Mary Hernandez, Individually and as Personal Representative of the Estate of Joseph Hernandez, Carlos Cruz Hernandez and Jose Cruz Hernandez v. Kroger Texas, L.P.

Opinion issued April 20, 2017

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-15-00836-CV
———————————
MARY HERNANDEZ, INDIVIDUALLY AND AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF JOSEPH HERNANDEZ,
DECEASED, CARLOS CRUZ HERNANDEZ, AND JOSE CRUZ
HERNANDEZ, Appellants
V.
KROGER TEXAS L.P., Appellee

On Appeal from the 149th District Court
Brazoria County, Texas
Trial Court Case No. 74064

MEMORANDUM OPINION

This is an appeal from a summary judgment disposing of all of the

appellants’ claims against Kroger Texas, L.P. arising out of the sale of an allegedly

defective cantaloupe. The appellants contend that the trial court erred by granting
summary judgment. They also argue that the trial court’s denial of their motion for

continuance of the summary-judgment hearing denied them due process of law.

Because the appellants have failed to challenge all of the possible grounds

upon which summary judgment could have been granted, and the continuance

issue is inadequately briefed, we affirm the judgment of the trial court.

Background

Joseph and Mary Hernandez went to a Kroger store in Clute, Texas and

bought a cantaloupe that looked and smelled normal. A few days later, Joseph ate

the entire cantaloupe. “Two or three days” after eating the cantaloupe, Joseph

began having symptoms including fever, chills, diarrhea, uncontrollable urination,

and headaches. A month after consuming the cantaloupe, he was diagnosed as

having worms in his stool. More than a year after he ate the cantaloupe, Dr.

William Burns diagnosed him with listeriosis. In the doctor’s opinion, Joseph

sustained his “infection by consuming contaminated food.” Dr. Burns never gave

an opinion as to what food may have caused Joseph’s infection.

Joseph and Mary filed suit against Kroger, alleging that the cantaloupe was

defective and caused Joseph to become infected with listeria. Their original

petition included allegations of negligence, negligence per se, gross negligence,

violations of the Texas Deceptive Trade Practices Act, breaches of express and

implied warranties, and strict products liability. During discovery, the Hernandezes

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filed a motion to compel discovery from Kroger. There is no indication in the

record that the trial court ever ruled on this motion.

While the suit was pending, Joseph died. His death certificate listed his

cause of death as “complications of obesity.” Mary continued the suit against

Kroger, both individually and as personal representative of Joseph’s estate.

After additional discovery and nearly two years after the suit was filed,

Kroger filed a motion for summary judgment. This motion included two no-

evidence grounds and a traditional ground. In its first no-evidence ground, Kroger

argued that there was no evidence that the cantaloupe was contaminated with

listeria or that it was otherwise defective. In its second no-evidence ground, Kroger

argued that there was no evidence that Joseph’s consumption of the cantaloupe

caused his illness or death. Kroger contended that evidence of both was necessary

to support the pending claims. In addition to these no-evidence grounds, Kroger’s

motion included a traditional ground in which it asserted an affirmative defense

under the innocent-seller statute, Section 82.003 of the Texas Civil Practice and

Remedies Code. Kroger argued that this statute protected it from liability because

it did not manufacture the cantaloupe that it sold.

Following the filing of Kroger’s motion for summary judgment, two verified

motions for continuance were filed. The trial court granted the first but did not

explicitly rule on the second. The petition was amended to add Joseph’s sons,

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Carlos and Jose, as plaintiffs in the case, to clarify their causes of action, and to

add claims for wrongful death and survivorship.

In response to Kroger’s no-evidence grounds, the Hernandezes argued that

there were genuine issues of material fact regarding whether the cantaloupe was

defective and whether it caused Joseph’s infection. They attached several exhibits

to their response including an affidavit from Dr. Burns discussing Joseph’s

infection, an affidavit from Mary Hernandez, receipts demonstrating the purchase

of cantaloupe from Kroger, copies of Joseph’s medical records, and various reports

discussing listeria and listeria outbreaks associated with cantaloupe. With respect

to Kroger’s traditional ground, they argued that several exceptions to the innocent-

seller statute applied, and they attached deposition testimony from two Kroger

employees to support their contentions.

