Elenora S. Robinson v. Ultramar Diamond Shamrock Corp.

Opinion

Opinion issued May 15, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00738-CV

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ELENORA S. ROBINSON, Appellant

V.

ULTRAMAR DIAMOND SHAMROCK CORP., Appellee

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On Appeal from the 11th District Court

Harris County, Texas

Trial Court Cause No. 2001-65276

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MEMORANDUM OPINION ON REHEARING

            We deny appellant’s motion for rehearing. However, we withdraw our opinion issued March 27, 2003 and issue this opinion in its place.

            Appellant, Elenora S. Robinson, appeals the summary judgment rendered by the trial court in favor of Ultramar Diamond Shamrock Corp. (Ultramar), appellee. We affirm.

BACKGROUND

            On October 7, 1997, Robinson was injured in the course and scope of her employment with a Stop-N-Go store owned by Ultramar. On December 27, 2001, Robinson sued Ultramar for negligence. Robinson alleged that, after her injury on October 7, 1997, her supervisor told her she was covered by workers’ compensation insurance; that she saw two physicians for treatment for her injuries; and that she relied on Ultramar’s representation regarding coverage in not filing suit against Ultramar for negligence. Robinson alleged that she discovered she was not covered by workers’ compensation insurance on May 21, 2001 when she sought a second opinion from a doctor who called Ultramar to confirm the workers’ compensation coverage and was told that she had no workers’ compensation insurance and could be treated only by health care workers approved by Ultramar. Robinson also alleged that her claims were not barred by limitations because Ultramar fraudulently concealed the fact that she was not covered by workers’ compensation insurance.

            Ultramar filed a motion for summary judgment, asserting that Robinson was not an employee of Ultramar; that Robinson had no claim for fraud, conspiracy, or negligence; and that all of Robinson’s claims were barred by the two-year statute of limitations. Ultramar attached several documents and two affidavits as summary judgment proof. Robinson then filed a second amended petition, which did not assert causes of action for fraud or conspiracy, and a response to Ultramar’s motion for summary judgment. In her response, she objected to Ultramar’s summary judgment proof and attached her own affidavit, which recited her allegations against Ultramar. The trial court granted Ultramar’s motion for summary judgment. On appeal, Robinson presents a single issue contending that Ultramar was not entitled to summary judgment.

DISCUSSION

Standard of Review

            We follow the usual standard for reviewing summary judgments, taking all evidence favorable to the nonmovant as true, indulging every reasonable inference in the nonmovant’s favor, and resolving any doubts in its favor. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Lawson v. B Four Corp., 888 S.W.2d 31, 33-34 (Tex. App.—Houston [1st Dist.] 1994, writ denied). A defendant who relies on an affirmative defense for a summary judgment must establish each element of that defense. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996).

Statute of Limitations

            Robinson contends that Ultramar was not entitled to summary judgment because Robinson’s objections to Ultramar’s summary judgment evidence should have been sustained by the trial court. To determine whether Ultramar established its defense of statute of limitations, we consider only Ultramar’s exhibit A, Robinson’s original petition. In the trial court, Robinson objected to exhibit A on the ground that “such pleading has been superceded by amendment.”

            Robinson also complains, for the first time on appeal, that pleadings are not competent summary judgment evidence. This complaint is waived. See Tex. R. App. P. 33.1. Furthermore, it has no merit. Although pleadings may not generally be considered as summary judgment evidence, they may form the basis for a summary judgment when the defendant asserts limitations as an affirmative defense. Cronen v. City of Pasadena, 835 S.W.2d 206, 210 (Tex. App.—Houston [1st Dist.] 1992, no writ), disapproved on other grounds, Lewis v. Blake, 876 S.W.2d 314, 316 (Tex. 1994).

            Robinson’s original petition alleged that her injury occurred on October 7, 1997. Her second amended petition, filed more than a month after Ultramar filed its motion for summary judgment, did not change that allegation. Both the original petition and the amended petition allege that she reported her injury to her supervisor and, in November 1997, sought an attorney’s advice regarding the injury. Therefore, the factual allegations that establish the accrual of Robinson’s cause of action are the same in both petitions. In addition, Robinson’s original petition shows the date on which Robinson filed her lawsuit— December 27, 2001, more than two years after the date of her injury. Therefore, Robinson’s original petition is competent evidence to establish Ultramar’s limitations defense.

Fraudulent Concealment and Equitable Estoppel

            Robinson contends that Ultramar cannot prevail on its limitations defense because she has created a fact issue regarding Ultramar’s fraudulent concealment. Robinson also complains that Ultramar’s motion for summary judgment did not address her defense of equitable estoppel.

            Robinson’s equitable-estoppel defense is identical to her fraudulent-concealment defense. Both defenses are based on Robinson’s allegation that Ultramar, through Robinson’s supervisor, falsely represented to Robinson that she was covered by workers’ compensation insurance and that Ultramar was estopped from asserting the statute of limitations as a defense because of its false representation.

            Fraudulent concealment is based upon the doctrine of equitable estoppel. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex. 1983). If proved, the defense of fraudulent concealment estops a defendant from relying on the statute of limitations as an affirmative defense until the plaintiff discovers or, through reasonable diligence, could discover its cause of action. Id. Therefore, under the facts of the present case, when Ultramar challenged Robinson’s fraudulent-concealment defense, it also challenged her equitable-estoppel defense.

            To avoid summary judgment, a plaintiff who asserts fraudulent concealment as a defense to the statute-of-limitations bar has the burden to raise a fact issue on each element of its defense. Shah v. Moss, 67 S.W.3d 836, 846 (Tex. 2001). The plaintiff must show that the defendant (1) actually knew a wrong occurred, (2) had a fixed purpose to conceal the wrong, and (3) concealed the wrong from the plaintiff. Id.

            As summary judgment evidence, Robinson attached her affidavit and the first two pages of an employee handbook. The pages from the handbook did not contain any representations regarding workers’ compensation insurance; therefore, they do not support Robinson’s assertion of fraudulent concealment.

            Robinson’s affidavit is merely a sworn version of the facts alleged in her second amended petition: that an unnamed supervisor told her she was covered by workers’ compensation insurance, that she relied on this representation, and that Ultramar continued to represent that she was covered by workers’ compensation insurance. Robinson’s affidavit is conclusory in that it does not state facts showing who continued to represent that she was covered by workers’ compensation insurance or in what manner the representation was made. Robinson’s affidavit does not raise a fact issue regarding any fixed purpose by Ultramar to conceal any wrong that may have occurred or that Ultramar did, in fact, conceal any wrong.

            We hold that Robinson has not carried her burden of raising a fact issue on each element of her fraudulent-concealment defense.

CONCLUSION

            We overrule Robinson’s sole issue and affirm the judgment.  

            Appellant’s pending motion for en banc consideration is denied as moot.

                                                                        Sam Nuchia

                                                                        Justice

Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.