Orlando Salinas v. Octave Samuel and Meaux Surface Protection, Inc

Opinion issued May 3, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-11-00096-CV

———————————

Orlando Salinas , Appellant

V.

Meaux

Surface Protection, Inc. , Appellee

On Appeal from the 11th District Court

Harris County, Texas

Trial Court Case No. 2007-74589

MEMORANDUM OPINION

This is a

personal-injury suit stemming from a one-car accident that occurred when plaintiff-appellant

Orlando Salinas was a passenger in his supervisor’s vehicle travelling home to

Texas from a worksite in Louisiana. Salinas challenges the trial court’s granting summary

judgment in his employer’s favor. We

affirm.

Background

Salinas and his supervisor,

defendant Octave Samuel, were both employed by defendant Meaux

Surface Protection, Inc. during the 2006 timeframe that is relevant to this

suit. On September 23, 2006, Salinas was

a passenger in a vehicle driven by Samuel on Interstate-10 travelling from

Louisiana to Texas after they came in from working offshore. Samuel was drinking during this trip and

crashed into a wall in Orange, Texas.

Salinas was thrown from the vehicle and suffered serious injuries.

The parties disagree about whether

Samuel and Salinas were within the course and scope of their employment at the

time of the accident. Although it

usually provides its employees transportation from its site in Louisiana to

drop-off points at or near its employees’ homes, Meaux

claims that Salinas opted not to take the company-provided transportation

between his home in Houston and worksite in Louisiana. Instead, he rode with Samuel whenever they

worked together.

In contrast, Salinas contends that Meaux’s Safety Coordinator, Kevin Star, ordered him to ride

with Samuel from a Louisiana heliport to Houston. Salinas further claims that they were all on

the payroll during this drive, and that Meaux paid

for Samuel’s gasoline for the trip.

A. The LHWCA proceeding

In August 2007, Salinas filed a

claim for compensation with the U.S. Department of Labor under the Longshore Harbor Workers’ Compensation Act (LHWCA). Meaux argued in

response that (1) Salinas “was not within the course and scope of his

employment with the employer” at the time of the accident, and (2) Salinas’s

claim “does not meet the requirements for LHWCA jurisdiction.” After an informal conference, the Department

denied Salinas’s claim, finding that

Salinas does not have the

required situs for the occurrence of the 9-23-06 MVA

necessary to establish jurisdiction pursuant to the LHWCA. The public Interstate highway where the MVA occurred

does not have a maritime nexus to invoke LHWCA jurisdiction. . . . . Whether or

not Mr. Salinas has a claim for the 9-23-06 injury in another jurisdiction is

for the parties to determine.

B. The Underlying Lawsuit

Salinas sued Meaux

and Samuel in Harris County, alleging — among other things — that Samuel

was liable under theories of negligence and negligence per se. Salinas further contended that Samuel was

acting within the course and scope of his employment with Meaux ,

rendering Meaux vicariously liable for Salinas’s

injuries that were proximately caused by Samuel’s negligence and negligence per

se. Salinas also claimed that Meaux was directly liable through failure to properly train

and supervise Samuel, and because it negligently entrusted Samuel to drive

Salinas.

Salinas also pleaded equitable

estoppel, asserting that Meaux should be barred from

asserting workers’ compensation as an exclusive remedy because Meaux has previously taken the position that Salinas was

not within the course and scope of his employment at the time of the automobile

accident.

1. Meaux’s Motions for Summary Judgment

Meaux filed both

a no-evidence and a traditional motion for summary judgment. In the no-evidence motion, it argued that Salinas’s

arguments necessarily failed because there was “no evidence that Octave Samuel

and Orlando Salinas were within the course and scope of employment at the time

of the accident.” Accordingly, Meaux asserted, there is no evidence that it owed a duty to

Salinas. Meaux

also asserted that there was no evidence of at least one element of each of

Salinas’s claims.

