Carl Burleson v. Sharp Image Energy, Inc. and West Texas Energy Services, L.L.C. ( 2007 )

Opinion filed November 8, 2007

Opinion filed November 8, 2007

                                                                        In The

    Eleventh Court of Appeals

                                                                 ____________

                                                          No. 11-06-00069-CV

                                                    __________

                                      CARL BURLESON, Appellant

                                                             V.

                     SHARP IMAGE ENERGY, INC. AND WEST TEXAS

                               ENERGY SERVICES, L.L.C.,  Appellees

                                         On Appeal from the 118th District Court

                                                        Howard County, Texas

                                                   Trial Court Cause No. 43,737

                                              M E M O R A N D U M   O P I N I O N

Carl Burleson filed a personal injury suit against Sharp Image Energy, Inc. and West Texas Energy Services, L.L.C.  The trial court granted separate motions for summary judgment filed by Sharp and by West Texas.  We affirm.

Before we get to the merits of this case, we must discuss a point of concern.  Okon J. Usoro, an attorney from Houston, represented appellant at trial and in this court.  Mr. Usoro complained in his original brief that the trial court had a conflict of interest in the case.  Mr. Usoro further made the claim that the trial court failed to disclose this conflict of interest and that it failed to voluntarily recuse itself.  Therefore, reasons Mr. Usoro, there was a reasonable doubt as to the trial court=s impartiality.  Mr. Usoro alleges that the trial court=s conduct resulted in a violation of  ACanon 4(4) [sic] of the Code of Judicial Conduct.@ It is Canon 4(A)^[1] that Mr. Usoro actually quotes, and it contains this language:

A judge shall conduct all of the judge=s extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge=s capacity to act impartially as a judge; or

(2) interfere with the proper performance of judicial duties.

Mr. Usoro correctly states that appellees were tenants in a building owned by the trial court.  In his original brief, it is Mr. Usoro=s claim that the trial court Afailed to recuse himself, and failed to inform the lawyers of his financial interest with the Appellees, so that the lawyers, in particular Appellant=s lawyer, could either file a Motion to Recuse or continue the case with [the trial court]  as the presiding judge.@ It was rightfully claimed in a motion in response to Burleson=s initial brief that the recusal claims made in that brief were contrary to the truth and that a reporter=s record from a hearing on Burleson=s motion to transfer would bring that falsehood to light.  Burleson, through Mr. Usoro, filed a late response to the motion.  His response was to object to the filing of the previously unfiled reporter=s record.  We ordered that the record be filed.

The gap between Mr. Usoro=s claim and the reality of the record cannot be bridged.  The record, to the filing of which Mr. Usoro objected, reveals that the following statements were made by the trial court to the attorneys, including Mr. Usoro, in a preliminary hearing on a motion to transfer venue:

[THE COURT]:  Well, here=s the situation.  So, I guess, you and Mr. Usoro certainly need to know it.  And, apparently, Mr. Morgan has been down this path with me one time before.

I have a certain relationship with Sharp Image Energy and West Texas Energy, and the nature of that relationship is as follows:  I own a building north of town here.  It=s a commercial type building.  And they lease it from me.  They don=t pay near enough rent, so it=s not like, you know, I have the upper hand on it.  They=ve been there for three or four years.  Basically, they don=t really do much to the building.  They B I don=t even know why they continue leasing it.  They perform no functions there, that I know of, other than storing stuff.  But if they=re happy to continue leasing it, it=s fine with me.

They=re tenants.  There are not any problems.  We never had any problems one way or the other.  If they abandon the building, I can lease it for more than what they=re renting it for, you know.  And I guess, frankly staying in a lawsuit like this, the only detriment to me is I couldn=t very well raise the rent on them during the pendency or something like that for fear that somebody would say, AWell, they voluntarily paid me more rent.@

The rent is $300 a month.  It=s been that for about four years.  And I anticipate it will stay there until one of the two of us decide it=s no longer satisfactory.  That=s the extent of it.

I don=t have any B I know Mike Evans.  I know Vince Hatfield. And to say I know them, I know who they are.  If I see them on the street, I=ll speak to them.  I=ve never been in either of their homes.  We=ve never socialized together.  We have no business interest.  I have no financial interest in any of their investments, oil properties.  I never made an investment in anything like B I=m telling you the nature and extent of that relationship; and, that is, I own that building on the Snyder highway, and they are the tenants.

