Akinwamide, Patrick Olajide v. Transportation Insurance Company, Automatic Data Processing Inc., and CNA Insurance Co.

Affirmed and Plurality Memorandum and Concurring Memorandum Opinions filed May 8, 2003 Affirmed and Plurality Memorandum and Concurring Memorandum Opinions filed May 8, 2003. In The Fourteenth Court of Appeals ____________ NO. 14-02-00582-CV ____________ PATRICK OLAJIDE AKINWAMIDE, Appellant V. TRANSPORTATION INSURANCE COMPANY, AUTOMATIC DATA PROCESSING, INC., and CNA INSURANCE CO., Appellees On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 01-34382 P L U R A L I T Y    M E M O R A N D U M    O P I N I O N After an unsuccessful lawsuit to recover on a workers= compensation claim, appellant Patrick Olajide Akinwamide filed a second suit against his employer and two insurance companiesCappellees Automatic Data Processing, Inc., Transportation Insurance Co., and CNA Insurance Co.Calleging fraud, negligence, and fraudulent concealment. Upon motion by appellees, the trial court granted summary judgment based on limitations, res judicata, and collateral estoppel. Appellant now appeals, asserting two points of error. We affirm. FACTUAL AND PROCEDURAL HISTORY In June of 1991, appellant Patrick Olajide Akinwamide filed a worker=s compensation claim with the Texas Industrial Accident Board (IAB). He claimed he had developed severe asthma, chronic rhinitis, hypertension, and a hernia due to inhalation of second-hand smoke while working at appellee Automatic Data Processing, Inc. (ADP).[1] In August of 1997, the IAB issued its final ruling regarding appellant=s alleged injuries and denied appellant=s claim. Unhappy with the decision, appellant filed an appeal with the IAB and, on September 23, 1997, filed suit against ADP in the 80th District Court. Later, he alleged fraudCand sought to add ADP=s insurers, appellees Transportation Insurance Co. (TIC) and TIC=s parent corporation, CNA Insurance Co. (CNA), as defendants. The trial court denied appellant=s motion to join TIC and CNA. In June of 2000, appellant=s case was tried before a jury and the jury found appellant had not timely filed his appeal from the ruling of the IAB. Appellant has appealed this finding and the case is now pending before the Thirteenth Court of Appeals in Corpus Christi, Texas. In a second lawsuitCfiled July 6, 2001Cappellant recommenced his efforts to recover damages from ADP, TIC, and CNA. This time he sued the three for fraud, negligence, and fraudulent concealment, alleging all three had conspired to misrepresent facts pertinent to appellant=s claim for compensation. In March 2002, appellees filed a motion for summary judgment in the second lawsuit, relying upon the applicable statute of limitations, res judicata, and collateral estoppel. On April 15, 2002Cas a result of this motionCthe trial court signed an order dismissing all claims against appellees. Appellant filed a timely notice of appeal. ISSUES ON APPEAL Appellant, a pro se litigant, asserts two points of error. First, he contends the trial court improperly granted appellees= motion for summary judgment because appellees failed to carry their burden to show an absence of material fact on appellant=s equitable tolling defense to limitations. Next, he asserts the trial court erred in granting the motion for summary judgment. STANDARD OF REVIEW Summary judgment is proper when the movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Hughes Wood Products, Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000). Summary judgment for a defendant is proper when the defendant negates at least one element of each of the plaintiff=s theories of recovery or pleads and conclusively establishes each element of an affirmative defense. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Lake Charles Harbor & Terminal Dist. v. Board of Trustees of Galveston Wharves, 62 S.W.3d 237, 241 (Tex. App.CHouston [14th Dist.] 2001, pet. denied). Once the movant has established entitlement to summary judgment, the burden shifts to the nonmovant to show why summary judgment should not be granted. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985). Every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in his favor. Id. DISCUSSION In his first point of error, appellant asserts the trial court erred in granting summary judgment because appellees failed to carry their burden to show the absence of material fact issues on appellant=s equitable tolling defense to limitations. Citing Palmer v. Enserch, appellant claims that ifCafter a movant establishes his prima facie right to summary judgment based on limitationsCa nonmovant introduces or points to reasons for tolling the limitations statute, the movant must show there is no basis for applying the tolling exception to the statute of limitations. 728 S.W.2d 431, 436 (Tex. App.CAustin 1987, writ ref=d n.r.e.). Because appellees failed to provide summary judgment proof negating appellant=s tolling claim, he asserts, appellees= summary judgment motion fails. We disagree. While it is true the burden shifted to appellant after appellees conclusively established the elements of their defense of limitations, it is not true that the burden shifted back to appellees when appellant merely countered with the defensive issue of tolling without supporting summary judgment proof. Rather, appellant had the burden to point to summary judgment proof in the record addressing each element of his tolling claim. See Nicholson v. Memorial Hosp. System, 722 S.W.2d 746, 749 (Tex. App.CHouston [14th Dist.] 1986, writ ref=d n.r.e.). Indeed, appellant was obligated to raiseCby competent summary judgment proofCa genuine issue of fact on each element of his tolling affirmative defense to limitations. See id. Similarly, the Palmer court stated once the movant establishes a right to a summary judgment, the non-movant is