Joyce A. Butler v. Lowe's Home Center, Inc.

Affirmed and Memorandum Opinion filed May 3, 2011. In The Fourteenth Court of Appeals NO. 14-10-00297-CV Joyce A. Butler, Appellant V. Lowe’s Home CenterS, Inc., Appellee On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 2009-52835A MEMORANDUM  OPINION Joyce A. Butler sued Lowe’s Home Centers, Inc. seeking damages and declaratory and injunctive relief after a fence was installed on Butler’s real property without her permission. Butler appeals the trial court’s summary judgment in favor of Lowe’s. We affirm. BACKGROUND Butler and her neighbors, the McClains, share a property boundary. Butler alleges that the McClains purchased fence materials from Lowe’s, which recommended a contractor, Aries Fence Company. Aries installed the fence on Butler’s side of the property boundary without her permission on February 23, 2007. Butler alleges that the fence trespasses on her property and a 16-foot utility easement between the two properties. Butler sued the McClains, Lowe’s, and Aries Fence company for (1) damages caused by the failure to flag underground utilities in the easement to prevent damage to the utility lines; and (2) fees and charges associated with limited access to the utility equipment. She complains that the fence installation caused a strip of trees, seedlings, and landscaping material to be removed from her property, and alleges that the “trespass and encroachment” has caused her pain and suffering.[1] Butler also requested declaratory relief and an injunction to force the McClains to remove the fence. Lowe’s filed a motion for summary judgment, arguing that Butler’s claims against it are barred by limitations. Butler failed to respond to the motion, and the trial court granted summary judgment in favor of Lowe’s on January 15, 2010. Lowe’s filed a motion to sever Butler’s claims against Lowe’s, which the trial court granted. The severance order made the summary judgment on Butler’s claims against Lowe’s final, and Butler filed a timely notice of appeal. In her two issues on appeal, Butler argues that the trial court erred in granting summary judgment because the continuing tort doctrine applies as a matter of law to toll the statute of limitations on her claims against Lowe’s. ANALYSIS An appellate court applies de novo review to a grant of a traditional motion for summary judgment, using the same standard that the trial court used in the first instance. Duerr v. Brown, 262 S.W.3d 63, 68 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). The movant must show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Wright v. Greenberg, 2 S.W.3d 666, 670 (Tex. App.—Houston [14th Dist.] 1999, pet. denied) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985)). If the movant satisfies this burden, then the burden shifts to the non-movant to raise a genuine, material fact issue sufficient to defeat summary judgment. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In determining whether a material fact issue exists to preclude summary judgment, evidence favoring the non-movant is taken as true, and all reasonable inferences are indulged in favor of the non-movant. Id. I. Statute of Limitations In order to establish a limitations defense in its summary judgment motion, Lowe’s was required to (1) establish the date on which Butler’s causes of action accrued; (2) negate the discovery rule, if applicable in the case; and (3) prove as a matter of law that Butler’s claim is time-barred. See Yalamanchili v. Mousa, 316 S.W.3d 33, 36–37 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Butler does not dispute that the two-year statute of limitations applies to her negligence and trespass claims against Lowe’s. See Tex. Civ. Prac. & Rem. Code Ann. § 16.003 (Vernon 2002). Butler also does not dispute that she discovered that the fence had been erected on her property — and that trees, seedlings, and other landscaping material allegedly had been destroyed — on February 23, 2007. See Yalamanchili, 316 S.W.3d at 40 (“A trespass cause of action accrues upon discovery of the first physical invasion of the thing on the plaintiff’s property.”); Deloitte & Touche v. Weller, 976 S.W.2d 212, 215 (Tex. App.