I have told plaintiffs and defendants that in the past.  In the past, it has never bothered Mr. Morgan.  It=s never bothered any other plaintiff, but I=m not going to go any further without divulging and disclosing the nature of that relationship.

You are now on notice, Mr. Usoro.  You know, you need to B yes, sir?

MR. LOCKE:  Sharp Image has no problem with that, Your Honor.  No objection.

THE COURT:  Well, it=s probably not fair, Mr. Usoro, to just say, AWell, what about you?@  I mean, you know, you just found [out] about it just now.  So I=ll not put you on the spot and say, AWhat do you want to do?@  But you do need to be thinking about that.

. . . .

. . .  I guess I can hold off ruling on that [the motion to transfer venue] until you tell me whether or not you=re willing for me to stay in the case or whether or not you wish me to get out.

MR. USORO:  Yes, sir.  Well, I guess the issue, Judge, is if you do retain venue here, will you be willing to recuse yourself from the case?

THE COURT:  Oh, I=m probably not going to be unwilling if the  request [is made] that I do so.  If somebody says, AWe want you to recuse yourself,@ I probably will do it.

. . . .

THE COURT:  After mediation, if it looks like it=s going to proceed to trial, you need to make an election as to whether or not you=re willing for me to stay in the case or whether or not you wish me to indicate your wish to recuse myself.

MR. USORO:  Yes, sir.

THE COURT:  In which event, I=ve indicated I probably will do that.

. . . .

THE COURT:  We=ll see after [the mediation] whether or not it looks like the trial is inevitable. And if so, you need to make your election about me staying on the case or not.

MR.USORO: Yes, sir.

Mr. Usoro never filed a motion to recuse the trial court.

At the beginning of the oral arguments, in an effort to allow Mr. Usoro to bridge the gap between his statement and the reality of the record, we asked him to explain to us how he could make such a claim regarding the trial court in the face of the stark record before us.  Mr. Usoro maintained that it was a mistake, one made in the throes of pressure surrounding completion of a brief within the time limits.

We suggested to Mr. Usoro that in light of the record in contrast to his claim at the very least he should apologize to the trial court for making such a claim in a public arena; he agreed.  Mr. Usoro also asked that he be given an opportunity to file an amended brief in order that he might remove that language from his brief.  We allowed him that opportunity.

This court subsequently received a copy of a letter that Mr. Usoro sent to the trial court.  In his  letter, Mr. Usoro apologizes to the trial court and admits his mistake.  However, he makes the claim in that letter that he brought the problem to the attention of this court.  To the contrary and because we were concerned about the integrity behind the claim in comparison to the record, this court brought the matter to Mr. Usoro=s attention.

Mr. Usoro filed an amended brief, and he deleted his claim that the trial court failed to disclose its relationship with appellees.  However, he continued to assert his claim that the trial court failed to voluntarily recuse itself from this case.  Mr. Usoro acknowledges that he never asked the trial court to recuse itself, even though the trial court issued that invitation to him.

It is the repeated misrepresentation of the record and the false impression thereby cast upon the trial court that is troublesome to this court. Nevertheless, the allegations were that of appellant=s attorney, not those of appellant.  Normally, a party is bound by the actions of that party=s lawyer, but in fairness we will consider the merits of this appeal.

West Texas and Sharp were involved in drilling an oil well in Dawson County. Burleson was working at the drilling site on August 13, 2000, when Jose Franco intentionally struck him in the head with a wrench.  Burleson received workers= compensation benefits as a result of his injuries.  On August 13, 2004, Burleson filed suit against Sharp and West Texas.  Burleson amended his petition on September 19, 2005, and alleged numerous causes of action including negligent hiring, fraud, negligent misrepresentation, and assault.  In the motions for summary judgment filed by West Texas and by Sharp, both argue that Burleson=s claims were barred by both the statute of limitations and by the exclusivity provisions of the Texas Workers= Compensation Act.  The trial court granted both motions, and Burleson filed this appeal.

