Court of Appeals of Texas,

Dallas.

Durrel N. HAIR, Jr., Appellant,

v.

The PILLSBURY COMPANY, Thelma Horton, Individually and in her capacity as Assistant Human Resource Manager and Church & Dwight Co., Inc., Appellees.

No. 05–01–01354–CV.

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July 15, 2002.

Before Justices LAGARDE, FitzGERALD, and RICHTER.

OPINION

Opinion By Justice FitzGERALD.

*1 Durrel N. Hair appeals a summary judgment granted in favor of appellees The Pillsbury Company (“Pillsbury”), Thelma Horton (“Horton”), and Church & Dwight Co., Inc. (“Church & Dwight”). In five issues, Hair contends the trial court erred in granting appellees’ motion. For the reasons that follow, we affirm the trial court’s judgment in part and reverse it in part.

Background

Pillsbury employed Hair as a maintenance supervisor and operations production manager for approximately sixteen years. During that time, Hair worked in a Pillsbury facility where dough for baked goods was manufactured. Hair had been afflicted with asthma his entire life and took medicine for that condition. In this lawsuit, Hair alleged that he began having difficulty breathing at the plant in November 1997. At that time, Hair first went to see a physician who was a “breathing specialist,” Dr. Andrew Wade. Dr. Wade determined excessive flour dust and other airborne contaminants at the plant—specifically a baking-soda based cleaning product used to “sand-blast” the plant—had severely exacerbated Hair’s asthma. Dr. Wade suggested Hair avoid exposure to those irritants. Hair continued working at the plant and continued to see Dr. Wade during the early months of 1998. In February of 1998, Hair asked Pillsbury management for a special respirator; he was told he could obtain and use the respirator, but Pillsbury would not pay for it. Sometime during the spring of 1998, Hair testified, he concluded Pillsbury was not going to help him, and he began keeping notes of his conversations with management. On May 22, 1998, Dr. Wade gave Hair a note, which Hair gave in turn to his supervisor at Pillsbury. In the note, Dr. Wade told Hair he should work in an area where he would not be exposed to dust, and he reminded Hair that he had encouraged Hair many times in the past to attempt to locate a job in another area at the plant. On June 14, 1998, Hair went to the emergency room with breathing problems and was taken off work by his doctor. On July 10, 1998, Dr. Wade wrote a letter directly to Hair’s supervisor stating Hair’s condition would worsen to the point of disability if he continued to work around dust. Hair attempted to return to work on July 13, 1998, but after one and one-half days his health forced him to leave work for good.

After he left Pillsbury, Hair was offered a job in the stockroom, but he rejected the offer, saying that—although there would be less dust in the stockroom—there would still be too much for his weakened lungs. Hair maintained that the only Pillsbury job that would have been sufficiently dust-free for him was in the waste water area, but when a job in that area opened up, Pillsbury gave the job to someone it alleged was more experienced than Hair.

Also after he left Pillsbury, Hair applied for and received short term disability. At the time, appellee Horton was a human resources representative at Pillsbury. Hair alleges Horton told him his medical condition was not work-related and that even if it were work-related, he could only file a claim for disability or workers’ compensation, not for both. Hair further alleges that Horton initially refused to give him the forms for a compensation claim. She later gave him the forms, and he applied, but the Texas Workers’ Compensation Commission denied Hair’s claim as non-occupational. Hair did not appeal this denial of benefits. Hair later received long term disability benefits, and eventually he was placed on full disability by Social Security.

