Court of Appeals of Texas, Tyler.
ANTONIO MUNOZ ASERRADERO, LLC AND ANTONIO MUNOZ, APPELLANTS
v.
JERRY THOMAS, APPELLEE
NO. 12-25-00047-CV
|
Opinion delivered March 11, 2026.
APPEAL FROM THE 2ND JUDICIAL DISTRICT COURT CHEROKEE COUNTY, TEXAS
Appeal from the 2nd District Court of Cherokee County, Texas (Tr.Ct.No. 2022-050108)
Panel consisted of Worthen, C.J., Hoyle, J., and Davis, J.
MEMORANDUM OPINION
BRIAN HOYLE Justice
*1 Antonio Munoz Aserradero, LLC and Antonio Munoz, Individually, (collectively Appellants) appeal the trial court’s judgment rendered in favor of Appellee Jerry Thomas. Appellants raise five issues on appeal. We affirm.
BACKGROUND
In 2022, Antonio Munoz Aserradero, LLC (AMA) owned a sawmill in Rusk, Texas. Grant Ivie, who worked at the sawmill, arranged for Thomas, his brother-in-law, to work at the sawmill. Thomas was supposed to begin working on Monday, May 2, but he overslept and did not show up to begin work until the following morning. When he arrived, he spoke to Munoz, who, according to Thomas, told him, [W]e will try you out. If you like it, we will talk about employment. For now, we will train you, and if you don’t like it, it is like you have never even been here.”
Ivie showed Thomas how to operate the slab edger. Thomas was provided work gloves and spent the morning operating the slab edger. After he took a break for lunch, Thomas returned to the same workstation and resumed operating the slab edger. Within about ten minutes, Thomas was injured when, as he described it, the machine grabbed his arm, after he placed his hand in close proximity to the moving, chain mechanism despite the warning sign affixed to the slab edger which warned, “Keep Hand Clear[.]” Sawmill employees transported Thomas to a local hospital for treatment, and the incident was reported to AMA’s workers’ compensation carrier, Texas Mutual Insurance Company (Texas Mutual).
Munoz testified that a paycheck for Thomas’s work that day was issued the following Friday. Ivie purportedly delivered the check, but Thomas denies he received it and there is no evidence it was deposited or cashed. The pay stub indicates that Thomas was issued a check for gross pay of $75.00, with standard federal withholdings for Social Security and Medicare.
Texas Mutual opened a claim the same day as Thomas’s injury. It paid his medical expenses under the policy, along with 110 indemnity payments, which began that month and continued even after Thomas filed the underlying lawsuit.
Thomas filed suit against AMA and Munoz for negligence. In his suit, he alleged that he was not an employee but rather, was an independent contractor or invitee. He further alleged that Appellants failed to provide a safe workplace. Appellants answered and asserted, among other things, that Thomas’s causes of action were barred by the exclusive-remedy provision of the Texas Workers’ Compensation Act (TWCA) and estoppel.
The matter proceeded to a jury trial. At the close of evidence, Appellants moved for a directed verdict, in which they argued that there is no evidence, which supports Thomas’s theory that he was an independent contractor or non-employee and that the facts conclusively established an employment relationship, which barred his claims pursuant to the exclusive-remedy provision of the TWCA. The trial court denied the motion.
Defendants also sought to introduce evidence of Thomas’s receipt of workers’ compensation benefits and evidence they argued suggested that he used marijuana on the day of his injury. The trial court excluded both categories of evidence, granted Thomas’s motions in limine and ultimately declined to admit such evidence.
*2 Appellants also made objections to the jury charge and submitted written requests at the charge conference for instructions on exclusive remedy, judicial estoppel, and election of remedies. The trial court declined to include these requested instructions.
The jury returned a 10–2 verdict in Thomas’s favor and awarded him $4,500,000.00 in damages. In determining percentage of responsibility, the jury found AMA 40% responsible, Munoz 40% responsible, and Thomas 20% responsible. The trial court rendered judgment in accordance with the jury’s verdict. Appellants filed a motion to disregard certain jury findings and to enter a take-nothing judgment, as well as a motion for new trial. The trial court denied each of these motions. This appeal followed.