At the beginning of oral argument, we asked the parties to address whether we had jurisdiction.  Both parties addressed that question during argument and have briefed the issue.  Texas appellate courts have jurisdiction only over final judgments.  Cherokee Water Co. v. Ross, 698 S.W.2d 363, 365 (Tex. 1985).  There can be only one final judgment.  Tex. R. Civ. P. 301.  A judgment is final for purposes of appellate jurisdiction if it disposes of all issues and parties in a case and no further action is required to determine the controversy.  Houston Health Clubs, Inc. v. First Court of Appeals, 722 S.W.2d 692, 693 (Tex. 1986);  North East Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 895 (Tex. 1966).  If a summary judgment order appears to be final and disposes of all claims or parties, the judgment should be treated as final for purposes of appeal.  Inglish v. Union State Bank, 945 S.W.2d 810, 810‑11 (Tex. 1997); Mafrige v. Ross, 866 S.W.2d 590, 592 (Tex. 1993); Fisher v. Yates, 953 S.W.2d 370, 374 (Tex. App.CTexarkana 1997), writ den=d, 988 S.W.2d 730 (Tex. 1998).

There are two judgments in this case.  The trial court entered an order titled AFinal Judgment@ on February 24, 2006, in which it granted West Texas=s motion for summary judgment.  In the judgment, the trial court stated that all relief Anot expressly granted is denied.@ On the same day, the trial court entered an order titled AFinal Judgment and Order Granting Summary Judgment.@ In that order, the trial court granted Sharp=s motion for summary judgment and dismissed Burleson=s claims.  The order further states:  AThis Final Judgment and Order of the Court disposes of all claims and causes of action asserted by [Burleson] . . . is appealable and shall be the Final Judgment and Order of the Court.@

It is not necessary that all parties and issues be disposed of in a single document.   Mafrige, 866 S.W.2d at 591 n.5.; Fisher, 953 S.W.2d at 375.  Where an interlocutory order is entered disposing of one defendant, that order becomes final and there is a final judgment when a subsequent order is entered disposing of the remaining defendants.  H. B. Zachry Co. v. Thibodeaux, 364 S.W.2d 192, 193 (Tex. 1963).  In the present case, the two orders were entered on the same day without reference to which was the Asubsequent@ order.  The orders do not reference each other but collectively dispose of all parties and all issues and merge to form a final appealable judgment.  See Webb v. Jorns, 488 S.W.2d 407, 408 (Tex. 1972); Fisher, 953 S.W.2d at 375.  This court has jurisdiction in this appeal.

As we have stated, Burleson complains in his first issue that the trial court erred when it did not recuse itself.  There was no motion for recusal filed. Burleson waived his right to complain about recusal when he failed to file a motion to recuse.  Tex. R. Civ. P. 18a, 18b; Beard v. Beard, 49 S.W.3d 40, 51 (Tex. App.CWaco 2001, pet. denied); Wright v. Wright, 867 S.W.2d 807, 811 (Tex. App.CEl Paso 1993, writ denied).  Burleson=s first issue on appeal is overruled.

In his second issue on appeal, Burleson claims that the trial court erred when it did not rule on a motion to transfer venue.  Burleson is the one who selected venue in Howard County.  He did not first nonsuit this case and then refile in another county.  See Geochem Tech Corp. v. Verseckes, 962 S.W.2d 541 (Tex. 1998).  Further, Burleson failed to get a ruling from the trial court and has, therefore, waived any error.  He had the burden to obtain a ruling regarding venue.  See Tex. R. Civ. P. 87(1);  Carlile v. RLS Legal Solutions, Inc., 138 S.W.3d 403, 408 (Tex. App.CHouston [14 Dist.] 2004, no pet.).  The second issue on appeal is overruled.

In his third issue on appeal, Burleson argues that the trial court erred when it denied his motion for leave to file late responses to the motions for summary judgment.  We review a trial court=s ruling on a motion for leave to file a late response to the motions for summary judgment for an abuse of discretion.  Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 686 (Tex. 2002).  A trial court abuses its discretion when it acts without reference to any guiding rules or principles.  Carpenter, 98 S.W.3d at 687;  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241‑42 (Tex.1985).  A trial court should grant a motion for leave to file a late response to a summary judgment when a litigant establishes good cause for failing to timely respond by showing that (1) the failure to respond was not intentional or the result of conscious indifference but, rather, was the result of accident or mistake and (2) the late response will occasion no undue delay or otherwise injure the party seeking summary judgment.  Carpenter, 98 S.W.3d at 688.