The trial court granted summary judgment in Kroger’s favor, and the

Hernandezes appealed.

Analysis

The Hernandezes raise two issues on appeal. First, they argue that the trial

court erred by granting summary judgment. Next, they argue that the trial court

denied them due process of law by denying their motion for continuance.

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 I. Summary judgment

The Hernandezes contend that the trial court erred by granting Kroger’s

motion for summary judgment. They argue that they presented sufficient evidence

to overcome the no-evidence grounds and that the innocent-seller statute does not

support an affirmative defense for Kroger. We conclude that the Hernandezes have

waived this issue because their only appellate challenge to Kroger’s traditional

ground is an argument that they did not raise in the trial court.

When the movant asserts multiple grounds in its summary-judgment motion

and the trial court does not specify the basis for granting it, the appealing party

must show it would be error to grant summary judgment on any ground asserted in

the motion. Star–Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995). “If

summary judgment may have been rendered, properly or improperly, on a ground

not challenged, the judgment must be affirmed.” Ellis v. Precision Engine

Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no

pet.) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)). We may not

consider a ground for reversal that was not expressly presented to the trial court by

written motion, answer, or other response to the motion for summary judgment.

TEX. R. CIV. P. 166a(c); see Contractors Source, Inc. v. Amegy Bank Nat’l Ass’n,

462 S.W.3d 128, 133 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

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 With respect to Kroger’s traditional ground—which was based on an

affirmative defense under the innocent-seller statute—the Hernandezes’ only

appellate argument is that the statute is inapplicable. The appellants’ brief’s entire

argument in that regard is as follows:

See Texas above declared Texas Public Policy since 1942 to date,
including specifically surviving the enactment of (1) Chapter CPRC §
82.003-82.008—Strict Product Liability governing such food for
consumption such above Texas Supreme Court decisions starting with
Jacob Decker & Sons, Inc. v. Capps, 139 Tex. 609; 164 S.W.2d 828
1942 Tex. LEXIS 275; 142 A.L.R. 1479 (1942) and Griggs Canning
Co. v. Josey, 139 Tex, 623, 164 S.W. 2d 825, 840 (Tex. 1942),
declared the Public Policy of Texas from 1942 to the present date
(cases cited in September 1, 2015 hearing, State and Federal following
Capps and Josey above), that the sellers of food (including Kroger)
for public consumption as here are strictly liable without fault or
negligence and that is the declared Public Policy of Texas. It was and
is not affected by the later enactment of disputed CPRC Chapter §82
and including §82.004(a)(1) and (2) and (A) or (B) and not excluded
under §82.004(b) for manufacturing defects or breach of an express
harm for illnesses and injuries and deaths resulting, including
Kroger’s defenses that its melon or its cantaloupe sold to Appellant is
not its own designed or manufactured product within CPRC Chapter
82 and including §82.003. Kroger contended below albeit erroneously
that, it is not liable under §82.004, if arguendo. If applicable
contravened the above Public Policy of the State of Texas since 1942
ante in declaration of Capps and Josey[.]
Appellant’s Brief at 24.

To the extent the brief suggests the innocent-seller statute’s application is

precluded by a policy rationale articulated in the 1942 Texas Supreme Court cases

of Griggs Canning Co. v. Josey, 164 S.W.2d 835 (Tex. 1942), and Jacob E.

Decker & Sons, Inc. v. Capps, 164 S.W.2d 828 (Tex. 1942), such an argument was
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not preserved for appeal. In the response filed in the trial court, the Hernandezes

did not mention Griggs Canning. In response to Kroger’s no-evidence motion, they

did rely upon Jacob E. Decker & Sons for the proposition that the cantaloupe was

sold subject to an implied warranty of fitness for consumption, and as a result they

did “not need to show the cantaloupes were contaminated with disease or defects.”

