      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-01-00501-CV



                                  Margarita Herrera, Appellant

                                                  v.

                                     R. R. & F., Inc., Appellee



             FROM THE COUNTY COURT AT LAW NO. 2 OF TRAVIS COUNTY
             NO. 239,211, HONORABLE J. DAVID PHILLIPS, JUDGE PRESIDING



               Margarita Herrera appeals a summary judgment dismissing her personal injury claims

against R. R. & F., Inc. In two issues, Herrera contends that the trial court erred in (i) granting

summary judgment on grounds that her original claims were time-barred and (ii) striking her affidavit

without first giving her an opportunity to amend it. We affirm the trial court’s judgment.


                                          BACKGROUND

               On January 19, 1996, Herrera injured her back while working in a store owned by

R. R. & F. On January 20, 1998, Herrera filed suit against R. R. & F. for negligence, alleging that

the incident took place “on or about January 19, 1996.” R. R. & F. filed a motion for summary

judgment, contending that Herrera’s cause of action was barred by the statute of limitations. Herrera

filed a response arguing that her claim was not time-barred because she continued working from

January 19, the date of the initial injury, until January 26. In support of this claim, Herrera attached

to her response an affidavit alleging that each day she worked after January 19 she “re-injure[d]”
herself; however, the affidavit did not contain a jurat. Herrera also filed an amended petition alleging

that the injurious incidents occurred “on or about January 19, 1996 and after and at least through

January 26, 1996.” R. R. & F. did not seek a hearing on this motion for summary judgment.

                After discovery, R. R. & F. filed a second motion for summary judgment, again

alleging that, based on the date the original petition was filed and on Herrera’s deposition testimony

and answers to interrogatories, Herrera’s claims were time-barred. Herrera, represented by new

counsel, filed a response, attaching to it the identical affidavit that she had attached to her first

response. The day before the summary judgment hearing, R. R. & F. filed objections to Herrera’s

affidavit on the grounds that the affidavit (i) contained hearsay, conclusory statements, and

contradictions, and (ii) did not contain a jurat. The certificate of service stated that R. R. & F. served

a copy of the objections by facsimile to Herrera on the same day; the parties agree that Herrera did

not receive a copy of the objections until the day of the hearing.

                At the hearing, the trial court (i) struck Herrera’s entire affidavit because it was not

sworn and did not contain a proper jurat and (ii) rendered a general order granting R. R. & F.’s

motion for summary judgment. Herrera filed a motion for new trial, attaching an amended affidavit

with a proper jurat. The motion for new trial was overruled by operation of law.


                                     STANDARD OF REVIEW

                In reviewing a summary judgment in which the trial court does not state the basis for

its decision in its order, we review each ground asserted in the motion and affirm the trial court’s

judgment if any of the grounds are meritorious. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471,

473 (Tex. 1995). Summary judgment is proper only if the movant establishes that there are no

genuine issues of material fact and that it is entitled to judgment as a matter of law. See City of

                                                    2
Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). On appeal from a summary

judgment, we take the evidence favorable to the non-movant as true and indulge every reasonable

inference in favor of the non-movant. See, e.g., KPMG Peat Marwick v. Harrison County Hous. Fin.

Corp., 988 S.W.2d 746, 748 (Tex. 1999); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49

(Tex. 1985). A defendant moving for summary judgment on a statute of limitations affirmative

defense must prove conclusively the elements of that defense. Velsicol Chem. Corp. v. Winograd,

956 S.W.2d 529, 530 (Tex. 1997). Because the propriety of a summary judgment is a question of

law, we review the trial court’s decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695,

699 (Tex. 1994).