Sharp filed its motion for summary judgment on December 9, 2005.  West Texas filed its motion for summary judgment on December 14, 2005.  The motions were scheduled for hearing on February 1, 2006.  At Burleson=s attorney=s request, the hearing was rescheduled to February 14, 2006, so that the attorney could attend an interview in an immigration case in which he was the attorney. Burleson=s responses were due February 7, 2006.  In his motion for leave to file late responses, Burleson=s attorney stated that he planned to Aput finishing touches to the responses@ on February 6 and forward the responses by overnight courier.  Burleson=s attorney told the trial court that he became ill on February 6, the day before the responses were due, and that, therefore, he could not work on the responses as planned. Nevertheless, on February 7 the attorney prepared a motion for extension of time within which to file late responses to the motions for summary judgment. The motion was placed in the hands of a courier and was filed by the clerk of the trial court on February 8.  Burleson=s attorney attached a letter from a medical clinic in which someone from the clinic excused him from work from February 6 to February 8.

Burleson=s motion for leave to file late responses shows that his counsel became ill the day before the responses were due.  The motions for summary judgment were filed December 9 and December 14.  Burleson had ample time within which to prepare responses but waited until the day they were due to ask for an extension.  Burleson did not meet his burden to show that his failure to respond was not intentional or the result of conscious indifference but, rather, was the result of accident or mistake and that allowing the late responses would not cause undue delay or otherwise injure Sharp and West Texas.  We cannot say that the trial court abused its discretion when it denied Burleson=s motion for leave to file late responses to the motions for summary judgment. Burleson=s third issue on appeal is overruled. 

 In his fourth issue on appeal, Burleson argues that summary judgment was improper if based upon the statute of limitations.   In the appeal from a summary judgment case, we determine whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law.   Tex. R. Civ. P. 166a(c);  KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999); City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979). We accept as true all evidence that supports the nonmovant, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in favor of the nonmovant.   Rule 166a(c); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).  To be entitled to summary judgment on an affirmative defense such as limitations, the movant must conclusively prove all of the elements of the defense.   Univ. of Houston v. Clark, 38 S.W.3d 578, 580 (Tex. 2000).  The trial court specifically stated in its judgment for Sharp Energy that the claims asserted by Burleson Aare barred, as a matter of law.@ In its summary judgment for West Texas, the trial court found that the motion Ais in all respects granted.@  When a trial court does not state the reasons for its ruling, the judgment will be upheld upon any theory alleged in the motion.  Harwell v. State Farm Mut. Auto. Ins. Co., 896 S.W.2d 170, 173 (Tex. 1995).

Burleson was injured on August 13, 2000, when he was struck on the head with a wrench. He filed suit against Sharp on August 13, 2004.  Tex. Civ. Prac. & Rem. Code Ann. ' 16.003(a) (Vernon Supp. 2006) contains a provision that a person must bring suit for personal injury not later than two years after the day the cause of action accrues.  Burleson attempts to avoid the effects of the statute of limitations by contending that the statute was tolled due to fraudulent concealment. 

Accrual of a cause of action is deferred in two types of cases:  (1) those involving fraud or fraudulent concealment and (2) those where the injury is Ainherently undiscoverable@ and is Aobjectively verified.@  S.V. v. R.V., 933 S.W.2d 1, 6 (Tex. 1996); Computer Assocs. Int=l, Inc. v. Altai, Inc., 918 S.W.2d 453, 456 (Tex. 1996).  The Texas Supreme Court has said that the commission of fraud or fraudulent concealment works to estop a defendant from asserting limitations as a defense because Aa person cannot be permitted to avoid liability for his actions by deceitfully concealing wrongdoing until limitations has run.@ S.V., 933 S.W.2d at 6; Slusser v. Union Bankers Ins. Co., 72 S.W.3d 713, 719  (Tex. App.CEastland 2002, no pet.). Fraudulent concealment tolls the statute of limitations until the injured party, using reasonable diligence, discovered or should have discovered the injury.  KPMG Peat Marwick, 988 S.W.2d at 750.

The elements of fraudulent concealment are (1) the existence of the 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 the deception.  Glover v. Union Pac. R.R. Co., 187 S.W.3d 201, 217 (Tex. App.CTexarkana 2006, pet. denied); Mitchell Energy Corp. v. Bartlett, 958 S.W.2d 430, 439 (Tex.  App.CFort Worth 1997, pet. denied).  Fraudulent concealment requires actual knowledge by the defendant that a wrong has occurred and Aa fixed purpose to conceal the facts necessary for the plaintiff to know that it has a cause of action.@ Vial v. Gas Solutions, Ltd., 187 S.W.3d 220, 230-31  (Tex. App.CTexarkana 2006, no pet.); Santanna Natural Gas Corp. & Women=s Natural Gas Corp. v. Hamon Operating Co., 954 S.W.2d 885, 890 (Tex. App.CAustin 1997, pet. denied).