C.R. 319.

But the Hernandezes never argued in the trial court that an implied warranty

of the fitness of cantaloupes for consumption—or the policy rationale behind the

law’s recognition of such an implied warranty—precluded granting summary

judgment on Kroger’s innocent-seller affirmative defense. Instead, they challenged

Kroger’s traditional ground by arguing that several exceptions to the

innocent-seller statute applied. C.R. 321–22. In particular, they argued in the trial

court that the affirmative defense did not apply because Joseph relied to his

detriment on an express factual representation that was incorrect, see TEX. CIV.

PRAC. & REM. CODE § 82.003(a)(5), and because Kroger may have actually known

about the product defect that caused the injury, see id. § 82.003(a)(6). Neither of

these arguments have been repeated on appeal.

Because the sole argument on appeal against Kroger’s traditional summary-

judgment ground was never presented to the trial court, we may not consider it. See

TEX. R. CIV. P. 166a(c); Contractors Source, 462 S.W.3d at 133. The summary

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judgment did not specify the particular grounds on which it was rendered;

therefore, the Hernandezes must defeat all grounds presented in Kroger’s motion.

See Ellis, 68 S.W.3d at 898. Because they did not negate the traditional summary-

judgment ground on appeal, we overrule this issue. See id.

II. Motion for continuance

In the “Issues Presented” section of their appellate brief, see TEX. R. APP. P.

38.1(f), the Hernandezes state that they are challenging the trial court’s denial of

their motion for continuance of the summary-judgment hearing. Specifically, that

portion of the brief states:

5. Did the Trial Court’s orders denying Appellants’ verified
Motion for Continuance prejudicially deny Appellants’
procedural and/or substantive due process of law, including:

6. Failures to grant Appellants’ timely Motions for continuance
and/or to:

a. Obtain long past due discovery under TRCP 194.2; 196;
and 197; and to
b. Conduct additional discovery after Kroger defendants’
failed to timely answer and prejudicially delayed
Appellants’ (1) Requests for Production of documents
per TRCP 196, and (2) First Set of Interrogatories per
TRCP 197, (served December 19, 2013) and (3) TRCP
194.2 Requests for disclosures, without good cause or
excuse extending beyond the two year statute of
limitations per CPRC §33, and after the 2011 repeal of
CPRC §33.004(e) (effective September 1, 2011),
prejudicially delaying Appellants’ discovery of the
requested, known Krogers’ sources of suppliers and
supplies of the growers of Kroger’s melons and
supplying them to Appellee Kroger; and
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 c. Failing to disclose Jenson Farms and/or Frontera
Produce, Ltd., as growers and suppliers to Kroger; and/or

d. That they were grown outside the U.S.A.

e. Some Kroger’s known Listeria in its melons as of the
documented date of sale on or about September 3, 2011.
Beyond this statement of issues presented, the Hernandezes present no legal

argument or citations to the record or legal authorities relating to the denial of their

motion for continuance.

An appellant’s brief must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record. TEX.

R. APP. P. 38.1(i). This requirement is not satisfied by conclusory statements. See

Anderson v. Houston Cmty. Coll. Sys., 458 S.W.3d 633, 650 (Tex. App.—Houston

[1st Dist.] 2015, no pet.). A failure to provide substantive analysis of an issue or

citations to appropriate authority waives the complaint. See Cervantes–Peterson v.

Tex. Dep’t of Fam. & Protective Servs., 221 S.W.3d 244, 255 (Tex. App.—

Houston [1st Dist.] 2006, no pet.).

Because the Hernandezes failed to provide us with substantive legal analysis

and citations to authority to support their contentions, we hold that they waived

this issue due to inadequate briefing. See TEX. R. APP. P. 38.1(i); Fredonia State

Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994). We overrule this

issue.

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 Conclusion

We affirm the judgment of the trial court.

Michael Massengale
Justice

Panel consists of Justices Massengale, Brown, and Huddle.

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