DIRECTED VERDICT – EXCLUSIVE-REMEDY PROVISION
In their first issue, Appellants argue that the trial court erred in denying their motion for directed verdict based on the exclusive-remedy provision of the TWCA.
Standard of Review
The standard of review for the denial of a directed verdict is a legal sufficiency or “no evidence” standard of review. Mauricio v. Castro, 287 S.W.3d 476, 478 (Tex. App.–Dallas 2009, no pet.); Brookshire Bros., Inc. v. Wagnon, 979 S.W.2d 343, 351 (Tex. App.–Tyler 1998, pet. denied). In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the fact finding, crediting favorable evidence if reasonable persons could, and disregarding contrary evidence unless reasonable persons could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005).
A directed verdict for a defendant may be proper in two situations: when a plaintiff fails to present evidence raising a fact issue essential to the plaintiff’s right of recovery, or if the plaintiff either admits or the evidence conclusively establishes a defense to the plaintiff’s cause of action. Prudential Ins. v. Fin. Review Servs, 29 S.W.3d 74, 77 (Tex. 2000); Mauricio, 287 S.W.3d at 479.
Governing Law
The TWCA is the exclusive remedy for non-intentional, “work-related injuries” of an employee, and exempts the employer, its agents, and its employees from common-law liability claims based on negligence or gross negligence. See TEX. LAB. CODE ANN. § 408.001(a) (West 2006); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985); Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App.–Houston [1st Dist.] 2011, no pet.). The exclusive-remedy provision protects the employer in exchange for prompt remuneration to the employee who is relieved of the burden of proving the employer’s negligence. Warnke, 358 S.W.3d at 343; Hulshouser v. Tex. Workers’ Comp. Ins. Fund, 139 S.W.3d 789, 792 (Tex. App.–Dallas 2004, no pet.).
The exclusive-remedy provision is an affirmative defense that the defendant must plead and prove. Warnke, 358 S.W.3d at 343; see Exxon Corp. v. Perez, 842 S.W.2d 629, 630–31 (Tex. 1992); AMS Const. Co. v. K.H.K. Scaffolding Houston, Inc., 357 S.W.3d 30, 43 (Tex. App.–Houston [1st Dist.] 2011, no pet.). To demonstrate that a common-law claim is barred by the TWCA, the defendant must show that the injured worker was (1) its employee at the time of the work-related injury and (2) covered by workers’ compensation insurance. See Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 476–77 (Tex. 2005); Warnke, 358 S.W.3d at 343. Once these requirements are satisfied, the exclusive-remedy provision is triggered and all the employee’s claims of work-related negligence and gross negligence are barred. See TEX. LAB. CODE ANN. § 408.001(a); see also Reed Tool, 689 S.W.2d at 406.
*3 The TWCA defines “employee” as a “person in the service of another under a contract of hire, whether express or implied, or oral or written.” TEX. LAB. CODE ANN. § 401.012(a) (West 2006). An employer is “a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.” Id. § 401.011(18) (West 2006). “For the purpose of workers’ compensation law, the employer-employee relationship may be created only by a contract.”1 Waldrep v. Texas Emplrs. Ins. Assoc., 21 S.W.3d 692, 698 (Tex. App.–Austin 2000, pet. denied).
The elements of a contract are: (1) an offer; (2) acceptance; (3) a meeting of the minds; (4) a communication that the parties consented to the terms; (5) execution and delivery of the contract with the intent that it become mutual and binding; and (6) consideration. G.D. Holdings, Inc. v. H.D.H. Land & Timber, L.P., 407 S.W.3d 856, 861 (Tex. App.–Tyler 2013, no pet.). For a contract to be formed, the minds of the parties must meet with respect to the subject matter of the agreement and all its essential terms. Id. A contractual provision dealing with payment is always an essential element or a material term. Id.
Whether a contract was formed is ordinarily a question of fact. See Parker Drilling Co. v. Romfor Supply Co., 316 S.W.3d 68, 72 (Tex. App.–Houston [14th Dist.] 2010, pet. denied). Implying the elements of an agreement from the conduct of the parties requires factual determinations. See P. McGregor Enters. Inc. v. Denman Bldg. Prods, Ltd., 279 S.W.3d 717, 723 (Tex. App.–Amarillo 2007, pet. denied). However, when the intent of the parties to be bound is clear and unambiguous, contractual formation may be determined as a matter of law. See Castano v. San Felipe Agric. Mfg., & Irr. Co., 147 S.W.3d 444, 449 (Tex. App.–San Antonio 2004, no pet.).
