Court of Appeals of Texas, First District, HoustonMar 27, 2003
No. 01-02-00738-CV (Tex. App. Mar. 27, 2003)

No. 01-02-00738-CV.

Opinion issued March 27, 2003.

Appeal from the 11th District Court, Harris County, Texas, Trial Court Cause No. 2001-65276.

Panel consists of Chief Justice RADACK and Justices NUCHIA and HANKS.


SAM NUCHIA, Justice.

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


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.

Robinson contends that her employer was Ultramar, while Ultramar contends that Robinson's employer was Diamond Shamrock Refining and Marketing Company. For the purposes of this opinion, taking into consideration the correct standard of review, we will assume Robinson's employer was Ultramar.

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.

Without ruling explicitly on Robinson's objections, 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. However, Robinson did not obtain a ruling on her objections and did not object to the trial court's failure to rule. Therefore, she has waived all her objections except for any substantive challenges to the affidavits. Tex.R.Civ.P. 166a(f); Tex.R.App.P. 33.1(a)(2)(A); Bracewell v. Bracewell , 31 S.W.3d 610, 614 (Tex.App.-Houston [1st Dist.] 1999, pet. denied). However, we need not determine whether any of her challenges are to substantive defects because we consider only Ultramar's exhibits A, B, and C in the disposition of this appeal. To determine whether Ultramar established its defense of statute of limitations, we consider only Ultramar's exhibit A, Robinson's original petition. It is uncontested that Robinson's injury occurred on October 7, 1997. Robinson's petition states that she reported her injury to her supervisor and, in November 1997, sought an attorney's advice regarding the injury. Robinson's original petition was filed on December 27, 2001, more than two years after the statute of limitations barred her negligence cause of action. Therefore, Ultramar has proved its defense of statute of limitations.

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. In addition, Ultramar's summary judgment evidence, exhibits B and C, show that Robinson's employer gave notice that she was not covered by workers' compensation insurance. Exhibit B is a notice, signed by Robinson, which states,

Ultramar challenges, for the first time on appeal, Robinson's affidavit as conclusory. Such a challenge is permissible because it goes to the substance of the affidavit. Green v. Indus. Specialty Contractors, Inc. , 1 S.W.3d 126, 130 (Tex.App.-Houston [1st Dist.] 1999, no pet.).


I understand that designated Diamond Shamrock locations in Texas do not participate in the Texas Workers' Compensation program.

I understand that Diamond Shamrock has established the Work Injury Program to provide benefits if I sustain an eligible work-related injury or illness.

The side of the notice on which Robinson's signature appears also states,


. . . .


Robinson signed this notice on April 25, 1997. Exhibit C is a one-page document entitled, "DIAMOND SHAMROCK WORK INJURY PROGRAM ACCIDENT REPORT." In the section for medical treatment authorization, it provides in bold print, "Diamond Shamrock Refining And Marketing Company / National Convenience Stores Incorporated Is Not A Subscriber Under The Texas Workers' Compensation Act." Robinson signed this form in two places on October 9, 1997, two days after her injury.

Although Ultramar did not have the burden to disprove Robinson's fraudulent-concealment defense, Ultramar's summary judgment evidence conclusively established that it did not conceal the fact that Robinson was not covered by workers' compensation insurance.


We affirm the judgment.