Forrest v. Vital Earth Resources

• Decision Date: 28 October 2003
• Docket Number: No. 06-02-00177-CV.,06-02-00177-CV.
• Citation: 120 S.W.3d 480
• Parties: Rodney FORREST, Appellant, v. VITAL EARTH RESOURCES, Appellee.
• Court: Texas Court of Appeals

120 S.W.3d 480

Rodney FORREST, Appellant, v. VITAL EARTH RESOURCES, Appellee.

No. 06-02-00177-CV.

Court of Appeals of Texas, Texarkana.

Submitted October 2, 2003.

Decided October 28, 2003.

Robert D. Bennett, Robert D. Bennett & Associates, PC, Gilmer, for appellant.

Gary D. Sarles, Douglas Bracken, O. Paul Dunagan, Sarles & Ouimet, LLP, Dallas, for appellee.

Before MORRISS, C.J., ROSS and CARTER, JJ.

OPINION

Opinion by Justice ROSS.

Rodney Forrest was injured while in the employment of Vital Earth Resources. He sued his employer, alleging several acts and omissions by which he contends Vital Earth was negligent. Vital Earth moved for summary judgment on two grounds. The trial court granted the motion on only one ground. Forrest appeals, and Vital Earth brings a cross-appeal.

Forrest's injuries occurred September 29, 1997, when he slipped and fell from a ladder attached to a trailer provided by Vital Earth. Vital Earth is a nonsubscriber to workers' compensation insurance and had implemented an Occupational Injury Benefit Program under ERISA as the exclusive source of company paid benefits. Forrest received benefits under the plan for medical care and wage replacement for two years after the accident. On July 26, 2000, after the benefits under the plan were terminated, Forrest filed suit against Vital Earth. The acts and omissions by which Forrest contended Vital Earth was negligent included failure to maintain a safe workplace, failure to properly inspect equipment, and failure to provide safe equipment. Vital Earth moved for summary judgment on the grounds that Forrest's claims were barred by the two-year statute of limitations¹ and that there was no evidence Vital Earth breached any duty to Forrest that proximately caused his injuries.

Forrest pled in an amended pleading, and contended in his response to the motion for summary judgment, that Vital Earth was estopped from asserting the two-year statute of limitations as a defense because of the following affirmative representation contained in Vital Earth's Occupational Injury Benefit Plan summary:

Legal Actions: No legal action may be taken against the Company:

(1) before 60 days following the date proof of loss is sent to the Company; or

(2) after three years following the date proof of loss is due.

Forrest contended this representation in the summary of ERISA benefits acted to extend the statute of limitations period for personal injury claims to three years. He also produced his own affidavit stating he considered filing suit within the two-year statute, but did not do so in reliance on the above representation. Alternatively, he argued that, if the provision did not clearly extend the statute of limitations, the document was ambiguous and should be construed against Vital Earth. Forrest also answered the no-evidence motion for summary judgment with deposition testimony that the ladder was unsafe due to a slick surface and an improper foot clearance between the ladder and the side of the trailer and, therefore, Vital Earth was negligent in failing to provide a safe workplace and in breaching its duty to inspect for safety.

The trial court granted the motion for summary judgment on the sole ground that the statute of limitations had expired before Forrest filed suit.

Forrest contends in this appeal Vital Earth waived the two-year statute of limitations. Vital Earth contends in its cross-appeal that, in addition to granting its motion for summary judgment based on limitations, the trial court should have granted its motion based on no evidence that any failure by Vital Earth to provide a safe workplace was the proximate cause of Forrest's injuries and damages.

We cannot address Forrest's claim that Vital Earth waived the two-year statute of limitations, because this contention was raised for the first time on appeal. In Forrest's amended pleadings, and in his response to the motion for summary judgment, he contended Vital Earth was estopped from asserting the statute of limitations. He contended that Vital Earth made an affirmative representation that a three-year statute of limitations period applied and that he relied on that representation.