Discussion
*4 In the instant case, Appellants argue that the evidence conclusively established that Thomas was an employee of the sawmill at the time of the accident.2 In support of this contention, they maintain that the undisputed facts reflect that Thomas was offered work at the sawmill by Munoz through Ivie. Thomas agreed to begin work on Monday, May 2, 2022, but failed to show up when he overslept and arrived at the sawmill the following morning. Thomas was trained by existing employees, issued work gloves, and assigned to the slab edger where he worked throughout the morning. He took a lunch break, then returned to the same station where he was injured shortly after he resumed work. They also point out that Thomas identified AMA as his employer in medical forms he filled out after the accident. He later described his job in Hospitality Health ER records as “worked a wood mill in Jacksonville,” indicated that his injury was “work related,” and selected “WC” as the type of insurance applicable to his visit. Appellants further note that Thomas testified that he expected to be paid for his work and followed instructions from sawmill employees throughout the day. They also relate that a payroll check was issued to Thomas the Friday following the accident, the paystub for which reflected that deductions were made for Social Security and Medicare. Lastly, Appellants emphasize that Thomas received more than 100 indemnity payments and medical benefits under AMA’s workers’ compensation policy, even after he was represented by counsel and filed the underlying suit.
In response, Thomas argues that he did not enter into a contract of hire with Appellants. Instead, he contends that when he arrived at the Sawmill, it was to “try out” for a job opportunity. In support of this contention, he cites to his trial testimony, wherein he stated as follows:
Q [W]hat happened when you first got to the sawmill?
A. We went to talk to Mr. Munoz, and I said my name is Jerry Thomas. He said okay, … we will try you out. If you like it, we will talk about employment. For now, we will train you, and if you don’t like it, it is like you have never even been here.
Q. What was your understanding of that conversation?
A. It was trying me out [.]
….
Q. Did Antonio Munoz ever tell you how much you were going to be paid?
A. No, sir.
Q. Did anyone?
A. No.
Q. Did they, in fact, say the opposite that they would test it out and then talk money?
A. Yes, sir.
Thomas further points out that Munoz testified that he never discussed the specific terms of payment with Thomas. And Thomas confirmed in the following excerpt that Ivie never told him what the pay rate would be:
Q. The rate of pay is 12.50, isn’t it?
A. Yes, sir.
Q. That’s what Grant told you your rate of pay was going to be, right?
A. No, sir.
Q. Grant didn’t tell you that on the Monday you were supposed to show up for work?
A. No, he did not.
Q. He didn’t tell you the Friday before you were supposed to show up for work?
A. No, he did not.
Q. He didn’t tell you that the Tuesday that you actually showed up to work, right?
A. No, he did not
….
Q. Did you have an expectation to get paid?
A. I was there to try to get a job.
Thus, Thomas argues that because there was no meeting of the minds as to whether he was to be paid for his work that day or merely was “trying out” for a job, there is no conclusive evidence of a contract for hire. See G.D. Holdings, Inc., 407 S.W.3d at 861.
In their reply brief, Appellants re-urge that Thomas testified that he expected to be paid for his work and, in so doing, cite to Tex. Emp’rs Ins. Assoc. v. Burrell, 564 S.W.2d 133, 134 (Tex. Civ. App.–Beaumont 1978, writ ref’d n.r.e.), for the proposition that “workers are not volunteers if they expect compensation, even absent a formal agreement.” But based on our reading of Burrell, mere expectation of remuneration was not the standard set forth by the court.3 See id. Instead, the court set forth the longstanding rule that “[o]ne who assumes a service in Texas of his own free will without any express or implied promise of remuneration is a ‘volunteer’ and not an ‘employee.’ ” Id. (citing Nobles v. Tex. Indemnity Ins. Co., 24 S.W.2d 367, 369 (Tex. Com. App. 1930)). The court went on to discuss the case of Associated Employers Lloyds v. Gibson, 245 S.W.2d 738, 739 (Tex. Civ. App.–Eastland 1951, writ dism’d), as follows:
*5 In [Gibson], the injured plaintiff testified to Cherry (the superintendent), “I could fix that if you want me to.” Cherry replied, “O.K.” The court said the record revealed the injured plaintiff’s hope of reward for the proffered work was that the superintendent (Cherry) would give him a part-time job. Citing Nobles, supra, the court held this was insufficient to establish that plaintiff was an “employee” under the Act, and that remuneration is a necessary element in a contract of hire under the Act. The Nobles case, supra, has been cited by our Texas Supreme Court with approval. See Shell Oil Co. v. Reinhart, 375 S.W.2d 717, 719 (Tex. 1964).
