Barnhill v. Integrated Health Services, Inc.

OPINION Opinion by: ALMA L. LÓPEZ, Justice. Bryan Barnhill (“Barnhill”) appeals a summary judgment granted in favor of Integrated Health Services, Inc. (“Integrated”). In three points of error, Barn-hill asserts that the trial court: (1) erred in granting summary judgment because genuine issues of material fact were presented; (2) abused its discretion in denying his motion for continuance of the summary judgment hearing; and (3) erred in failing to take judicial notice of its own file in a separate cause. We reverse the trial court’s judgment and remand the cause for further proceedings consistent with this opinion. Factual and Procedural History Barnhill injured his back at work on October 13,1995. Barnhill was terminated a few days later. In January of 1996, Barnhill brought suit against Normandy Terrace, Inc. d/b/a Normandy Terrace Southeast. It is undisputed that the name of the facility at which Barnhill worked was Normandy Terrace. Barnhill’s petition alleges a negligence claim, asserting “In this regard, Defendant as an employer, had certain non-delegable and continuous duties to Plaintiff, Bryan Barnhill, their employee.” Barnhill then lists several acts of negligence that the defendant allegedly [323] committed as Barnhill’s employer, including failing to provide adequate and competent co-employees, failing to supply suitable equipment, failing to properly instruct on safety measures, and failing to enforce safety rules and regulations. Barnhill’s petition also contains a claim for discrimination, asserting; “[T]he Defendant failed to take the Plaintiff back to work and/or failed to make reasonable accommodations for him as a result of the previous on the job back injury.” In April of 1996, Barnhill served his first set of interrogatories. Interrogatory No. 14 asked whether the defendant had been “correctly designated as a party Defendant in the above styled cause insofar as the legal description and correct spelling is concerned.” Chris M. Antolik (“Antolik”) filed answers and objections to the interrogatories on behalf of Riverside Healthcare, Inc. d/b/a Normandy Terrace. In response to Interrogatory No. 14, the defendant stated that it was properly named Riverside Healthcare, Inc. d/b/a Normandy Terrace (“Riverside”). In response to other discovery, Barnhill was given a copy of his personnel file. The file contained a notice in accordance with the Texas Workers’ Compensation Act that identified his employer as Preferred Care, Inc. (“Preferred Care”), with Normandy Terrace, S.E. being identified as the name of the facility. Barnhill subsequently amended his petition and added both Riverside and Preferred Care as defendants. In November of 1997, Barnhill filed a motion to compel production of discovery. The motion was set on November 19, 1997. On November 19, 1997, Antolik filed an answer on behalf of Preferred Care in which Preferred Care specifically denied that it was Barnhill’s employer at the time of the incident made the basis of the lawsuit. In addition, Antolik filed a stipulation and affidavit in which she stated that she had been retained by Integrated to represent Riverside. Barnhill’s attorney stated that based on conversations he had with Antolik on or about November 19, 1997, it was his understanding and belief that Integrated may be Barnhill’s true employer. On December 2, 1997, Barnhill amended his petition to name Integrated as a defendant. Integrated filed a motion for summary judgment based on limitations. Barnhill filed a response, asserting fraudulent concealment as an affirmative defense. Barn-hill also filed a motion for continuance, asserting that additional time was needed for discovery in order to properly respond to Integrated’s summary judgment motion and to obtain additional evidence to support the fraudulent concealment defense. The trial court denied the motion for continuance and granted the motion for summary judgment. During the course of the hearing on the motion for summary judgment, the trial court refused to take judicial notice of its file in another cause. Fraudulent Concealment In his first point of error, Barnhill asserts that the trial court erred in granting the summary judgment because genuine issues of material fact were raised with regard to his fraudulent concealment defense. Integrated responds that Barnhill failed to meet his burden with regard to the fraudulent concealment defense. The standard for reviewing a summary judgment is whether the successful movant at the trial level carried its burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex.1999). In conducting our review, we take as true all evidence favorable to the non-movant, and we make all reasonable inferences in the nonmovant’s favor. Id. Furthermore, any doubt is resolved in the nonmovant’s favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). A defendant moving for summary judgment on the affirmative defense [324] of limitations has the burden to conclusively establish that defense. KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d at 748. If the movant establishes that the statute of limitations bars the action, the nonmovant must adduce summary judgment proof raising a fact issue in avoidance of the statute of limitations. Id. A party asserting fraudulent concealment as an affirmative defense to the statute of limitations has the burden to raise it in response to the summary judgment motion and to come forward with evidence raising a fact issue on each element of the fraudulent concealment defense. Id. at 749. Fraudulent concealment is based on the concept of equitable estoppel and prevents the wrongdoer from perpetuating fraud further by using a limitations defense as a shield. Borderlon v. Peck, 661 S.W.2d 907, 908 (Tex.1983). Fraudulent concealment may be shown where a party affirmatively conceals the responsible party’s identity if there is a duty to disclose one’s identity. Cherry v. Victoria Equipment & Supply, Inc., 645 S.W.2d 781, 782 (Tex.1983); Dougherty v. Gifford, 826 S.W.2d 668, 674 (Tex.App.—Texarkana 1992, no writ). Section 406.005 of the Texas Workers’ Compensation Act requires an employer to provide notice to its employees regarding the availability of workers’ compensation coverage. Tex. LaboR Code Ann. § 406.005 (Vernon 1996). It also requires employers to post notices in their workplace with regard to the existence of coverage. Id. Section 110.101(e) of title 28 of the Texas Administrative Code specifies the content of that notice. 28 Tex. Admin. Code. § 110.101(e) (West 1998). The name of the employer is required to be included in the notice. Id. Resolving all doubt in Barnhill’s favor, we must assume that Integrated is Barn-hill’s employer. By the nature of Barn-hill’s pleadings, it was evident that he was seeking to sue his employer. His petition made specific reference to the defendants as his employers and as non-subscribers under the workers compensation act. The workers’ compensation notice misidentified Preferred Care as Barnhill’s employer. Preferred Care filed its answer specifically denying that it was Barnhill’s employer on the same day that Antolik filed the stipulation and affidavit identifying Integrated as the entity that retained her to represent Riverside. No specific denial was contained in Riverside’s answer, and Riverside responded to Barnhill’s interrogatory that the properly named defendant was Riverside. Antolik represented all three entities. Given this evidence and sequence of events, we hold that Barn-hill met his burden in raising genuine issues of material fact with regard to whether Integrated fraudulently concealed its identity from Barnhill. We further note that Integrated (1) was aware of the lawsuit; (2) was not misled regarding the lawsuit; (3) was not disadvantaged in obtaining evidence to defend itself; and (4) had business connections with at least one of the named defendants; therefore, Integrated was not prejudiced by the pleading defect. See Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 760-61 (Tex.1995); Walls v. Travis County, 958 S.W.2d 944, 946-47 (Tex.App.—Austin 1998, writ denied); Hernandez v. Furr’s Supermarkets, Inc., 924 S.W.2d 193, 196 (Tex.App.—El Paso 1996, writ denied). We sustain Barn-hill’s first point of error. Conclusion The trial court erred in granting summary judgment in favor of Integrated because Barnhill raised genuine issues of material fact with regard to his affirmative defense of fraudulent concealment. Because we sustain Barnhill’s first point of error, we do not address his other issues. The judgment of the trial court is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. Dissenting opinion by: PAUL W. GREEN, Justice.