*2 Hair filed this lawsuit June 14, 2000, alleging claims against Pillsbury, Horton, and Church & Dwight.¹ Pillsbury and Horton filed a motion for summary judgment on all of Hair’s claims, relying upon Hair’s deposition testimony and exhibits. The motion asserted Pillsbury and Horton were entitled to judgment as a matter of law on the following grounds: (1) Hair’s claims were preempted by the exclusive remedy of the Workers’ Compensation Act, and his assertion of a claim for intentional infliction of emotional distress was insufficient to invoke an exception to that preemptive act; (2) Hair’s allegations of intentional infliction of emotional distress were insufficient to support recovery; (3) Hair’s common law claims were preempted by the Texas Commission on Human Rights Act; (4) and Hair’s negligence, strict liability and negligent misrepresentation claims were all barred by the applicable statute of limitations. Church & White filed a motion to join their co-defendants’ motion for summary judgment on the ground of limitations and included Hair’s claim of breach of warranty—alleged in the petition against Church & Dwight only—within its limitations ground.

Hair responded to the motion, relying upon his own affidavit, a list of other Pillsbury workers who, he alleged, also suffered injury because of plant environment issues, Dr. Wade’s July 10, 1998 letter, and a September 1999 Citation and Notification of Penalty to Pillsbury from the Occupational Safety and Health Commission. The trial court granted the motion and dismissed Hair’s claims against all three defendants with prejudice. This appeal followed.

Standard of Review

Appellees filed a traditional summary judgment motion, and we review it under well-settled standards. See Tex.R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.1993); Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 23 (Tex.1990); Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex.App.-Dallas 1998, no pet.). The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972). A defendant moving for summary judgment must either (1) disprove at least one element of the plaintiff’s theory of recovery, or (2) plead and conclusively establish each essential element of an affirmative defense. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex.1979); Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 657 (Tex.App.-Dallas 1992, no writ). When, as in this case, the trial judge grants summary judgment without specifying the basis for his ruling, we affirm the judgment if any of the movant’s theories are meritorious. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex.1989); Orozco, 975 S.W.2d at 394.

Claims at Issue

*3 As a preliminary matter, we must clarify what claims have been pleaded in this case and against whom they have been pleaded. The petition lacks clarity. However, no defendant filed special exceptions seeking clarification. When there are no special exceptions, we construe a petition liberally in favor of the pleader. Stone v. Lawyers Title Ins. Corp., 554 S.W.2d 183, 186 (Tex.1977). We look to the pleader’s intendment, and we will uphold the pleading even if some element of a cause of action has not been specifically alleged. Roark v. Allen, 633 S.W.2d 804, 809 (Tex.1982). Every fact will be supplied that can reasonably be inferred from what is specifically stated. Id. at 810. However, a petition is only sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim; the opposing party requires information sufficient to enable him to prepare a defense. Id.

With those understandings, we conclude in the first instance that Hair’s petition sufficiently states the following claims or theories of recovery:

• negligence related to his alleged personal injury, urged against “Defendants,” which we shall read to include all three appellees;²

• breach of warranty, urged against Church & Dwight;

• res ipsa loquitur related to his personal injury, urged against all three appellees;

• strict liability related to his personal injury, urged against all three appellees;

• gross negligence related to his personal injury, urged against all three appellees; and

• negligent misrepresentation related to his qualification to file for workers’ compensation, urged against Pillsbury and Horton.

Other claims and theories are less clear. We address them separately as necessary.

Intentional Infliction of Emotional Distress

Hair titles paragraph XIV of his petition “Intentional Infliction of Emotional Distress”; that paragraph says in its entirety: “Plaintiff would show that as a result of the occurrence made the basis of this lawsuit, he has suffered mental anguish and emotional harm.” Such a pleading utterly fails to set forth the elements of a claim for intentional infliction of emotional distress. Of more concern at this point is the fact that the claim is not urged against any one defendant or any group of defendants. Because we are bound to read the claim liberally, we conclude Hair probably intended to plead this claim against all three appellees. However, because the pleading sets forth no additional facts within this claim, referring only to “the occurrence in question,” we conclude the claim only gives notice of a claim based on the facts related to his personal injury that are clearly pleaded in the petition.