Turning to the case before it, the court noted that (1) Burrell worked forty hours a week for a company for a number of years, (2) his son was a logging contractor with another company with several employees, (3) for several years, when Burrell had time-off, he worked with his son and his son’s employees in the woods for two or three days a week, (4) he received no pay, (5) he took direction from his son just as other employees did, (6) his son supplied him with gasoline, parts, and tires, and (7) Burrell’s purpose in undertaking this time-off work with his son was to have a job with his son waiting for him when he retired in four years. See Burrell, 564 S.W.2d at 134–35. Ultimately, the court held that the enumerated facts amounted to “some evidence” of an employee relationship. See id. at 135. But upon its consideration of the entirety of the evidence of record, which included the fact that (1) Burrell worked without any agreement for compensation whatsoever, (2) he could work, or not when he desired, (3) his son usually did not know Burrell was coming to work until he showed up, (4) Burrell’s time-off work for his son was not a requirement to earn a job upon his retirement, (5) his son did not consider Burrell his “employee,” and (6) Burrell acquired no interest in his son’s business as a result of his work, the court held that the evidence was factually insufficient to establish that Burrell was his son’s employee. See id.
In the instant case, as Appellants note, Thomas testified that he expected to be paid for his work. But he contradicted this testimony when, in direct response to a question about his expectation of remuneration, he also testified, “I was there to try to get a job.” The trial court was entitled to consider such testimony in conjunction with Thomas’s testimony that Munoz was “trying me out” and his recollection of Munoz’s statement to him, “If you like it, we will talk about employment … and if you don’t like it, it is like you have never even been here.” We reiterate that a contractual provision dealing with payment is always an essential element or a material term. See G.D. Holdings, Inc., 407 S.W.3d at 861. Thus, in considering the conflicting nature of Thomas’s testimony regarding whether he was there to work in exchange for, at the least, his expectation that he would be paid versus his testimony that he was there to “try out” for a job, which if he liked it, might result in discussions of his employment, the trial court reasonably could determine that the evidence did not conclusively establish that Thomas was Appellants’ employee at the time of his injury and that a fact issue existed as to whether he was an employee or a volunteer.4 See Burrell, 464 S.W.2d at 134–35.
*6 Appellants also cite to Medrano v. Kerry Ingredients & Flavours, Inc., No. 02-24-00262-CV, 2025 WL 52125 (Tex. App.–Fort Worth Jan. 9, 2025, no pet.) (mem. op.), for further support that Thomas’s claims are barred by the exclusive-remedy provision. Appellants state that in Medrano, “the court affirmed summary judgment in favor of an employer where the plaintiff accepted workers’ compensation benefits while represented by counsel and later brought a tort suit for the same injury … [and] held that this contradiction was legally impermissible and that the exclusive remedy doctrine barred the suit.” However, based on our reading of Medrano, the court affirmed the trial court’s ruling on the exclusive-remedy provision soley based on the fact that the trial court did not specify a basis for its summary-judgment ruling and could have relied upon the exclusive remedy provision, which Medrano did not challenge on appeal. See id. at *4. Thus, it held, because Medrano did not challenge every ground on which the summary judgment on Medrano’s non-intentional tort claims could have been based, the court was “procedurally required to affirm the trial court’s ruling without regard to the merits of Medrano’s non-intentional tort claims,” to which Kerry’s challenge under the exclusive-remedy provision related. See id. The remainder of the court’s opinion relates to the election-of-remedies defense5 and whether Medrano made an informed choice thereunder. See id. It was undisputed that Medrano was Kerry’s employee, and the remainder of the court’s opinion does not support, as Appellants suggest, that Medrano’s application for and acceptance of workers’ compensation benefits while represented by counsel was evidence, much less conclusive evidence, of his employee status for purposes of proving the applicability of the exclusive-remedy provision. See id. at *1, *5–7.
