Court of Appeals of Texas, Houston (1st Dist.).

Jonathan C. LEWIS, Appellant,

v.

WESTERN LITHOGRAPH COMPANY, Appellee.

No. 01-97-00470-CV.

|

April 29, 1998.

On Appeal from the 234th District Court, Harris County, Texas, Trial Court Cause No. 96-17238.

Panel consists of Chief Justice SCHNEIDER, and Justices HEDGES and NUCHIA.

OPINION

SAM NUCHIA, Justice.

*1 Appellant Jonathan C. Lewis sued appellee Western Lithograph Company (“WLC”) for intentional injuries he received from chemicals he was exposed to during his employment at WLC. The trial court rendered summary judgment in favor of WLC. We reverse in part and affirm in part.

BACKGROUND

Lewis was a lithographic film assembler for WLC. On April 4, 199, Lewis filed a worker’s compensation claim alleging that he had sustained an occupational injury on or about April 4, 1994 related to exposure to chemicals used by WLC. After a benefit contested case hearing (BCCH), the BCCH hearing officer determined that Lewis did not sustain an injury on or about April 4, 1994, and the appeals panel affirmed that decision. Lewis then appealed that decision to the 167th District Court which held that Lewis did not sustain an injury on April 4, 1994.

On April 3, 1996, Lewis filed a suit alleging that WLC intentionally exposed him to chemicals and that he was injured before April 4, 1994. Western filed its motion for summary judgment alleging: (1) the “exclusive remedy” provision in Tex. Lab.Code Ann. § 408.001(a) (Vernon 1996) barred Lewis from recovery of damages allegedly sustained in the course and scope of his employment; (2) Lewis’s claims were barred by collateral estoppel since there was already a judicial finding that he had not sustained a compensable injury on or about April 4, 1994 in the course and scope of his employment with Wester; (3) Lewis could not prove an essential element of a cause of action for civil conspiracy to deny worker’s compensation benefits; (4) the duty of good faith and fair dealing is a nondelegable duty owed by the workers’ compensation carrier and not WLC; (5) Lewis was not a “consumer” under the Deceptive Trade Practices Act; (6) there is no common-law duty of good faith and fair dealing; and (7) the Labor Code prevented Lewis’s recovery of exemplary damages. Lewis requested an extension of time to file a response, but, this was denied. The trial court granted WLC’s motion for summary judgment.

Lewis raises three points of error.

DISCUSSION

Standard of Review

A party moving for summary judgment has the burden of proving there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Mayer v. State Farm Mut. Auto. Ins. Co., 870 S.W.2d 623, 624 (Tex.App.-Houston [1st Dist.] 1994, no writ). A defendant is entitled to summary judgment on the plaintiff’s cause of action if the evidence disproves as a matter of law at least one element of the plaintiff’s claim. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991); White v. Wah, 789 S.W.2d 312, 315-16 (Tex.App.-Houston [1st Dist.] 1990, no writ). In deciding whether there is a disputed material fact issue precluding summary judgment, we accept the evidence that favors the nonmovant as true and indulge all reasonable inferences and resolve all doubts in favor of the nonmovant. Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.1995). We will affirm the summary judgment if any of the theories advanced in the motion is meritorious. Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

Intentional Conduct

*2 In his first and third points of error, appellant contends that the trial court erred in granting WLC’s motion for summary judgment because his claim was for intentional conduct and there was no evidence which would preclude his suit under the exclusive remedies provision of the Texas Worker’s Compensation Act. WLC argues that Lewis is not entitled to the use of the intentional conduct exception because there was no “specific intent” in this case.

As WLC concedes, specific intent means that the actor desires to cause the consequences of his act, or that he believes that the consequences are substantially certain to result. Reed Tool v. Copelin, 689 S.W.2d 404, 406 (Tex.1985) (emphasis added). The affidavit of John Bobbitt, president of WLC, makes the conclusory assertion that “Chemicals used by Western Lithograph Company are necessary to the printing process and are not used to cause injury.” (Emphasis added.) This affidavit is insufficient as a matter of law to disprove that WLC believed that the consequences were substantially certain to result. Because WLC did not disprove specific intent, it was not entitled to summary judgment on Lewis’s claims of intentional conduct. Accordingly, it was error for the trial court to have rendered summary judgment.

We sustain Lewis’s first and third points of error.

Collateral Estoppel

In his second point of error, Lewis contends that the trial court erred in rendering summary judgment because his action was not collaterally estopped by the 167th District Court’s judgment in the worker’s compensation suit. The 167th District Court’s judgment in the worker’s compensation suit recited that Lewis received no injury “on April 4, 1994.” Lewis points out that the claims brought in his subsequent action were for the cumulative injuries he received “prior to April 4, 1994.” WLC argues that notwithstanding the language in the 167th District Court’s judgment, the district court affirmed the decision of the TWCC Appeals panel and the BCCH officer’s decision¹ that held that Lewis did not sustain an injury “on or about April 4, 1994.”

A judgment is final for the purposes of issue preclusion despite the taking of an appeal unless what is called an appeal actually consists of a trial de novo. Scurlock Oil Co. v. Smithwick, 724 S.W.2d 1, 6 (Tex.1986). Although the jurisdiction of the district court over worker’s compensation suits is appellate in nature, the trial in such cases is de novo. Paradissis v. Royal Indem. Co., 496 S.W.2d 146, 150 (Tex.Civ.App.-Houston [14th Dist.] 1973), aff’d, 507 S.W.2d 526 (Tex.1974); Ankrom v. Dallas Cowboys Football Club, Ltd., 900 S.W.2d 75, 77 (Tex.App.-Dallas 1995, writ denied). As a result, the decision of the TWCC appeals panel and the BCCH officer’s decision are not final and do not collaterally estop Lewis. The decision of the 167th District Court that Lewis did not suffer an injury “on April 4, 1994” is the final judgment in this case. Because Lewis’s petition only claims damages for injuries before April 4, 1994, this judgment does not collaterally estop Lewis’s suit.

*3 Accordingly, WLC was not entitled to summary judgment on a theory of collateral estoppel. We sustain appellant’s second point of error.

WLC’s Remaining Grounds for Summary Judgment

When a trial court’s judgment does not specify the grounds for the ruling, the summary judgment may be affirmed on any meritorious theory advanced in the motion. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989). Thus, the party seeking to overturn a summary judgment based on several grounds must assign error to each ground or the summary judgment will stand on any omitted ground. Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970). These general rules, however, apply only to grounds associated with a single cause of action. If grounds associated with alternative causes of action are not challenged, those theories of recovery are abandoned and the remaining causes of action may be challenged by assigned error. Fetty v. Miller, 905 S.W.2d 296, 299 (Tex.App.-San Antonio 1995, writ denied); Wofford v. Blomquist, 865 S.W.2d 612, 613 n. 1 (Tex.App.-Corpus Christi 1993, writ denied) (citing Malooly, 461 S.W.2d at 121).

Because Lewis has not addressed the propriety of the trial court’s ruling on his claims for civil conspiracy, breach of the duty of good faith and fair dealing, and exemplary damages, he has abandoned these theories. Accordingly, he has waived any error, and we affirm the summary judgment on those grounds. Tex.R.App.P. 38.1(g), (h); Fetty, 905 S.W.2d at 299.

We affirm the judgment in part, reverse the judgment in part, and remand the case to the trial court.

	Footnotes
1		This decision is not in the record and its terms can only be ascertained from the appeals panel opinion.