Burleson contends that Sharp and West Texas concealed the underlying tort of negligent hiring.  Burleson specifically argues that  Sharp and West Texas shared employees and management personnel and that by doing so Acreated a web of deception that confused their employees as to who their correct employer was.@ Burleson further states that he signed documents indicating he was employed by West Texas but that he performed services for Sharp; he drove trucks with the Sharp logo.   Burleson contends that West Texas and Sharp concealed the fact that he was employed by Sharp and that the employee who struck him, Franco, was employed by West Texas thereby preventing him from filing suit against West Texas.

Burleson=s complaints do not show fraudulent concealment on the part of Sharp or West Texas.  Burleson=s confusion as to who his employer was does not show that Sharp or West Texas concealed the existence of any underlying tort of negligent hiring.

Moreover, 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 summary judgment evidence raising a fact issue on each element of the fraudulent concealment defense.  KPMG Peat Marwick, 988 S.W.2d at 748.  There is no summary judgment proof of fraudulent concealment.  Burleson=s fourth issue on appeal is overruled.

In a related issue, his fifth, Burleson argues that the trial court erred if it held against him on the statute of limitations issue because it found that he failed to use due diligence in serving Sharp and West Texas.  The four-year statute of limitations does not apply to these claims.  Sharp was not served until November 17, 2004.  The record does not indicate that West Texas was served. Even if the four-year statute of limitations applied to Burleson=s claims, he has not shown that he exercised due diligence in serving Sharp and West Texas.  See Murray v. San Jacinto Agency, Inc., 800 S.W.2d 826, 830 (Tex. 1990).  Burleson=s fifth issue on appeal is overruled.

In his sixth and seventh issues on appeal, Burleson argues that the trial court erred in granting summary judgment if summary judgment was based upon the exclusivity provision of the Texas Workers= Compensation Act.  In their motions for summary judgment, Sharp and West Texas stated that the exclusivity provision of Tex. Lab. Code Ann. ' 408.001(a) (Vernon 2006) barred Burleson from filing suit against them. Section 408.001(a) contains the following language:

Recovery of workers= compensation benefits is the exclusive remedy of an employee covered by workers= compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.

In his original petition, Burleson stated that he was an employee of West Texas and that Franco was an employee of Sharp.  In his amended petition, Burleson stated that he was an employee of Sharp and that Franco was an employee of West Texas.  On appeal, Burleson contends that the two companies are alter egos and create confusion as to whom his actual employer was.  Burleson argues that, because the companies shared employees, vehicles, management, and were so Aintertwined,@ the exclusivity provision of Section 408.001(a) is not applicable.

Burleson signed documents indicating that he was employed by West Texas.  Pursuant to a written contract, West Texas, as subcontractor, was in the process of drilling a well in Dawson County on behalf of Sharp, general contractor.  Sharp provided workers= compensation insurance to West Texas as its subcontractor.  See Tex. Lab. Code Ann. ' 406.123(a) (Vernon 2006). Burleson received workers= compensation benefits.  If the trial court based its summary judgment on the exclusivity provisions of the Labor Code, it did not err.  Burleson=s sixth and seventh issues on appeal are overruled. 

In his eighth and final issue on appeal, Burleson argues that West Texas is liable for the intentional acts of Franco.  Burleson first contends that, pursuant to the doctrine of vicarious liability, West Texas is liable for the acts of Franco.  Burleson does not cite any authority in support of his argument.  See Tex. R. App. P. 38.1(h). Burleson also argues that West Texas and Sharp were negligent in hiring Franco.  Burleson cites Tex. Lab. Code Ann. ' 417.001(a) (Vernon 2006), which states:

 An employee or legal beneficiary may seek damages from a third party who is or becomes liable to pay damages for an injury or death that is compensable under this subtitle and may also pursue a claim for workers= compensation benefits under this subtitle.

Neither Section 417.001(a) nor the summary judgment evidence supports Burleson=s argument.  Burleson=s eighth issue on appeal is overruled. 

All of Burleson=s arguments on appeal have been considered, and all are overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

November 8, 2007                                                                   CHIEF JUSTICE

Panel consists of:  Wright, C.J.,

Strange, J., and Hill, J.^[2]

---

^[1]Tex. Code Jud. Conduct, Canon 4(A), reprinted in Tex. Gov=t Code Ann., tit. 2, subtit. G app. B (Vernon 2005).

^[2]John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth sitting by assignment.