Civil Conspiracy

In paragraph X of the petition, Hair clearly pleads a theory of gross negligence related to his personal injury. In the same paragraph, Hair pleads that appellees fraudulently concealed from him material information concerning the dangers of his workplace. (The defense of fraudulent concealment is addressed infra.) Within this same paragraph, Hair attempts to allege a civil conspiracy between the appellees. However, it is not clear whether the allegations are intended to describe a conspiracy surrounding the claim of gross negligence, or a conspiracy surrounding the defensive theory of fraudulent concealment, or both. Because we are charged with reading the petition liberally, we will presume Hair intended the civil conspiracy allegations to broaden the impact of both his affirmative gross negligence claim and his defensive fraudulent concealment theory. In both instances, the allegations relate to his personal injury claim.

Defenses to Limitations

*4 Anticipating a defensive argument that his claims were time-barred, Hair pleaded two defenses to the bar of the statute of limitations, the discovery rule and fraudulent concealment. Neither defense is given its own heading or paragraph; instead, each is placed in the middle of a paragraph concerning an affirmative claim. However, we are bound to construe the pleadings liberally, and so we conclude Hair has sufficiently pleaded the defensive theories of discovery rule and fraudulent concealment.

Fraud

In his response to appellees’ motion for summary judgment, Hair asserted inter alia that: “Pillsbury acted fraudulently …”; “… fraudulent acts are not barred by the [Workers’ Compensation] act”; and “Plaintiff’s fraud claims are governed by the four-year statute of limitations.” On appeal, Hair argues that he specifically pleaded fraud, citing to the page of his petition that refers to fraudulent concealment. That portion of the pleading states in its entirety:

Defendants entered into a conspiracy to withhold material information from Plaintiff about the hazardous workplace, chemicals in the workplace, and the proper precautions to protect employees’ health. The acts of Defendant conspirators constitute fraudulent concealment and/or fraudulent misrepresentation which proximately caused injury to Plaintiff. Defendants’ acts and omissions amount to a total disregard of Plaintiff’s rights, which constitute civil conspiracy and gross negligence as those terms are defined in law.

This is not a pleading of an affirmative claim for fraud. There are no allegations of misrepresentation or of reliance. Instead, there are allegations that appellees conspired to keep from Hair the knowledge necessary to identify the dangers to his health in the workplace. Fraudulent concealment acts as an equitable estoppel against a defendant asserting the statute of limitations. The theory asserts the defendant knew a wrong occurred, had a fixed purpose to conceal the wrong, and did conceal the wrong from the plaintiff. Shah v. Moss, 67 S.W.3d 836, 841 (Tex.2001). Fraudulent concealment tolls limitations until the plaintiff discovers the wrongdoing or could have discovered the wrongdoing with reasonable diligence. Id. Reading the petition as liberally as we can, we conclude Hair intended to plead the defensive theory of fraudulent concealment, not an affirmative claim of fraud. We stress that in reaching this conclusion, we are not identifying a defective pleading of fraud; instead, we are identifying the absence of a pleading of fraud.

Discrimination/Constructive Discharge

Finally, the petition asserts that Pillsbury constructively discharged Hair because he suffered a work-related injury and attempted to recover benefits for that injury. However, in Hair’s response to the summary judgment motion and in his brief to this Court, Hair denies that he has pleaded a claim for discrimination or has sought any relief pursuant to the Texas Labor Code. Given those denials, we conclude no claim for discriminatory conduct was pleaded in this case against any appellee.

Joinder by Church & Dwight

*5 In his fifth issue, Hair argues the trial court erred in granting summary judgment to Church & Dwight because a ruling was never made on its motion to join the other appellees’ motion for summary judgment. This argument is spurious. The trial court’s order granting summary judgment and dismissing Hair’s case begins with the following sentence:

On this day came on to be considered the Motion for Summary Judgment filed by Defendants The Pillsbury Company and Thelma Horton, to which Defendant Church & Dwight Co., Inc. was granted leave to join. (Emphasis added.)