                                           DISCUSSION

               In her first issue, Herrera argues that the trial court erred in granting R. R. & F.’s

motion for summary judgment on the grounds that her claims were time-barred. Herrera contends

that the phrase “on or about January 19, 1996” sufficiently identifies a recurring injury beginning on

January 19 and ending on January 26, 1996. (Emphasis added.) Because Herrera did not raise this

issue in her response to R. R. & F.’s motion for summary judgment, she did not preserve this issue

for appeal. See Tex. R. App. P. 33.1; Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992)

(citing Clear Creek, 589 S.W.2d at 675-77).

               Even if properly preserved, this argument is without merit. Actions for personal

injuries must be brought within two years of the injury. Tex. Civ. Prac. & Rem. Code Ann.

§ 16.003(a) (West Supp. 2002); see also Fisher v. Westmount Hospitality, 935 S.W.2d 222, 223

(Tex. App.—Houston [14th Dist.] 1996, no writ) (for incident occurring on February 6, 1993, two-

year limitation period expired on February 6, 1995). To prevail on its motion for summary judgment

                                                  3
based on the affirmative defense of limitations, R. R. & F. had to conclusively establish when

Herrera’s cause of action accrued and that the statute of limitations barred her claim. See KPMG

Peat Marwick, 988 S.W.2d at 748. Once R. R. & F. established that date, Herrera was then required

to raise a fact issue about when the cause of action accrued.

               Herrera argued below that her first amended petition, alleging that the incidents

occurred over a range of dates, related back to the original petition and therefore defeated R. R. &

F.’s limitations defense. See Tex. Civ. Prac. & Rem. Code Ann. § 16.068 (West 1997). To relate

back, (i) the original cause of action asserted in the first pleading must not have been time-barred, as

measured by the date when the first pleading was filed, and (ii) new facts or grounds of liability

asserted in the amended petition must not be based on a wholly new occurrence. Id.; see Cooke v.

Maxam Tool & Supply, Inc., 854 S.W.2d 136, 141 (Tex. App.—Houston [14th Dist.] 1993, writ

denied). The first element requires a determination as to when the cause of action accrued, which

is a question of law for the court. See Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.

1990). A “cause of action accrues when a wrongful act causes some legal injury, even if the fact of

injury is not discovered until later, and even if all resulting damages have not yet occurred.” S.V. v.

R.V., 933 S.W.2d 1, 4 (Tex. 1996). Based on Herrera’s answers to interrogatories and deposition

questions, R. R. & F. affirmatively established Herrera’s injury happened on January 19, 1996, and

therefore her cause of action accrued on January 19, 1996.

                Relying on Grand Prairie Independent School District v. Vaughan, Herrera asserts

that because her injury was a continuing tort, with a new injury occurring each day she returned to

work after January 19 and until January 26, 1996, the “on or about” language in her original petition

provides her a variance of a few days in which to file her petition. See 792 S.W.2d 944, 945 (Tex.


                                                   4
1990) (“The term ‘on or about’ means a date of approximate certainty, with a possible variance of

a few days.”). Therefore, asserts Herrera, her petition was timely filed on January 20, 1998. This

assertion, standing alone, is not enough to withstand summary judgment.

                A continuing tort is inflicted over a period of time, involves repeated, wrongful

conduct, and each day creates a separate cause of action. Dickson Constr., Inc. v. Fidelity & Deposit

Co., 960 S.W.2d 845, 851 (Tex. App.—Texarkana 1997, no pet.); Twyman v. Twyman, 790 S.W.2d

819, 821 (Tex. App.—Austin 1990), rev’d on other grounds, 855 S.W.2d 619 (Tex. 1993). It

involves both continuing wrongful conduct and continuing injury. Dickson Constr., 960 S.W.2d at

851; Upjohn Co. v. Freeman, 885 S.W.2d 538, 542 (Tex. App.—Dallas 1994, writ denied). It was

incumbent on Herrera to produce some competent summary judgment evidence to show that her

injury did not occur only on January 19, 1996. However, in answering questions posed in

interrogatories and during her deposition, Herrera admitted that only a single injury occurred, that

being on January 19, 1996. There is no summary judgment evidence showing that her return to work

created a new injury. Instead, she asserts that her return to work aggravated her original injury.