—Amarillo 1998, writ denied) (negligence action accrues when tort committed and plaintiff suffers damages). Lowe’s argued in its motion for summary judgment that Butler’s claims are barred by limitations because she did not file suit until August 19, 2009. We hold that Lowe’s established its limitations defense as a matter of law. See Yalamanchili, 316 S.W.3d at 36–37. II. Avoidance of the Statute of Limitations Butler argues on appeal that Lowe’s limitations defense fails because the continuing tort rule applies to her claims and defers the accrual date until well within the statute of limitations. See Markwardt v. Tex. Indus., Inc., 325 S.W.3d 876, 893 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“[A] continuing tort is an ongoing wrong causing a continuing injury [that] does not accrue until the tortious act ceases.”). A party seeking to avail itself of a rule in avoidance of limitations ordinarily must plead its theory of avoidance in its original petition or in an amended or supplemental petition. See Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 (Tex. 1988) (“A defendant who has established that the suit is barred cannot be expected to anticipate the plaintiff’s defenses to that bar. A matter in avoidance of the statute of limitations that is not raised affirmatively by the pleadings will, therefore, be deemed waived.”). However, this rule is triggered when a defendant pleads limitations as a defense. See id. (“A party seeking to avail itself of the discovery rule must therefore plead the rule . . . in response to the defendant’s assertion of the defense as a matter in avoidance.”); see also Roark v. Stallworth Oil and Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991) (“A party relying on an affirmative defense must specifically plead the defense . . . .”). Lowe’s did not plead a limitations defense in its original answer. Lowe’s pleading defect alone would not justify reversal of the summary judgment based on its defense of limitations under these circumstances. See Roark, 813 S.W.2d at 495 (“If the non-movant does not object to a variance between the motion for summary judgment and the movant’s pleadings [regarding an affirmative defense], it would advance no compelling interest of the parties or of our legal system to reverse a summary judgment simply because of a pleading defect.”). Similarly, Butler’s failure to plead a matter in avoidance of a statute of limitations would not have resulted in waiver of the issue if Butler had nonetheless raised it in an unobjected-to response to Lowe’s summary judgment limitations defense. See Krohn v. Marcus Cable Assocs., L.P., 201 S.W.3d 876, 880 (Tex. App.—Waco 2006, pet. denied) (“[I]f a plaintiff asserts the discovery rule in response to a summary judgment motion raising the statute of limitations, even though the discovery rule has not been pleaded in the plaintiff’s petition, the parties will be deemed to have tried the issue by consent unless the defendant objects . . . .”). Butler failed to raise such an issue in her pleadings or in a response to the summary judgment motion.[2] The trial court therefore did not err in ruling that Lowe’s conclusively established its entitlement to summary judgment based on its limitations defense. See Woods, 769 S.W.2d at 518.[3] We need not decide whether the trial court could have concluded that the continuing tort rule applied if Butler had raised it in avoidance of the limitations defense. CONCLUSION We overrule both Butler’s issues, and we affirm the trial court’s judgment. /s/ William J. Boyce Justice Panel consists of Justices Brown, Boyce, and Jamison. [1] Butler also sued the New Property Owner’s Association of Newport, Inc. and Houston Community Management Services for, among other things, failing to enforce deed restrictions against unauthorized fence-building. [2] We do not agree with Butler that allegations in her live pleading — that she is incurring “on-going” damages due to the “on-going” nature of the trespass since the fence’s installation — are sufficient to give Lowe’s fair and adequate notice that she intended to raise the continuing tort rule to avoid the limitations defense. [3] As we have noted in the past, at least one court has suggested that the continuing tort doctrine is an exception to the statute of limitations on which a party must come forward with proof raising an issue of fact in response to a summary judgment motion asserting limitations as a defense. See Markwardt, 325 S.W.3d at 894 n.10 (citing Palombo v. Sw. Airlines Co., No. 04-05-00825-CV, 2006 WL 1993783, at *2, *4 (Tex. App.—San Antonio Jul. 19, 2006, pet. denied) (mem. op.)). We express no opinion as to whether Lowe’s would have had the burden to negate the continuing tort doctrine in its summary judgment motion if Butler had raised the issue in her pleadings or response, or if Butler would have been required to come forward with proof raising an issue of genuine, material fact on the issue as non-movant. See, e.g., Walker, 924 S.W.2d at 377. Because she did neither, the trial court’s summary judgment was proper.