Reversed and Remanded and Memorandum Opinion filed November 8, 2011.




                                         In The

                          Fourteenth Court of Appeals
                                 ___________________

                                  NO. 14-10-00756-CV
                                 ___________________

                         OTIS LEE HARRIS, SR., Appellant

                                            V.

                 ROCKING 8 TRANSPORTATION, INC., Appellee


                        On Appeal from the 55th District Court
                                Harris County, Texas
                          Trial Court Cause No. 2009-55141


                        MEMORANDUM OPINION

       This is an appeal from the granting of a motion for summary judgment. Because
we conclude the trial court erred when it granted appellee Rocking 8 Transportation, Inc.‘s
motion for summary judgment, we reverse and remand for further proceedings in
accordance with this opinion.


                      FACTUAL AND PROCEDURAL BACKGROUND

       Appellant filed suit against appellee on August 28, 2009. In his second amended
original petition, appellant alleged that sometime after April 1, 2004 he began working for
appellee as a truck driver. Appellant alleged appellee represented to him that it would
provide him with a lumbar support for use in the truck he drove for appellee. Appellant
further alleged the promised lumbar support was never provided to him. Appellant
alleged that as a result of appellee‘s failure to provide the lumbar support, after
approximately six months of driving trucks for appellee, he began experiencing lower back
pain. Finally, appellant alleged the lower back pain became so severe, he was forced to
stop driving a truck for appellee and take lower paying jobs. 1 In his second amended
original petition, appellant plead a single cause of action: breach of contract. According
to appellant, appellee breached the agreement to provide him with a lumbar support and
that as ―a direct and proximate result of [appellee‘s] breach, [appellant] has suffered the
following damages: [appellant] suffered a debilitating back injury which caused him to be
physically unable to work at his desired profession….‖

        Appellee eventually moved for summary judgment on appellant‘s cause of action.
Appellee argued that ―at all times material, [appellee] was a ‗subscriber‘ to the Texas
Workers‘ Compensation Act as that term is defined by the Texas Labor Code.‖ In support
of this contention, appellee attached a copy of a workers‘ compensation insurance policy
with the policy period commencing on April 1, 2004 and ending on April 1, 2005 (the
―Policy‖). Included in the Policy was a specific notice that the insurer would not renew
the Policy when it expired.2 Based on this single piece of summary judgment evidence,
appellee asserted it was ―entitled to summary judgment on its affirmative defense asserting
the statutory bar from civil suit afforded [appellee] by the exclusive remedy provision of
the Texas Workers‘ Compensation Act.‖



        1
          We include appellant‘s allegations as background to clarify the issues on appeal. We understand
that pleadings, such as appellant‘s second amended petition, do not normally constitute summary judgment
evidence. Laidlaw Waste Sys., Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); but see Holy
Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001) (holding that a judicial admission
made in a party‘s pleadings could support the granting of a summary judgment).
        2
            Appellee attached no other evidence to the motion for summary judgment.



                                                    2
       Appellant filed a response to appellee‘s motion for summary judgment in which he
argued his claim was not barred by the exclusive remedy provision of the Texas Workers‘
Compensation Act. Appellant attached three items to his summary judgment response.
First, appellant attached his affidavit. In his affidavit, appellant stated:

       2.     I was hired as a driver by [appellee], … to make runs within a 200
       mile radius of its terminal building. After a short while on the job, I was
       assigned to the unit that made [appellee‘s] Texas City run. On this run I
       would drive my assigned truck to the Dow Chemical Plant in Texas City,
       Texas to pick up large pieces of scrap metal. I would make this run at least
       two times a week during my normal work duties.

       3.    Prior to having to make this run, [appellee] agreed with me that it
       would retrofit its old Kenworth trucks with lumbar support seats.
       Furthermore, prior to having to make this run, I did not have any trouble with
       my back. However, [appellee] failed to do this even after repeated requests
       by me for it to do so.