Aggravation of an injury is not a continuing tort. Dickson Constr., 960 S.W.2d at 851 (citing

Upjohn, 885 S.W.2d at 543) (“a single, distinct injury despite continued availment to the tort . . . does

not constitute a continuing tort”). A limitations period begins to run when a wrongful act causes

some damage to a plaintiff; damage continuing from that same act does not toll the limitations period.

See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 828 (Tex. 1990) (citing Atkins v.

Crosland, 417 S.W.2d 150, 153 (Tex. 1967)); Dickson Constr., 960 S.W.2d at 851. Because

Herrera’s cause of action accrued as a matter of law on January 19, 1996, her original petition was

time-barred when filed on January 20, 1998. We overrule Herrera’s first issue.


                                                   5
                In her second issue, Herrera contends that the trial court erred in striking her affidavit

without giving her the opportunity to amend it. R. R. & F. responds that, because Herrera did not

request an opportunity to amend the affidavit or a continuance until after the trial court entered

judgment, Herrera waived any amendment argument. “Defects in the form of affidavits . . . will not

be grounds for reversal unless specifically pointed out by objection by an opposing party with

opportunity, but refusal, to amend.” Tex. R. Civ. P. 166a(f). To appeal, the party seeking to amend

an affidavit must bring the matter to the court’s attention. See Tex. R. App. P. 33. Nothing in the

record shows that, prior to the district court’s judgment, Herrera responded to R. R. & F.’s motion

to strike, sought an opportunity to amend, or requested a continuance.1 Therefore, Herrera waived

this issue for appeal. See id.; Travis, 830 S.W.2d at 100; see also Bell v. Moores, 832 S.W.2d 749,

756 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (no error in striking affidavits where party

failed to request opportunity to amend); Brooks v. Sherry Lane Nat’l Bank, 788 S.W.2d 874, 878

(Tex. App.—Dallas 1990, no writ) (party waived error by not objecting to motion to strike).

                Even if error were preserved, we hold the district court did not commit reversible error

by refusing Herrera an opportunity to amend her affidavit. A trial court’s decision to refuse to

consider untimely filed proof opposing a summary judgment motion is reviewed under an abuse of

discretion standard. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). To

prevail on her argument, Herrera must show that (i) the district court erred in sustaining R. R. & F.’s

objection and (ii) her stricken affidavit would have raised a fact issue. Id. To successfully challenge



   1
      Herrera first sought to amend her affidavit upon filing the motion for new trial, the denial of
which she does not challenge on appeal. Herrera attached to her motion for new trial an amended
affidavit which includes a jurat but otherwise is essentially identical to the affidavits filed in response
to R. R. & F.’s motions for summary judgment.

                                                    6
an evidentiary ruling, the complaining party usually must show that the judgment, viewed in light of

the entire record, turns on the evidence in question. Id. at 753-54. In an apparent attempt to raise

a fact issue, Herrera’s affidavit simply avers that she “re-injure[d]” herself between January 19 and

26 after complaining to her supervisor on January 19. This, taken with her answers to interrogatories

and deposition testimony in which she states that the incident occurred on January 19 and that her

back continued to hurt after that date, indicates at most that she may have aggravated her back injury

by returning to work. See Dickson Constr., 960 S.W.2d at 851. We cannot say that, based on the

entire record, the district court abused its discretion in striking her affidavit. We overrule Herrera’s

second issue.


                                          CONCLUSION

                Having concluded that Herrera filed her petition after the statute of limitations period

expired and that the trial court did not abuse its discretion in striking her affidavit, we overrule

Herrera’s two points of error and affirm the trial court’s judgment.




                                               Jan P. Patterson, Justice

Before Justices Kidd, Yeakel and Patterson

Affirmed

Filed: February 14, 2002

Do Not Publish

                                                   7