Because the record reflects that there was not conclusive evidence establishing that Thomas was Appellants’ employee, we hold that the trial court did not err in denying Appellants’ motion for directed verdict. See Prudential Ins., 29 S.W.3d at 77. Appellants’ first issue is overruled.
JUDICIAL ESTOPPEL AND THE ONE-SATISFACTION RULE
In their second issue, Appellants argue that Thomas is judicially estopped from denying employee status and is pursuing an impermissible double recovery under the one-satisfaction rule.6
Judicial Estoppel7
Judicial estoppel precludes a party who successfully maintains a position in one proceeding from afterwards adopting a clearly inconsistent position in another proceeding to obtain an unfair advantage. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009); Pleasant Glade Assembly of God v. Schubert, 264 S.W.3d 1, 6 (Tex. 2008). Accordingly, a party cannot be judicially estopped if it did not prevail in the prior action. Ferguson, 295 S.W.3d at 643; see Long v. Knox, 291 S.W.2d 292, 295 (Tex. 1956). The doctrine is not intended to punish inadvertent omissions or inconsistencies but rather to prevent parties from playing fast and loose with the judicial system for their own benefit. Schubert, 264 S.W.3d at 7.
Texas courts have modified the general rule by applying judicial estoppel only where the statement in a prior proceeding is sworn. Andrews v. Diamond, Rash, Leslie & Smith, 959 S.W.2d 646, 650 n.2 (Tex. App.–El Paso 1997, writ denied) (citing Long, 291 S.W.2d at 295; Aetna Life Ins. Co. v. Wells, 557 S.W.2d 144, 147 (Tex. Civ. App.–San Antonio 1977), writ ref’d n.r.e., improvidently granted, 566 S.W.2d 900 (Tex. 1978)). The elements of judicial estoppel under Texas state law are: (1) a sworn, prior inconsistent statement made in a judicial proceeding; (2) which successfully was maintained in the prior proceeding; (3) not made inadvertently or by mistake, or pursuant to fraud or duress; and (4) which is deliberate, clear, and unequivocal. Andrews, 959 S.W.2d at 650 n.2; see also Long, 291 S.W.2d at 295; Huckin v. Joseph P. Connor and Stern, Flanz, Carnley and Wilson, P.C., 928 S.W.2d 180, 182–83 (Tex. App.–Houston [14th Dist.1996], no writ).
*7 Here, Appellants argue that Thomas made written statements on medical forms that he was an employee of AMA and, additionally, his acceptance of workers’ compensation benefits amounts to an assertion that he was AMA’s employee. But these sorts of statements do not amount to judicial estoppel because no statement relied upon by Appellants was sworn or made in a judicial proceeding. See Andrews, 959 S.W.2d at 650 n.2. Therefore, we hold that, as a matter of law, Thomas is not judicially estopped from denying employee status in this case and the trial court did not err in overruling his motion for directed verdict on that basis.
One-Satisfaction Rule
Under the one satisfaction rule, a plaintiff is entitled to only one recovery for any damages suffered. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000). This rule applies when multiple defendants commit the same act, as well as when defendants commit technically different acts that result in a single injury. Id. The rule applies when a plaintiff settles with one of the potentially liable defendants; in that scenario, a non-settling defendant seeking a settlement credit under the one-satisfaction rule has the burden to prove its right to such a credit. See Sky View at Las Palmas, LLC v. Mendez, 555 S.W.3d 101, 107 (Tex. 2018), opinion corrected on reh’g (Sept. 28, 2018). To prove entitlement to judgment as a matter of law under the one-satisfaction rule, a defendant must show that (1) the one-satisfaction rule applies, (2) the settlement credit entirely sets-off the maximum amount of liability claimed by the plaintiff, and (3) punitive damages are not at issue. See Cohen v. Arthur Andersen, L.L.P., 106 S.W.3d 304, 309–10 (Tex. App.–Houston [1st Dist.] 2003, no pet.).