 Second, appellant attached a copy of appellee‘s ―First Amended Answers to Plaintiff‘s
Interrogatories.‖   In answer to interrogatory 3, appellee answered ―[appellant] was
employed as a Truck Driver from April 26, 2004 through September 30, 2005, when he
voluntarily quit the company.‖ Finally, appellant attached his pay stub from appellee for
the week of August 18 through August 24, 2004.

       The trial court granted appellee‘s motion for summary judgment and this appeal
followed.

                                         DISCUSSION

       In a single issue on appeal, appellant challenges the summary judgment in favor of
appellee. According to appellant, appellee failed to meet its summary judgment burden
by proving each element of appellee‘s affirmative defense as a matter of law. More
specifically, appellant contends appellee failed to prove as a matter of law that appellant
was injured during the time period appellee proved it had worker‘s compensation
insurance: April 1, 2004 through April 1, 2005. We agree.

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I.       The Standard of Review

         Appellee moved for a traditional summary judgment. See Tex. R. Civ. P. 166a(c).
In the motion, appellee asserted it was entitled to summary judgment on the affirmative
defense that appellant‘s cause of action was barred by the exclusive remedy provision of
the Texas Workers‘ Compensation Act. See Tex. Lab. Code Ann. § 401.001 (Vernon
2006).

         In a traditional motion for summary judgment, the movant has the burden to show
there is no genuine issue of material fact and it is entitled to judgment as a matter of law.
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In determining whether
there is a genuine fact issue precluding summary judgment, evidence favorable to the
non-movant is taken as true and the reviewing court makes all reasonable inferences and
resolves all doubts in the non-movant‘s favor. Id. at 548–49. If there is no genuine issue
of material fact, summary judgment should issue as a matter of law. Haase v. Glazner, 62
S.W.3d 795, 797 (Tex. 2001). A defendant who conclusively negates at least one of the
essential elements of a plaintiff‘s cause of action is entitled to a summary judgment on that
claim. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798
(Tex. 2004). A defendant is entitled to summary judgment on an affirmative defense if
the defendant conclusively proves all of the elements of the affirmative defense.
Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). Once a defendant
establishes its right to summary judgment, the burden then shifts to the plaintiff to come
forward with summary judgment evidence raising a genuine issue of material fact.
Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The nonmovant has no
burden to respond to a summary judgment motion unless the movant conclusively
establishes each element of its cause of action as a matter of law. Rhone-Poulenc, Inc. v.
Steel, 997 S.W.2d 217, 222–23 (Tex. 1999). The trial court may not grant summary
judgment by default because the nonmovant did not respond to the summary judgment
motion when the movant‘s summary judgment proof is legally insufficient. Id. at 223.
                                             4
On appeal, the nonmovant need not have responded to the motion to contend the movant‘s
summary judgment proof is insufficient as a matter of law to support summary judgment.
Id.

        We review a trial court‘s summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).               We take all evidence favorable to the
nonmovant as true and indulge every reasonable inference and resolve any doubts in favor
of the nonmovant. Id. On appeal, the summary judgment movant still bears the burden
of showing there is no genuine issue of material fact and the movant is entitled to judgment
as a matter of law. Rhone-Poulenc, Inc., 997 S.W.2d at 223.

II.     Analysis

        On appeal appellant contends the trial court erred in granting appellee‘s motion for
summary judgment for two reasons. First, he asserts his cause of action against appellee
is a breach of contract action which is not barred by the exclusive remedy provision of the
Texas Workers‘ Compensation Act. Second, appellant contends the trial court erred
because appellee did not meet its summary judgment burden of proving as a matter of law
each element of its affirmative defense. Specifically, appellant argues there is a fact issue
on whether appellee was a subscriber under the Texas Workers‘ Compensation Act when
appellant‘s cause of action arose.3 In making this argument, appellant points to appellee‘s
answer to interrogatory 3 that appellant was employed as a driver for appellee from April
26, 2004 through September 30, 2005, a termination date more than five months after the
Policy expired.




