant=s conduct first becomes >unlawful= as to the plaintiff under the law applicable to the circumstances of the case.@ Zidell v. Bird, 692 S.W.2d 550, 554 (Tex. App.CDallas 1985, no writ). Appellees assert the accrual date triggering the statute of limitations was February 1, 1996.[4] On that date, the TDCJID implemented an inter-office communication stating that word processors with memory capabilities would no longer be available in the commissaries. The communication further stated that Aas those machines break down they will no longer be repaired and it will be up to the inmate/confinee as to whether the equipment is sent home at his/her expense or destroyed.@ Appellants argue the appropriate accrual date was Ain 1999," when the TDCJID denied appellants the opportunity to have their memory word processors repaired. Appellants filed their petition in January 25, 2000. The accrual date for appellants= claims was February 1, 1996. On that date, appellants first had notice that any rights they may have had were in jeopardy, and on that date, the statute of limitations began running for their claims. See id. at 556. Assuming that appellants= claims were legally protected property interestsCwhich we have not heldCtheir interests were exposed to a specific and concrete risk of harm when the TDCJID issued the inter-office communication. The inevitable consequence of the conduct occurred in 1999 when the TDCJID implemented the inter-office communication against appellants and refused appellants the privilege of having their word processors repaired. See id. Appellants raise many claims that have a two-year statute of limitations: tortious interference with a contract; breach of implied contract; negligence; and misrepresentation, confusion and failure to disclose, and express and implied warranties under the Deceptive Trade Practices Act. Tex. Civ. Prac. & Rem. Code ' 16.003; Tex. Bus. & Com. Code ' 17.565. All of these claims accrued at the time of injury, February 1, 1996, and are now barred by the statute of limitations. The trial court did not err when granting appellees= summary judgment motion on these two-year claims. Appellants also filed some claims that have a four-year statute of limitations. Against Smith Corona they brought breach of implied warranty of a particular purpose, breach of implied warranty of merchantability, and breach of express warranty claims. Tex. Bus. & Com. Code ' 2.725(a). Appellants also brought a breach of warranty claim against the TDCJID. The limitations period for all breach of warranty claims under the Texas Uniform Commercial Code is four years. Id. (stating A[a]n action for breach of any contract for sale must be commenced within four years after the cause of action has accrued@). Regarding breach of warranty claims, the statute of limitations begins to run when the item in question is delivered. Id. ' 2.725(b). Here, Balawajder received his word processor in 1995, Gardner in 1993, and Blanco in 1994. Since the breach of warranty claims stem from the date appellants received their word processors, the statute of limitations had expired by the time each appellant filed their claim in 2000. The latest one of the appellants could have made a claim was in 1999 by Balawajder. The trial court did not err in granting the summary judgment motion regarding these claims. IV. Fraud Claims Combined in their tort claims issues, appellants complain Smith Corona and the TDCJID committed fraud against appellants. Appellants allege that Smith Corona concealed the fact it was going to cease manufacturing the memory word processors and that the TDCJID concealed the fact it intended to prohibit the use of memory word processors. Generally, a fraud action is deception as to an existing fact. Southwestern Bell Tel. Co. v. Meader Constr. Co., 574 S.W.2d 839, 843 (Tex. Civ. App.CEl Paso 1978, writ ref=d n.r.e.). The elements of fraud include the following: (1) a material representation, (2) that is false, (3) that the speaker knew was false when made, (4) that he made with the intention that it be acted upon by the other party (5) that the party acted in reliance on it, and (6) damages. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992). Appellants have not shown a genuine issue of material fact regarding any of these six elements. Besides blatant conjectures and blind supposition, appellants have not pointed to specific statements by Smith Corona or the TDCJID that indicate fraud. We overrule appellants= two issues, and uphold the summary judgment motion. IV. Magnusson-Moss Warranty Act Next, appellants raise a Magnusson-Moss Warranty claim against Smith Corona. This federal act generally applies to written warranties covering consumer products, with the purpose of protecting consumer=s rights regarding warranty regulations. See 15 U.S.C.A. ' 2301 (1998); In re Van Blarcum, 19 S.W.3d 484, 493 (Tex. App.CCorpus Christi 2000, pet. denied). Appellants did not present any evidence that Smith Corona failed or refused to provide warranty service to appellants during the applicable warranty period. Therefore, the trial court did not err in granting appellees= summary judgment motion, and we overrule appellants= issue. V. 42 U.S.C. ' 1983 Claims Finally, appellants raised 42 U.S.C. ' 1983 (1994 & Supp. 2003) claims against two employees of the TDCJID. Section 1983 provides a remedy when any person acting under color of state law deprives another of rights, privileges, or immunities protected by the United States Constitution. 42 U.S.C. ' 1983. The trial court granted appellees= motion for summary judgment on these two claims as well. A trial court Amust first determine whether plaintiff has been deprived of right, privilege, or immunity protected by federal law.@ Thomas v. Collins, 960 S.W.2d 106, 109 (Tex. App.CHouston [1st. Dist.] 1997, writ denied). Second, if this inquiry is answered in the affirmative, the court then determines whether the Adefendant is responsible for that violation.@ Id. Finally, the court will consider whether the defendant is entitled to immunity. Id. Here, appellants did not meet the first prong of the test. See id. Appellants could not show that they were deprived of a right protected by federal law. As we previously stated, Adue process requires that prisoners have access to paper, pens, notarial services, stamps, and adequate library facilities, . . . there is >. . . no constitutional right to a typewriter as an incident to the right of access to the courts.=@ Taylor, 29 F.3d at 40. Therefore, because appellants could not establish they were deprived of a particular right, they could not establish a section 1983 claim. The trial court did not err in granting appellees= motion for summary judgment on these last two issues. In conclusion, we overrule all of appellants= issues and affirm the trial court=s granting of the summary judgment. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion January 13, 2004. Panel consists of Chief Justice Hedges and Justices Fowler and Edelman. [1] We note that appellants= briefs, as well as all other documents and motions to the trial court, are typed, showing appellants did have access to a typewriterCthough possibly one lacking memory capability. [2] Appellants= brief only includes two issues that were further broken down into eighteen separate points. [3] We do not address whether the inter-office communication is a law or a statute, which also is required for a retroactive law. [4] The TDCJID distributed the inter-office communication on January 23, 1996, but it was not effective until the first of February.