In its traditional motion for

summary judgment, Meaux asserted that , assuming that all Salinas’s assertions were true, Salinas’s claims were all precluded by the workers’

compensation bar. Attached as summary-judgment

evidence were Meaux’s workers’ compensation policies

in Louisiana and Texas in force in September 2006 and employment records

demonstrating that Salinas was a Meaux employee on

the day of the accident. Meaux argued in its

motion that, because all of Salinas’s claims sounded in common-law negligence

and because all of Salinas’s claims were premised upon Salinas’s allegation

that he and Samuel were operating within the course and scope of their

employment, the claims would necessarily be barred by the workers’ compensation

bar.

2. Salinas’s Response

Salinas filed a combined response

to Meaux’s two motions. In response to the traditional motion, he

argued that Meaux’s reliance on the workers’

compensation bar should be barred by the doctrines of estoppel and res

judicata. Specifically, he argued that Meaux’s position in the LHWC proceedings that Salinas “was

on a leisurely drive home that he requested with his supervisor, and not in the

course and scope of his employment, which resulted in a final binding

determination that [Salinas] was not covered by LHWCA is inconsistent with Meaux’s position now that [Salinas] was in the course and

scope of this employment when he was traveling home and is therefore covered by

a state’s worker’s compensation plan.” Salinas

asserted that Meaux should not be permitted to “have

it both ways” and that its “inconsistent position in a legal proceeding that

resulted in a binding decision on the parties should preclude Meaux by the doctrine of equitable estoppel from a summary

judgment.” Finally, Salinas argued that Meaux had not filed all the required paperwork and notice

required under the workers’ compensation statutes in either Texas or

Louisiana.

In response to Meaux’s

no-evidence points, Salinas asserts that there is some evidence that he and Samuels

were acting within the course and scope of their employment, and that Samuels

was negligent.

3. The trial court’s judgment

The trial court granted Meaux’s traditional summary judgment on the workers’

compensation bar. Salinas nonsuited his

remaining claims against Samuels, rendering the trial court’s summary judgment

on his claims against Meaux final.

ISSUES ON APPEAL

Salinas appeals

from the trial court’s summary judgment identifying a single issue: “Whether a

defendant can take two (2) different legal and factual positions in 2 different

forums and leave plaintiff without a legal remedy at law.” His brief focuses on both equitable estoppel

and res judicata, so we interpret his issue statement as incorporating both of

those issues.

STANDARD OF REVIEW

We review the district court’s

summary judgment de novo. See Valence Operating Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005).

The standard governing a

traditional motion for summary judgment is well established: (1) the movant for

summary judgment has the burden of showing that no genuine issue of material

fact exists and that it is therefore entitled to summary judgment as a matter

of law; (2) in deciding whether there is a disputed material fact issue

precluding summary judgment, evidence favorable to the nonmovant

will be taken as true; and (3) every reasonable inference must be indulged in

favor of the nonmovant and any doubts resolved in the

nonmovant’s favor. See, e.g., Nixon v. Mr. Prop. Mgmt. Co. , 690

S.W.2d 546 , 548–49 (Tex. 1985).

When a defendant moves for summary

judgment and conclusively establishes the application of an affirmative defense

barring the plaintiff’s claim, the burden shifts to the plaintiff to raise a

fact issue on any affirmative defense to the application of the defendant’s

affirmative defense. E.g. , Am. Petrofina, Inc. v. Allen , 887 S.W.2d 829, 830 (Tex. 1994) (“Since

plaintiffs’ response was in the nature of an affirmative defense to Petrifina’s limitations claim, they could only have

defeated summary judgment with sufficient evidence to raise a fact question for

each of the elements of fraudulent concealment.”).

Under the “no-evidence summary

judgment” rule, the movant may move for summary judgment if, after adequate

time for discovery, there is no evidence of one or more essential elements of a

claim or defense on which the nonmovant would have

the burden of proof at trial. Tex. R. Civ. P . 166a( i ). The motion must

state the elements as to which there is no evidence. Id . The reviewing court must grant the motion unless the nonmovant produces summary judgment evidence raising a

genuine issue of material fact. Id .

Under the no-evidence summary judgment standard, the party with the burden of

proof at trial will have the same burden of proof in a summary judgment

proceeding. See, e.g. , Esco Oil & Gas, Inc. v. Sooner Pipe &

Supply Corp. , 962 S.W.2d 193 , 197 n.3 (Tex. App.—Houston [1st Dist.] 1998,

pet. denied).