The trial court granted the motion to join and reduced that ruling to writing. We resolve Hair’s fifth issue against him.

Statute of Limitations

All appellees pleaded the affirmative defense of statute of limitations. Church & Dwight’s motion to join the summary judgment motion was based solely on the ground of limitations. Accordingly, we address this summary judgment ground first. When a defendant moves for summary judgment based upon the affirmative defense of statute of limitations, the defendant must conclusively establish the bar of limitations, and if the plaintiff asserts a tolling provision, the defendant must conclusively negate the application of the tolling provision. Jennings v. Burgess, 917 S.W.2d 790, 793 (Tex.1996). Pillsbury and Horton moved for summary judgment on limitations grounds on a number of Hair’s claims; each of those claims is governed by a two-year statute of limitations. See, e.g ., Tex. Civ. Prac. & Rem.Code Ann. § 16.003(a) (Vernon Supp.2002) (personal injury); GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 619 (Tex.1999) (intentional infliction of emotional distress); see also Stevenson v. Koutzarov, 795 S.W.2d 313, 318 (Tex.App.-Houston [1st Dist.] 1990, writ denied) (civil conspiracy). Church & Dwight included Hair’s claim for breach of warranty in its joinder motion; the statute of limitations for breach of warranty is four years. Hyundai Motor Co. v. Rodriguez ex rel. Rodriguez, 995 S.W.2d 661, 668 (Tex.1999).

The question of when a cause of action accrues is a question of law for the court. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex.1990). For purposes of the application of limitation statutes, a cause of action can generally be said to accrue when the wrongful act effects an injury, regardless of when the plaintiff learned of the injury. Id. Hair argues his claims did not accrue until July 10, 1998, when Dr. Wade addressed his second note concerning Hair’s condition to Pillsbury management. Appellees argue Hair’s claims accrued in November of 1997, when he first went to see Dr. Wade with breathing complaints. Appellees’ argument is persuasive: the record indicates from the fall of 1997 forward Hair was aware his breathing problems stemmed from the flour dust and cleaning material in the air at the plant. Hair counters that he was not aware how sick he would become in late 1997. However, a cause of action accrues when the potential plaintiff knows he is injured, regardless of whether he understands the nature and extent of his injuries. See Stewart v. Stanley Bryan Oldsmobile–Buick–Pontiac–GMC, Inc., 883 S.W.2d 273, 274 (Tex.App.-Corpus Christi 1994, writ denied).

*6 The record certainly establishes Hair was aware he had been injured and should not be working in the dusty environment by May 22, 1998, when he received a writing containing that information from Dr. Wade. By that point in time Hair had been seeing Dr. Wade for some six months. He had asked for a special respirator, and his request had been denied. Finally, he had decided the company was not going to help him, and he had started keeping notes of his conversations with management. It appears, therefore, that Hair’s personal injury claim must have accrued, at the latest, by May 22, 1998.

But Hair argues his claim accrued later because appellees’ conduct was in the nature of a “continuing tort.” A continuing tort involves both continuing wrongful conduct and continuing injury. Upjohn Co. v. Freeman, 885 S.W.2d 538, 542 (Tex.App.-Dallas 1994, writ denied). In that instance, the cause of action accrues when the continuing wrongful acts cease. Id. However, the doctrine of continuing tort, with its extension of accrual date, is rooted in a plaintiff’s inability to know that the ongoing conduct is causing him injury. When a plaintiff discovers his injury and its cause, then the rationale for extending the accrual date no longer applies, and the limitations period begins to run with his discovery. Id. at 544.

As we have discussed, Hair has pleaded two defenses to the limitations bar: the discovery rule and fraudulent concealment. These defenses protect a plaintiff who does not, and cannot, know that he has a claim, either because the claim is inherently undiscoverable or because the defendant has taken steps to conceal material information about the claim. In both instances, the limitations period is tolled until the plaintiff discovers (or could have discovered with reasonable inquiry) his injury or its cause. Estate of Stonecipher v. Estate of Butts, 591 S.W.2d 806, 809 (Tex.1979). In this case, however, the undisputed summary judgment evidence shows that Hair became acutely aware of both his injury and the hazards in his workplace between November 1997 and May 1998. Thus, Hair cannot benefit from either of these tolling doctrines.