Once the non-settling defendant demonstrates a right to a settlement credit, the burden shifts to the plaintiff to show that certain amounts should not be credited because of the settlement agreement’s allocation. Mendez, 555 S.W.3d at 107. The plaintiff can rebut the presumption that the non-settling defendant is entitled to settlement credits by presenting evidence showing that the settlement proceeds are allocated among defendants, injuries, or damages such that entering judgment on the jury’s award would not provide for the plaintiff’s double recovery. Id. at 107–08. A non-settling party should not be penalized for events over which it has no control. Id. at 108. If the plaintiff fails to satisfy this burden, then the defendant is entitled to a credit equal to the entire settlement amount. Id. at 108.
In the instant case, Appellants make no attempt on appeal to show that they satisfied their burden under the one-satisfaction rule by demonstrating that the rule applied or that the settlement credit entirely sets-off the maximum amount of liability Thomas claimed. See Cohen, 106 S.W.3d at 309–10. Indeed, the facts of this case do not support the rule’s application or that any settlement credit entirely sets off the maximum amount of claimed liability.
Instead, Appellants seek to enforce a one-satisfaction rule more as a general concept, i.e., despite Thomas’s receiving workers’ compensation benefits for his injury, he sought and obtained a multi-million-dollar tort judgment against Appellants for the same injury. Appellants do not seek to offset Thomas’s recovery by the amount of workers’ compensation benefits payments he received. Rather, they appear to be re-urging their exclusive-remedy argument under this concept. Regardless, because Appellants cannot meet the elements to satisfy the one-satisfaction rule, we hold that the trial court did not err in overruling their motion for directed verdict on this basis.8 Appellants’ second issue is overruled.
EXCLUSION OF EVIDENCE
*8 In their third issue, Appellants argue that the trial court abused its discretion by excluding evidence of Thomas’s receipt of workers’ compensation benefits, as well as testimony that another co-worker smelled the odor of marijuana on Thomas’s person shortly before he returned to work the afternoon of the accident.
Standard of Review
We review a trial court ‘s decision to admit or exclude evidence for an abuse of discretion. Fleming v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020) (per curiam); Rodriguez v. OGT, LLC, 725 S.W.3d 187, 195 (Tex. App.–Dallas 2025, pet. filed); Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Bedford v. Moore, 166 S.W.3d 454, 465 (Tex. App.–Fort Worth 2005, no pet.). A court abuses its discretion only when it rules without regard to any guiding rules or principles. Bedford, 166 S.W.3d at 465. The mere fact that a trial judge may decide a matter within his discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). Furthermore, a trial court’s exclusion of evidence is harmful only if the evidence is controlling on a material issue and is not cumulative. See Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994); Franco v. Franco, 81 S.W.3d 319, 321 (Tex. App.–El Paso 2002, no pet.). A successful challenge to an evidentiary ruling generally requires showing that the judgment turned on the particular evidence in dispute. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000). We examine the entire record in determining harm. See Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001). We must uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning, 972 S.W.2d at 43.
Evidence of Thomas’s Receipt of Workers’ Compensation Benefits
The trial court excluded evidence of Thomas’s receipt of workers’ compensation benefits on the basis that such evidence violated the collateral-source rule. See Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.–Houston [14th Dist.] 2004, pet. denied) (under collateral source rule, defendant not entitled to present evidence of funds received by plaintiff from collateral source). In their brief, Appellants argue that evidence of Thomas’s receipt of workers’ compensation benefits was directly relevant to their exclusive-remedy defense and their judicial estoppel theory.
The totality of Appellants’ argument in their brief that the trial court abused its discretion in excluding this evidence is its reliance on two cases: Villalobos v. TVRS, No. 05-23-00245-CV, 2024 WL 5244616 (Tex. App.–Dallas Dec. 30, 2024, no pet.) (mem. op.); and Homman v. Kugler, No. 11-14-00028-CV, 2016 WL 787365 (Tex. App.–Eastland Feb. 25, 2016, no pet.) (mem. op.). Appellants cite these cases for the proposition that “[c]ourts have held that workers’ compensation benefits may be admissible for non-damages purposes such as proving employment status or estoppel, particularly for impeachment purposes.” (emphasis added).9 But in truth, what these cases say is that while evidence that a plaintiff received workers’ compensation benefits ordinarily is inadmissible under the collateral-source rule, an exception exists when such evidence is offered for impeachment purposes where the plaintiff claimed financial hardship. See Villalobos, 2024 WL 5244616, at *7; Homman, 2016 WL 787365, at *5. Neither case makes any mention that there exists an exception to the collateral-source rule to prove employment status or estoppel as Appellants purport.