        3
           In its response brief, appellee suggests appellant cannot make his second argument on appeal
because he did not make the same argument in his summary judgment response. While we agree with the
general principle cited by appellee, as we point out in the standard of review, a summary judgment
nonmovant, even one that did not file a response, can argue on appeal that the movant‘s summary judgment
proof is insufficient as a matter of law to support summary judgment.
                                                   5
       Because it is dispositive of this appeal, we turn first to appellant‘s second
argument.4 To be entitled to summary judgment, appellee was required to prove as a
matter of law that it was a workers‘ compensation subscriber at the time appellant‘s
allegedly job-related injury occurred. To accomplish this, appellee attached the Policy as
summary judgment evidence. There is no evidence in the summary judgment record
proving appellee was covered by a workers‘ compensation insurance policy after April 1,
2005. Indeed, a reasonable inference from the notice informing appellee the Policy would
not be renewed is that appellee was not a workers‘ compensation subscriber after April 1,
2005. There is also no evidence in the summary judgment record proving that appellant‘s
allegedly work-related injury occurred between April 1, 2004 and April 1, 2005.

       Appellee attempts to work around this failure of proof by asserting ―appellant,
through his own pleadings, has acknowledged the date of his cause of action.‖ While it is
true an opponent‘s pleadings can be a judicial admission, we conclude appellant‘s second
amended petition does not contain a judicial admission that can support the granting of
summary judgment in favor of appellee. See Houston First American Sav. v. Musick, 650
S.W.2d 764, 767 (Tex. 1983) (―Assertions of fact, not pled in the alternative, in the live
pleadings of a party are regarded as formal judicial admissions. Any fact admitted is
conclusively established in the case without the introduction of the pleadings or
presentation of other evidence.‖).

       Appellant‘s second amended petition does not assert a date when he was injured.
Appellant stated in his live pleading that appellee offered him a job on April 1, 2004.
Appellant does not state that he started working for appellee on that specific day.
Appellant claims he was injured six months after starting the ―Texas City run,‖ which he
started driving ―shortly after‖ he started working for appellee. Appellee asks this court to
conclude that these facts establish as a matter of law that appellant was injured between

       4
         Because we conclude appellee failed to prove as a matter of law it was entitled to summary
judgment on its affirmative defense, we do not reach and render no opinion on appellant‘s first ground.
                                                  6
April 1, 2004 and April 1, 2005. Because a pleading must be clear and unequivocal to be
a judicial admission, we decline that invitation. Id. Therefore, appellee cannot rely on
appellant‘s pleadings to meet its summary judgment burden.

       Next, appellee asserts the date of appellant‘s injury can be ascertained from an
examination of appellant‘s summary judgment response. In support of this argument,
appellee cites to a single page of the clerk‘s record. The referenced page is part of the
facts section of appellant‘s summary judgment response. Appellee then concludes it is
clear appellant‘s alleged injury occurred during the coverage period of the Policy. Once
again, appellee seeks out summary judgment evidence in the wrong place. ―It is well
settled that neither the motion for summary judgment, nor the response, even if sworn, is
ever proper summary judgment proof.‖ Quanaim v. Frasco Rest. & Catering, 17 S.W.3d
30, 42 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).

       Because appellee failed to meet its summary judgment burden, we hold the trial
court erred when it granted appellee‘s motion for summary judgment. Therefore, we
sustain appellant‘s issue on appeal.

                                       CONCLUSION

       Having sustained appellant Otis Lee Harris, Sr.‘s issue on appeal, we reverse the
judgment of the trial court and remand this case to the trial court for further proceedings
consistent with this opinion.




                                         /s/       John S. Anderson
                                                   Justice



Panel consists of Justices Anderson, Brown, and Christopher.

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