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Hernandez v. Kroger Texas L.P.

Court of Appeals of Texas, First District

April 20, 2017

MARY HERNANDEZ, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSEPH HERNANDEZ, DECEASED, CARLOS CRUZ HERNANDEZ, AND JOSE CRUZHERNANDEZ, Appellants
v.
KROGER TEXAS L.P., Appellee

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

          Panel consists of Justices Massengale, Brown, and Huddle.

          MEMORANDUM OPINION

          MICHAEL MASSENGALE JUSTICE.

         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 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, 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, ...


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