*9 As set forth in our discussion of Appellants’ second issue, Thomas’s receipt of workers’ compensation benefits has no relevance to the issue of judicial estoppel because that act does not involve a statement made in a prior, judicial proceeding. See Andrews, 959 S.W.2d at 650 n.2. And Appellants make no argument in their briefing of this issue, apart from their citation to the two, aforementioned cases, that such evidence has such a high degree of relevance with regard to the formation of a contract of hire that a new, distinct exception to the collateral-source rule should be adopted. See TEX. R. APP. P. 38.1(i).
Here, the record reflects, in the following exchange, that the trial court appropriately balanced Appellants’ purported need for the admission of this evidence with the evidence’s prejudicial effect under the collateral source rule:
[Trial Court]: I think this case needs to be decided on the issue of whether or not this man was an employee of the Defendant. I think insurance is going to — to me, this is too risky to let all of this insurance come in, even though I understand your point. That’s why I was asking if there was any direct evidence that he represented to the insurance company he was an employee besides cashing the check.
[Appellants’ Counsel]: I don’t have anything or direct evidence.
See TEX. R. EVID. 403 (court may exclude relevant evidence if its probative value is substantially outweighed by danger of unfair prejudice, confusing issues, misleading jury, undue delay, or needlessly presenting cumulative evidence). Indeed, the Texas Supreme Court recognized the harmful effect the admission of collateral-source evidence in the form of workers’ compensation benefits can have, describing the effect as “becloud[ing] the issues in the case, divert[ing] the minds of the jury[,]” and “misleading … the jury[.]” Villalobos, 2024 WL 5244616, at *7 (citing Myers v. Thomas, 186 S.W.2d 811, 813 (Tex. 1945)). Based on the foregoing, we conclude that the trial court did not abuse its discretion in refusing to admit evidence of Thomas’s receipt of workers’ compensation benefits.
Evidence Suggesting Marijuana Use
Appellants next argue that the trial court abused its discretion when it excluded “highly probative evidence” that Thomas was under the influence of marijuana at the time of the accident, which materially impaired their ability to present their comparative-negligence defense. On this matter, Appellants sought to admit testimony from two witnesses, as well as documentary evidence.
Ricardo Mendoza
Appellants proffered to the trial court that Mendoza would testify that he gave Thomas a marijuana joint on the day of the accident and observed Thomas smoke it shortly before he returned to work that afternoon. The trial court excluded Mendoza’s testimony because he was not disclosed as a person with knowledge of relevant facts.
A party may obtain discovery of the name, address, and telephone number of persons with knowledge of relevant facts, and a brief statement of each identified person’s connection with the case. TEX. R. CIV. P. 192.3(c), 194.2(b)(5). When responding to written discovery, a party must make a complete response and must amend or supplement the response if it later learns that the response is no longer complete and correct. Id. 193.1, 193.5(a). A party who fails to disclose information concerning a nonparty witness in response to a discovery request may not offer the witness’s testimony unless the court finds that there was good cause for the failure to timely make, amend, or supplement the discovery response or the failure to make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties. Id. 193.6(a); Beam v. A.H. Chaney, Inc., 56 S.W.3d 920, 922 (Tex. App.–Fort Worth 2001, pet. denied).
*10 In the instant case, in a pretrial hearing, Appellants argued that despite the fact that Mendoza was not disclosed as a person with knowledge of relevant facts, he was listed among eight people who interacted with Thomas on the day of the accident, was included in a witness list, and was mentioned by Lee Robinson in his deposition. As Appellants argue in their brief, if, as they purport, Mendoza was permitted to testify that he observed Thomas smoke marijuana shortly before the accident, such evidence would be probative on the issue of Thomas’s alleged comparative fault. See TEX. CIV. PRAC. & REM. CODE ANN. § 33.001 (West 2020). But merely disclosing Mendoza as having interacted with Thomas that day is not probative of anything of significance in this case and does not serve to fulfill Appellants’ burden of demonstrating that their failure to disclose would not unfairly surprise or prejudice Thomas.10 See TEX. R. CIV. P. 193.6(a). Nor does listing Mendoza as a trial witness demonstrate any lack of unfair surprise or prejudice since, as Thomas stated to the trial court, that disclosure occurred after the close of discovery near the time of trial. See id. Appellants finally argue that their failure to disclose Mendoza would not cause Thomas unfair surprise or prejudice because Mendoza’s name “had come up in depositions.” At the hearing, Thomas represented to the trial court that Mendoza’s name only came up in Lee Robinson’s deposition as follows:
[T]he question was, “You never seen anyone else at Munoz’s mill smoking weed?” Answer; “Ricky, I think.”