EQUITABLE ESTOPPEL

Salinas argues that “ Meaux took the position for purposes of LHWCA litigation

that Salinas was not in the course and scope of his job and thus he was denied

coverage under LHWCA and then in the 11th District Judicial Court Meaux asserted that he was in the course and scope of

employment and state or federal workers compensation is his only remedy.” Allowing these two different positions,

according to Salinas, is unconscionable and should be barred by equitable estoppel.

In response, Meaux

denies that it has taken an inconsistent position. It acknowledges that its position before the

Department in the LHWCA was that neither Salinas nor Samuels was acting within

the course and scope of their employment.

It contends, however, that (1) its position in the LHWCA proceeding was

irrelevant to the Department’s determination that the LHWCA did not apply

because there was not a sufficient connection to a maritime situs ,

and (2) that it has not changed its position here; rather it properly assumed,

for purposes of summary judgment, that Salinas’s allegations about the course

and scope of employment were true.

Meaux also

argues that Salinas did not raise a fact issue on the equitable estoppel element

of detrimental reliance, given that Salinas was represented by his own counsel

during the LHWCA proceedings and when he decided to file suit in Harris County

and to not file a workers’ compensation claim.

See Douglas v. Moody Gardens, Inc. ,

No. 14-07-00016-CV, 2007 WL 4442617 , at *4 (Tex. App.—Houston [14th Dist.]

2007, no pet.) ( mem .

op.) ( employee

appealing summary judgment based on workers’ compensation bar failed to raise a

fact issue on equitable estoppel, in part because she was represented by

counsel such that she could not have relied on her employer’s earlier position

denying that she was injured in the course and scope of employment). Finally, Meaux

contends that equitable estoppel cannot be used to create a cause of action

that is otherwise barred by the Texas Workers’ Compensation Act. See Watson

v. Nortex Wholesale Nursery, Inc ., 830 S.W.2d

747, 751 (Tex. App.—Tyler 1992, writ denied) (holding that equitable estoppel

could not revive claim against employer that was abrogated by statute governing

workers’ compensation).

A. Applicable Law

“The elements of equitable estoppel

are: (1) a false representation or concealment of material facts made with the

intent that another party act on the false representation or silence, (2) the

false representation or concealment of material facts was made by a party with

knowledge of the facts, (3) the party to whom the representation was made or

from whom facts were concealed was without knowledge or the means of knowledge

of the real facts, and (4) detrimental reliance.” Steubner Realty 19, Ltd. v. Cravens Road 88, Ltd. ,

817 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.] 1991, pet. denied).

B. Analysis

Salinas’s equitable estoppel

argument is premised upon his assertion that Meaux

has taken inconsistent positions.

Specifically, Salinas complains that Meaux

argued in the LHWCA proceedings that he and Samuels were not acting in the

course and scope of their employment at the time of the accident and that, in Meaux’s summary-judgment briefing in the underlying case,

it takes the opposite position, i.e., that Salinas and Samuels were acting in

the course and scope of their employment.

We disagree.

Meaux acknowledges

that it argued in the LHWCA proceeding that Salinas and Samuel were not in the

course and scope of their employment.

That is consistent with its position in its no-evidence motion for

summary judgment. There it argues that

there “is no evidence that Octave Samuel and Orlando Salinas were within the

course and scope of employment at the time of the accident” and, thus, “no

evidence that Meaux owed any duty to Salinas.”

Meaux’s motion for

traditional summary judgment — in which

Salinas claims Meaux has taken a position that is

inconsistent with its LHWCA position — assumes the truth

of Salinas’s pleaded allegations that they were operating within the course and

scope of their employment for purposes of that motion. The motion makes that explicit, stating that,

“For purposes of this motion, Meaux will assume,

without admitting, the truth of Plaintiff’s allegation.” The motion then sets forth the dispute about whether

Salinas and Samuel were in the course and scope of their employment and

chronicles the evidence supporting both positions. It then argues that summary judgment is

appropriate regardless of which is true because (1) if Salinas and Samuel were not

acting in the scope of their employment, then Salinas has not pleaded any

grounds for liability, and (2) assuming that they were acting in the scope of their employment, all Salinas’s claims

are necessarily foreclosed by the workers’ compensation bar.