We conclude Hair’s claims related to his personal injury accrued at the latest by May 22, 1998. He filed his original petition on June 14, 2000. Accordingly Hair’s claims based on the following legal theories, all of which carry two-year statutes of limitations, are time-barred: negligence (including res ipsa loquitur and gross negligence), strict liability, intentional infliction of emotional distress, and civil conspiracy.³ The trial court correctly granted summary judgment on each of these claims as to all appellees.

Limitations was the sole ground upon which Church & Dwight moved for summary judgment on Hair’s breach of warranty claims. However, because the statute of limitations for a breach of warranty claim is four years, Hair’s claim against Church & Dwight for breach of warranty is not time-barred. The trial court incorrectly granted summary judgment on the breach of warranty claim. We resolve this portion of Hair’s third issue in his favor.

Preemption by Workers’ Compensation Act

*7 Hair’s remaining claim against Pillsbury and Horton is purportedly based on negligent misrepresentation. However, Hair’s allegations, in their entirety, state:

Plaintiff would show that Defendants Pillsbury and Horton represented in writing and verbally that Plaintiff was not qualified to file for workers’ compensation. Plaintiff relied upon said representations which proximately caused Plaintiff to lose valuable rights and benefits.

These allegations speak to nothing more than appellees’ own evaluation that Hair’s asthma was not a work-related injury that would be covered by the workers’ compensation system. Under the Texas Workers’ Compensation Act, an employer is authorized to contest the cause of alleged on-the-job injuries and the compensability of certain injuries. Continental Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 452 (Tex.1996). Moreover, despite appellees’ negative evaluation of Hair’s claim, the record establishes they did process Hair’s application for workers’ compensation benefits in a timely fashion. Those benefits were denied, but Hair did not appeal that determination. He has lost any right to challenge that decision. Nothing in Pillsbury’s or Horton’s negative evaluation of Hair’s claim suffices to remove this claim from the province of the Workers’ Compensation Act, which is Hair’s exclusive remedy for any work-related injury. See McAlister v. Medina Elec. Co-op., Inc., 830 S.W.2d 659, 663 (Tex.App.-San Antonio 1992, writ denied) (act was exclusive remedy for worker claiming negligent infliction of emotional distress, even if worker’s claim was ultimately not covered by act).

We conclude the Workers’ Compensation Act provided Hair’s exclusive remedy for his negligent misrepresentation claim. Accordingly, the trial court did not err in granting summary judgment on this claim.

Conclusion

We have reviewed appellant Hair’s pleading and summary judgment response with an exceptionally liberal eye. Nevertheless, we conclude all of his claims against Pillsbury and Horton are barred by the applicable two-year statutes of limitations or by the preemptive effect of the Texas Workers’ Compensation Act. As to those parties, we affirm the trial court’s judgment.

However, appellant’s claim for breach of warranty is not barred by the applicable four-year statute of limitations, which was the only ground on which Church & Dwight challenged the claim. Accordingly, as to this single claim against Church & Dwight, we resolve Hair’s third issue in his favor. As to that claim, we reverse the trial court’s judgment and remand this case for further proceedings.

Given this resolution, we need not address any of Hair’s remaining issues.

	Footnotes
1		Hair’s petition in addressed is some detail infra.
2		In at least one of his claims (see reference to negligent misrepresentation claim infra ), Hair specifies two defendants against whom he urges a claim. Thus, we presume his intention was to include all three appellees when he speaks simply of “Defendants .”
3		This list encompasses all of Hair’s claims against Pillsbury and Horton except negligent misrepresentation and all of his claims against Church & Dwight except breach of warranty.