Waiver and estoppel are distinct, separate theories, and contentions based on one cannot be construed as contentions based on the other. Waiver and estoppel are listed separately in the Texas Rules of Civil Procedure (Tex.R. Civ. P. 94) and have been distinguished since the early common law. The court in Reliance Ins. Co. v. Dalton, 178 S.W. 966, 970 (Tex.Civ. App.-Austin 1915, writ ref'd), noted the differences between the two doctrines:

Waiver is the voluntary surrender of a right, estoppel is the inhibition to assert it from the mischief that has followed. Waiver involves both knowledge and intention, and estoppel may arise where there is no intent to mislead; waiver depends upon what one himself intends to do, estoppel depends upon what he caused his adversary to do; waiver involves the acts and conduct of only one of the parties, estoppel involves the conduct of both. A waiver does not necessarily imply that one has been misled to his prejudice or into an altered position, an estoppel involves this element. Estoppel results from an act which may operate to the injury of the other party, waiver may affect the opposite party beneficially. Estoppel may carry the implication of fraud, waiver does not.

Id.

The scope of review in an appeal from a summary judgment is necessarily limited. It is well recognized that a motion for summary judgment must expressly state the grounds on which it is made and will stand or fall on those grounds alone. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 339 (Tex.1993). Likewise, the answer or response to the motion must set forth the grounds on which the nonmovant relies to defeat the motion. Issues not expressly and timely presented by written answer or response may not be considered on appeal as grounds for reversal. See Tex.R. Civ. P. 166a(c); see also Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625 (Tex.1996); Abbott Labs., Inc. v. Segura, 907 S.W.2d 503, 507 (Tex. 1995) (Cornyn, J., concurring); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). Therefore, the nonmovant must, in a written answer or response to the motion, expressly present to the trial court those issues that would defeat the movant's right to a summary judgment, and failing to do so, may not later assign them as error on appeal. Clear Creek Basin Auth., 589 S.W.2d at 679. None of Forrest's arguments to the trial court could be construed as arguments based on waiver. He, therefore, has not preserved waiver as a basis to support his appeal.

Forrest's arguments to the trial court on estoppel, however, were adequately raised on appeal, and in order to obtain a just, fair, and equitable adjudication of the rights of the litigants, we will consider Forrest's estoppel argument.

Where complained-of error is readily apparent from the argument briefed, an appellate court can consider it. Pool v. Ford Motor Co., 715 S.W.2d 629, 632-33 (Tex.1986). The practice is to liberally construe the points of error in order to obtain a just, fair, and equitable adjudication of the rights of the litigants. Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982). An appellate court looks "not only at the wording of the points of error, but to the argument under each point to determine as best we can the intent of the party." Id. Forrest raised the estoppel theory in his response to Vital Earth's motion for summary judgment, and we can fairly say he also included that argument on appeal. While the wording of Forrest's point of error on appeal states that "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT AS THE DEFENDANT WAIVED THE TWO YEAR STATUTE OF LIMITATIONS," the discussion under that point of error argues the theory of estoppel. Forrest contends in his argument that the Benefit Plan summary was an affirmative representation that a three-year statute of limitations applied and that he relied on that representation when he withheld filing suit until nearly three years from the date of his injuries. Arguments regarding affirmative representations and reliance on those representations is clearly an argument on estoppel, not waiver.

The whole purpose for a point of error is obviously to notify not only the court, but the appellee of that of which the appellant is specifically complaining in order to give the appellee a fair opportunity to respond and notify the court of what appellate standards apply. S & A Rest. Corp. v. Leal, 883 S.W.2d 221, 227 (Tex. App.-San Antonio 1994), rev'd & remanded on other grounds, 892 S.W.2d 855 (Tex. 1995). We cannot say Vital Earth was not given fair notice of estoppel from Forrest's brief to this Court and from Forrest's amended pleadings and response to the motion for summary judgment in the trial court. In the interest of a just, fair, and equitable adjudication of the rights of the litigants, this Court will consider Forrest's argument that Vital Earth is estopped from asserting the two-year limitations period provided for in the statute. See Roberts v. Haltom City, 543 S.W.2d 75, 77 (Tex.1976) (finding by Texas Supreme Court that summary judgment for moving party must be reversed if evidence raised genuine fact issue as to estoppel, regardless of nonmoving parties' failure to specifically plead the theory).

Summary judgment is proper only when the movant establishes that no issue of material fact exists. Villages of Greenbriar v. Torres, 874 S.W.2d 259, 261-62 (Tex.App.-Houston [14th Dist.] 1994, writ denied). When summary judgment is sought on the ground of limitations, the movant bears the burden to establish the bar of limitations. Zale Corp. v. Rosenbaum, 520 S.W.2d 889, 891 (Tex.1975); Villages of Greenbriar, 874 S.W.2d at 262.

When the face of a motion for summary judgment shows the action is barred by limitations, the...