Meaux’s assuming

the truth of Salinas’s allegations for purposes of summary judgment was proper

and not inconsistent with its previous positions. Cf. Stanley v. Citifinancial Mortg . Co. ,

121 S.W.3d 811, 819 (Tex. App.—Beaumont 2003, pet. denied) (“Even assuming the

truth of [plaintiff’s] allegations, as we are required to do for the purpose of

reviewing summary judgment . . . .”). Thus,

without reaching Meaux’s arguments about why

equitable estoppel would not otherwise apply, we hold as a threshold matter

that the Salinas has not established that Meaux has

taken an inconsistent position for purposes of equitable estoppel. He thus did not raise a fact issue on

equitable estoppel.

RES JUDICATA

Salinas argues that Meaux “cannot dispute that in the Department of Labor

hearing on jurisdiction that it took the position that ‘[Salinas] was not

within the course and scope of his employment with the employer’ and that the

Labor Department issued a final judgment on the merits and was a venue of

competent jurisdiction.” Accordingly,

because the parties are the same and because the same claims were raised in the

LHWA proceeding, Salinas argues that Meaux’s summary

judgment should have been denied under the doctrine of res judicata.

Meaux responds that that no tribunal or

court has ever litigated the issue of whether Salinas was within the course and

scope of his employment. Rather,

the parties participated in an informal conference, and Salinas never requested

a referral to the Administrative Law Judge to challenge the Department’s

finding that the LHWCA did not apply. See Craven v. Director, Office of Workers

Comp. Programs , 604 F.3d 902, 907 (5th Cir. 2010)

(court lacked jurisdiction to hear appeal because claimant did not seek review

of informal conference with ALJ). In any

event, Meaux contends, the issue of whether Salinas

was within the course and scope of his employment was not litigated in the

informal conference, as the Department denied Salinas’s claim based on the lack

of a maritime nexis .

A. Applicable Law

The supreme court

has admonished that, “[c] ertainly in courts of law, a

claimant generally cannot pursue one remedy to an unfavorable conclusion and

then pursue the same remedy in another proceeding before the same or a

different tribunal.” Igal v. Brightstar

Info. Tech. Grp .,

Inc. , 250 S.W.3d 78, 86 (Tex. 2008).

“Res judicata bars the relitigation of claims

that have been finally adjudicated or that could have been litigated in the

prior action.” Id . (citing Barr v.

Resolution Trust Corp. , 837 S.W.2d 627, 628 (Tex.1992)). For res judicata to apply under Texas state

law, the following elements must be present: (1) a prior final judgment on the

merits by a court of competent jurisdiction; (2) the same parties or those in privity with them; and (3) a second action based on the

same claims as were raised or could have been raised in the first action. Citizens Ins. Co. of Am. v. Daccach , 217

S.W.3d 430, 449 (Tex. 2007). Thus,

a party may not pursue a claim determined by the final judgment of a court of

competent jurisdiction in a prior suit as a ground of recovery in a later suit

against the same parties. Tex.

Water Rights Comm’n v. Crow Iron Works , 582

S.W.2d 768, 771 (Tex. 1979).

Because Salinas argues that the

issues here were first decided in a federal tribunal, federal law controls the

determination of whether res judicata will bar the later state court

proceeding. See Eagle Props., Ltd. v. Scharbauer ,

807 S.W.2d 714, 718 (Tex. 1990). Similar

to Texas law, under federal law, res judicata will apply if: (1) the parties

are identical in both suits; (2) the prior judgment is rendered by a court of

competent jurisdiction; (3) there is a final judgment on the merits; and (4)

the same cause of action is involved in both cases. Id .

B. Analysis

Salinas has not brought forth a

prior final judgment on the merits of any issue that is the subject of the

underlying litigation. Thus, he failed

to raise a fact issue on res judicata.

We need not reach Meaux’s other arguments

about why res judicata does not apply.

CONCLUSION

We overrule

Salinas’s sole issue. We affirm the

trial court’s judgment.

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Brown.