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Terrace v. City of Texarkana6/21/1999
e of material fact about when TTL in the exercise of reasonable diligence should have discovered the nature of its injury. Therefore, TWU did not meet its burden of negating the discovery rule. To the contrary, we find that TTL's summary judgment evidence raises a fact issue in avoidance of the statute of limitations. The fact finder should be given the opportunity to determine the facts with reference to when TTL, in the exercise of reasonable diligence, should have discovered the nature of its injury.
Citing Woods, TWU argues that TTL waived its discovery argument with regard to its money had and received claim. The Woods case states: " he party seeking to benefit from the discovery rule must also bear the burden of proving and securing favorable findings thereon." Woods, 769 S.W.2d at 518. Although TTL pled the discovery rule and made an offer of proof regarding the damages it believed it was entitled to prove in light of its assertion of the discovery rule, TTL did not request or secure jury findings on the discovery rule. However, the court in Woods went on to say:
"This burden does not apply, of course, in summary judgment cases. In Weaver v. Witt, we said that on motion for summary judgment, the burden is on the defendant to negate the discovery rule by proving as a matter of law that no issue of material fact exists concerning when the plaintiff discovered or should have discovered. . . . Thus, in a summary judgment setting, the burden rests upon the movant defendant not only to plead limitations, but also to negate the discovery rule. However, where the case proceeds to trial with a fact question as to when the plaintiff discovered, it is the plaintiff who benefits by the discovery rule who must ensure that such an issue is submitted." Woods, 769 S.W.2d at 518 n.2 (emphasis added).
Here, the case never proceeded to trial with a question of fact as to when the plaintiff discovered, because the trial court ruled at the summary judgment stage that the discovery rule did not apply as a matter of law. Therefore, we find that TTL did not waive its assertion of the discovery rule by not requesting or securing a jury finding thereon. It would make no sense to ask the jury to decide something which the trial court has already decided as a matter of law does not apply.
The granting of TWU's motion for partial summary judgment was error. TTL's first point is sustained.
Excluding Evidence of Overcharges from 1976 to 1993
In its second point, TTL contends the trial court erred in prohibiting it from admitting evidence of all overcharges from 1976 through 1993. TTL argues that it attempted to enter the full amount of overcharges at trial, the trial court excluded this evidence, and it made a bill of exception to preserve this issue for appeal.
To obtain reversal of a judgment based on error in the admission or exclusion of evidence, the appellant must show that the trial court did in fact commit error and that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Parkway Hosp., Inc. v. Lee, 946 S.W.2d 580, 583 (Tex. App.-Houston [14th Dist.] 1997, writ denied). Because we hold that the discovery rule does apply on the facts of this case, thus tolling the statute of limitations, and because TTL did timely file its claim for money had and received as previously discussed, TTL was entitled to introduce evidence of damages for the entire period from December 1976 to February 1993. Thus, it was error to exclude this evidence and its exclusion was reasonably calculated to cause and probably did cause rendition of an imp
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