required to expressly present any reasons seeking to avoid the movant=s entitlement, and such reasons must be supported by summary judgment proof. Palmer, 728 S.W.2d at 435. This he did not do. While appellant made conclusory statements that the statute of limitations should be tolled because of equitable estoppel, fraud, and fraudulent conceal-ment,[2] he provided no summary judgment proof on the most critical element of these issuesCnamely, that appellees had falsely represented or concealed a material fact. Instead, appellant alleges that appellees made false representations that there was a workers= compensation insurance policy that insured ADP for appellant=s injuries, and that appellees made these false representations to deter appellant from suing ADP in civil court. Appellant, however, points to no proof actually indicating ADP lacked coverage or engaged in conspiratorial communications with TIC and/or CNA.[3] Merely raising a defense to limitations will not defeat a summary judgment. Id. Because we find appellees offered proof supporting their affirmative defense of limitations, we find appellees established their entitlement to summary judgment as a matter of law.[4] Further, because appellant offered no summary judgment proof to support his fraud and misrepresentation tolling claims, we find appellant failed to rebut appellees= limitations defense and failed to shift the burden of proof back to appellees. Appellees were not required to respond to appellant=s assertion of a defense to their affirmative defense because appellant failed to adduce summary judgment proof raising a fact issue in avoidance of the affirmative defense of limitations. Palmer, 728 S.W.2d at 435. On this basis alone appellant=s first appellate issue fails. Moreover, even if appellant had offered summary judgment proof supporting the elements necessary to toll the running of the limitations period, the estoppel is not permanent. Equitable estoppel and fraudulent concealment only toll or suspend a statute of limitations until a party learns of the facts that give rise to the cause of action. Arabian Shield Dev. Co. v. Hunt, 808 S.W.2d 577, 584 (Tex. App.CDallas 1991, writ denied). Thus, once appellant learned of appellees= alleged deceit, his tolling period ended. See id. Because appellant asserts in his brief that he first learned of appellees= possible misrepresentations “on or about” November 13, 1998, when he obtained certain documents from the IAB, his tolling period ended. Because he filed his “fraudulent concealment” suit against appellees on July 6, 2001, more than two years after learning of the deceit, appellant=s suit was untimely.­ Accordingly, we overrule appellant=s first point of error. In his second point of error, appellant asserts the trial court erred in granting summary judgment.[5] Appellant cites Malooly Brothers v. Napier, 461 S.W.2d 119 (Tex. 1970), thus making this point of error a general assignment of error challenging all bases upon which the judgment could have been granted. Appellant only brought two grounds in support of the summary judgment motion: limitations, and res judicata and collateral estoppel. Appellant=s point of error one, addressed above, challenged the limitations ground; a fortiori, this Malooly point constitutes a challenge to the res judicata/collateral estoppel ground. We understand Malooly, taken as a whole, to hold that even a broad point of error must still be supported by argument challenging each independent summary judgment ground. See Plexchem Int’l, Inc. v. Harris County Appraisal Dist., 922 S.W.2d 930, 931 (Tex. 1996) (holding appellant preserved error on issue where, in addition to asserting broad point of error that court erred in granting summary judgment, appellant=s brief presented three pages of argument and authorities on the issue); Pena v. State Farm Lloyds, 980 S.W.2d 949, 958 (Tex. App.CCorpus Christi 1998, no pet.) (holding broad point of error does not relieve appellant from obligation to provide sufficient argument and authorities to sustain each ground of reversal). Otherwise, the assertion of a broad point of error would shift the burden to the appellate court to search the record for grounds on which to reverse the summary judgment. This would remove the court from its position of impartiality and require it to become an advocate for appellant. Here, appellant has not advanced any argument or authorities supporting his challenge to the appellant=s second summary judgment ground. Thus, whether or not appellant preserved error on appellees= summary judgment ground of res judicata/collateral estoppel is problematic. Nevertheless, we note summary judgment is proper if the defendant establishes all elements of an affirmative defense. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). Therefore, because we find appellees successfully asserted their limitations defense, we need not reach this issue. Accordingly, we affirm the trial court=s judgment in cause number 01-34382. /s/ John S. Anderson Justice Judgment rendered and Plurality Memorandum and Concurring Memorandum Opinions filed May 8, 2003. (Frost, J., concurring.) (Yates, J., concurs in result only.) Panel consists of Justices Yates, Anderson, and Frost. [1] From September, 1989 through April, 1990, appellant worked in a workspace located in one of ADP=s designated smoking areas. On April 8, 1990, appellant was transferred to another location where smoking was prohibited. On March 4 1991, ADP became a smoke-free environment, with no smoking permitted anywhere. In an ADP AReport of Injury or Illness@ dated September 6,1991, the date of appellant=s injury is listed as May 1, 1991; in a second ADP AReport of Injury or Illness@ dated September 13, 1991, the date listed is May 13, 1991; and in appellant=s original petition filed September 23, 1997, appellant alleges he sustained injuries on October 15, 1989. [2] In order to invoke equitable estoppel, a party must establish (1) a false representation or concealment of material facts; (2) made with knowledge, actual or constructive, of those facts; (3) with the intention that it should be acted on; (4) to a party without knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the representations. See Johnson v. Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515B16 (Tex. 1998). Common-law fraud is proved when (1) a material representation was made; (2) the representation was false; (3) when the representation was made, the speakers knew it was false or made it recklessly without any knowledge of the truth and, as a positive assertion; (4) the representation was made with the intention that it be acted upon by the other party; (5) the party acted in reliance upon the representation; and (6) the party suffered injury. Id. at 524. Fraudulent concealment tolls or suspends the running of a limitations period when a party demonstrates (1) the existence of an underlying tort; (2) the defendant=s knowledge of the tort; (3) the defendant=s use of deception to conceal the tort; and (4) the plaintiff=s reasonable reliance on that deception. See DiGrazia v. Old, 900 S.W.2d 499, 502 (Tex. App.CTexarkana 1995, no writ); Arabian Shield Dev. Co. v. Hunt, 808 S.W. 2d 577, 584 (Tex. App.CDallas 1991, writ denied). [3] In his brief, appellant asserts that four documents in the record (exhibits F, G, I and M), as well as his employment file (not in the record) provide proof ADP was not a subscriber to Texas Worker=s Compensation Insurance and Aprobably@ had no policy in force at the time of appellant=s injury on October 15, 1989. These documents include $ Exhibit FCa copy of a letter from ADP to CNA dated 9-6-91 that requested CNA handle appellant=s claim; $ Exhibit GCa copy of (1) a Texas Workers= Compensation Commission (TWCC) notice Creceived by TWCC on 8-6-87Cstating ADP=s insurance policy with TIC numbered WC001704296 was being replaced by policy number WC 001597635 and would run from 7-1-87 Auntil cancelled@; and (2) a TWCC noticeCreceived by TWCC on 8-7-92Cstating ADP=s coverage with TIC under policy number WC 001597635 was terminated 7-1-92. $ Exhibit I: a copy of a TWCC form sent to ADPCdated 9-16-91 and referencing TICCrequesting ADP furnish a copy of appellant=s original injury report; and $ Exhibit M: a copy of a TWCC formCdated 3-8-99Cstating that Aafter a diligent search,@ no record of any ADP policy number WC 507415814 could be found. The form further states that this information Ashould not imply proof of coverage, or lack of coverage, for the listed company, only that the Commission has no insurance coverage records.@ After careful review of these documents, we find appellant=s exhibits are not summary judgment proof that ADP lacked coverage or that ADP conspired to commit fraud; rather, the exhibits indicate ADP had a policy with TCI and its parent, CNA, during the time of appellant=s alleged injury; that this coverage lasted at least until July 1, 1992; and that ADP in fact made an effort to get CNA to settle appellant=s claim and TWCC made an effort to obtain appellant=s injury report. The fact that TWCC found no record of a specific policy number years after appellant filed his claim does not prove ADP never had coverage; rather, it proves only that the Commission does not have a record of it. [4] A defendant seeking summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense. When the plaintiff pleads the discovery rule as an exception to limitations, the defendant must negate that exception as well. Velsicol Chem. Corp. V. Winograd, 956 S.W.2d 529, 530 (Tex. 1997); Woods v. William M. Mercer, Inc., 769 S.W.2d 515, 518 n. 2 (Tex. 1988). However, appellant=s first issue on appeal raises equitable tolling as a defense to limitations, not discovery. Even conceding appellant raised the discovery rule, appellees negated it inasmuch as they attached to the summary judgment motion a copy of appellant=s original petition in the first suit, filed during September, 1997. Moreover, there was no confusion regarding the workers= compensation carrier for appellant=s employer, Automatic Data Processing. A letter dated April, 1992 from the Texas Workers= Compensation Commission to appellant stated A[t]he workers= compensation insurance carrier for Automatic Data Processing for your claim is CNA Insurance Company.@ Appellees conclusively established the defense of limitations by pointing to proof in the record that appellant=s injuries were sustained on October 15, 1989; that appellant filed notice of the injury and a claim for compensation with the IAB on June 13, 1991; that appellant filed his first lawsuit on September 25, 1997; and that appellant filed his second lawsuit on July 6, 2001. Because we find the date on which appellant filed this lawsuit to be more than eleven years after the date the alleged smoke inhalation and lung damage occurred, we find appellant did not bring his cause of action within the two-year limitations period. See Tex. Civ. Prac. & Rem. Code Ann. ' 16.003(a) (Vernon 2002). [5] Appellant=s statement within this point incorporates elements of the rule announced in Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623 (Tex. 1996). In Cates, the court held the appellate court must review all of the summary judgment grounds on which the trial court actually ruled, whether granted or denied, and which are dispositive of the appeal. Id. at 626. Here, the final summary judgment signed April 15, 2002 does not state the basis for the ruling. The trial court in Cates ruled on all the summary judgment grounds presented, granting some and denying others. Id. Because the facts in the case sub judice do not track those in Cates, the rule announced there is not applicable here.