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., 01-15-00836-CV

Background

Joseph Hernandez purchased and consumed a Kroger cantaloupe in September 2011; he later developed symptoms and was ultimately diagnosed with listeriosis by Dr. Burns, who opined the infection resulted from contaminated food but did not identify the specific food item.
Plaintiffs (Mary Hernandez as personal representative and individually, and Joseph's sons) sued Kroger asserting negligence, strict products liability, breach of warranty, DTPA claims, and later wrongful-death/survivorship claims after Joseph's death.
Kroger moved for summary judgment asserting two no-evidence grounds (no proof the cantaloupe was contaminated; no proof the cantaloupe caused Joseph's illness/death) and a traditional ground asserting the innocent-seller statute as an affirmative defense.
Plaintiffs responded with affidavits, medical records, purchase receipts, reports on listeria outbreaks, and deposition testimony; they also pursued discovery and filed motions to compel/continue (with mixed rulings on continuances and no record ruling on the motion to compel).
The trial court granted Kroger summary judgment without specifying the ground; plaintiffs appealed, arguing the no-evidence grounds were defeated and that the court erred in denying a continuance.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary judgment was improper because there was evidence triable issues on contamination and causation	Plaintiffs argued affidavits, medical records, receipts, and reports created genuine fact issues that the cantaloupe was contaminated and caused the infection	Kroger argued no-evidence showed lack of proof on contamination and causation; also asserted innocent-seller statute as an alternative traditional ground	Aff'd: Plaintiffs failed to defeat all grounds because they did not challenge the traditional innocent-seller defense on appeal; court may affirm on any unchallenged ground
Whether the innocent-seller statute (affirmative defense) was inapplicable	Plaintiffs contended public-policy/precedent (Jacob E. Decker & Sons / Griggs Canning) made sellers strictly liable for food; argued implied warranties preclude the defense	Kroger relied on CPRC §82.003 innocent-seller protection because it did not manufacture the cantaloupe	Overruled: Plaintiffs' appellate argument on policy was not preserved below; they had argued different exceptions in the trial court and did not raise the policy/Decker–Josey argument there, so it cannot be considered on appeal
Whether denial of a motion for continuance denied due process	Plaintiffs argued continuance was needed for overdue discovery to identify suppliers and evidence (e.g., growers, contamination)	Kroger implicitly opposed further delay; trial court denied/failed to rule on later continuance; factual record not developed on appeal	Waived: Plaintiffs' briefing lacked substantive legal argument or record citations, so the appellate complaint was inadequately briefed and waived
Whether appellate briefing preserved and adequately argued the issues	Plaintiffs relied on various legal authorities and factual exhibits but did not preserve some arguments in trial court nor brief others properly on appeal	Kroger relied on preservation and briefing defects to support affirmance	Affirmed: Court enforced preservation and briefing rules; issues not argued below or inadequately briefed were waived

Key Cases Cited

Star–Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995) (party must defeat every ground in a multi‑ground summary-judgment motion when the trial court does not specify basis)
Carr v. Brasher, 776 S.W.2d 567 (Tex. 1989) (judgment may be affirmed on any unchallenged ground)
Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894 (Tex. App.—Houston [1st Dist.] 2002) (same principle applied at First District)
Jacob E. Decker & Sons, Inc. v. Capps, 164 S.W.2d 828 (Tex. 1942) (historic Texas authority on implied warranties and seller liability for food)
Griggs Canning Co. v. Josey, 164 S.W.2d 835 (Tex. 1942) (companion case on public policy regarding liability for food sold for consumption)