Emilio Rodriguez, Individually and as Next Friend of Minors, Alejandro Rodriguez, Mario Rodriguez, Amy Rodriguez, Alyssa Rodriguez, Adam Rodriguez and Amadee Rodriguez v. Sinclair Contractors, Inc.,--Appeal from 165th District Court of Harris County

Reversed and Remanded and Memorandum Opinion filed October 27, 2005

Reversed and Remanded and Memorandum Opinion filed October 27, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-01006-CV

____________

EMILIO RODRIGUEZ, INDIVIDUALLY AND AS NEXT FRIEND OF MINORS, ALEJANDRO RODRIGUEZ, MARIO RODRIGUEZ, AMY RODRIGUEZ, ALYSSA RODRIGUEZ, ADAM RODRIGUEZ, AND AMADEE RODRIGUEZ, Appellants

V.

SINCLAIR CONTRACTORS, INC., Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 03-31984-A

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

Emilio Rodriguez (ARodriguez@), individually and as next friend of minors, Alejandro Rodriguez, Mario Rodriguez, Amy Rodriguez, Alyssa Rodriguez, Adam Rodriguez, and Amadee Rodriguez, appeals from the trial court=s grant of summary judgment favoring Sinclair Contractor=s, Inc. (ASinclair@). Rodriguez had been hired by a staffing company and assigned to work at Sinclair=s facility. He was injured while performing his job duties and sued Sinclair for negligence. In granting summary judgment, the trial court held that Rodriquez=s lawsuit was barred by the exclusive remedy provision of the Texas Workers= Compensation Act.

On appeal, Rodriguez contends that (1) Sinclair=s motion for summary judgment was not supported by its pleadings, (2) there is a fact issue regarding whether Rodriguez was Sinclair=s employee, (3) there is a fact issue regarding whether the Staff Leasing Services Act applies, and (4) Sinclair waived application of the exclusive remedy provision. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.4. We reverse and remand.

Discussion

The parties are familiar with the facts, so we will not recount them in detail here. In his first issue, Rodriguez contends that Sinclair=s motion for summary judgment was not supported by its pleadings. We review a trial court=s interpretation and application of the law under a de novo standard. Barber v. Colorado I.S.D., 901 S.W.2d 447, 450 (Tex. 1995). In its motion, Sinclair argued that Rodriguez=s negligence action was barred by the exclusive remedy provision of the Texas Workers= Compensation Act. Tex. Lab. Code Ann. ' 408.001(a) (Vernon 1996). Under this provision, Arecovery 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.@ Id. A defense based on this statutory provision is an affirmative defense. Quanaim v. Frasco Restaurant & Catering, 17 S.W.3d 30, 43 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). Affirmative defenses must be specifically plead. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991).

Sinclair acknowledges that it did not plead the exclusive remedy provision in its answer. However, it argues that (1) its motion for summary judgment is a pleading that placed the defense openly in issue, and (2) alternatively, Rodriguez waived his objection to the failure to plead. We disagree with both assertions.

The Texas Supreme Court has expressly rejected the idea that a motion for summary judgment constitutes a pleading or that including an affirmative defense in such a motion is sufficient to plead the defense. See In re S.A.P., 156 S.W.3d 574, 576 n.3 (Tex. 2005); Roark, 813 S.W.2d at 494-95. Thus, Sinclair=s first argument is without merit.

Regarding Sinclair=s second argument, the supreme court has stated that an unpleaded affirmative defense may serve as a basis for granting summary judgment when it is raised in the summary judgment motion and the opposing party does not object to the lack of a proper pleading. Roark, 813 S.W.2d at 494-95. Sinclair claims that Rodriguez did not sufficiently object to the lack of a pleading. Rodriguez=s response to the motion for summary judgment states: AMovant has failed to file pleadings with this Court asserting an affirmative defense of statutory immunity. Therefore, Movant=s Motion for Summary Judgment is not supported by its pleadings.@ (emphasis in original). Clearly, Rodriguez objected to the lack of a pleading. Sinclair complains, however, that (1) the objection was buried in the response, (2) it was not mentioned in the response=s ASummary of Plaintiff=s Position,@ and (3) it was not raised again in Rodriguez=s subsequent response to Sinclair=s reply to Rodriguez=s first response. Although the first two complaints are accurateCthe objection was somewhat buried and the summary did not mention itC this does not diminish the fact that the objection clearly, directly, and unambiguously informed the trial court and Sinclair of the substance of Rodiguez=s complaint. See Tex. R. App. P. 33.1(a). With this objection in the response, it cannot be said that the issue was tried by consent. See Roark, 813 S.W.2d at 494-95. Regarding the third complaint, it is inconsequential that the objection was not raised again in Rodriguez=s subsequent response; there was no need to because to Sinclair=s reply, whichthe response was in response to, because the issue was not addressed by Sinclair=s reply. didnot address the issue For the foregoing reasons, Sinclair=s second argument is without merit. We sustain Rodriguez=s first issue. Consequently, we need not address his three remaining issues.

We reverse the judgment of the trial court and remand for further proceedings in accordance with this opinion.

/s/ Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed October 27 , 2005.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.