Question; “Is Ricky short for Ricardo?” Answer; “Yes.”
Question; “What was the Ricardo’s last name?” Answer; “I don’t know. I just call him Ricky.”
Next question; “Did you see Ricardo that day?” Answer; “Very rarely. I talked to him a couple of times that day. I don’t even remember where he was working at that day.”
Next question; “Did you ever see Ricardo with a joint at any time?” Answer; “No, I didn’t see it. Like I said, I smelled it that day.”
Question; “Have you ever seen Jerry talking with Ricardo at any point?” Answer; … “Yeah, whenever he walked to the mill, he talked to him for a second. I seen him, but I was not really paying attention.”
Question; “You never saw Ricardo offer Jerry a joint?” Answer; “I did not.”
Appellants did not point out to the trial court any other deposition testimony, concerning Mendoza which may have caused Thomas reasonably to determine that he was a person with knowledge of relevant facts and who should be a subject of further discovery. We agree with Thomas that the aforementioned, deposition testimony presented to the trial court indicates only that Mendoza interacted with Thomas briefly that day and was not observed giving Thomas marijuana. Accordingly, we hold that because Appellants did not meet their burden to demonstrate that their failure to disclose Mendoza as a person with knowledge of relevant facts would not unfairly surprise or prejudice Thomas, the trial court did not abuse its discretion by excluding his testimony. See TEX. R. CIV. P. 193.6(a).
Lee Robinson
Appellants conducted a voir dire examination of Robinson outside the jury’s presence. He testified that Thomas was at his house a couple of weeks before the accident and he observed Thomas smoke marijuana. He also testified that he was around Thomas the morning of the accident and went to lunch with him. He stated that during that time, he did not smell marijuana. He then testified that after lunch, shortly before the accident, as he was walking to his workstation, he walked past Thomas and smelled marijuana. Robinson conceded that he was not with Thomas the entire time after lunch and did not know where Thomas went during the “couple of minutes” after they got back from lunch before he saw him again. He further stated that he did not see Thomas smoke marijuana on the day of the accident and never saw him smoke marijuana at a job site, but that he previously observed Mendoza, who was at the sawmill that day, smoke marijuana at the job site. Lastly, he testified that he had no idea whether Thomas was under the influence at the time of his injury and that anything he would say about that would be a “pure guess.”
*11 Evidence is relevant, and, therefore, admissible, if it has any tendency to “make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” TEX. R. EVID. 401, 402; Serv. Corp. Int’l v. Guerra, 348 S.W.3d 221, 237–38 (Tex. 2011). To determine relevancy, the court must look at the purpose for offering the evidence. Serv. Lloyds Ins. Co. v. Martin, 855 S.W.2d 816, 822 (Tex. App.–Dallas 1993, no writ). There must be some logical connection, either directly or by inference, between the evidence offered and the fact to be proved. See Rhey v. Redic, 408 S.W.3d 440, 460 (Tex. App.–El Paso 2013, no pet.) (citing Serv. Lloyds, 855 S.W.2d at 822). Generally, evidence of a person’s drug use, without further evidence of negligence, is inadmissible. See Bedford v. Moore, 166 S.W.3d 454, 465 (Tex. App.–Fort Worth 2005, no pet.). That is, such evidence of drug use must provide some explanation for the negligence and improper conduct. See id.
Here, while Robinson testified that he smelled the odor of marijuana when he walked by Thomas on his way to his workstation shortly before the accident, he also testified that (1) he did not see Thomas smoke marijuana on the day of the accident, (2) he never saw him smoke marijuana at a job site, (3) he previously observed Mendoza, who was at the sawmill that day, smoke marijuana at the job site, and (4) he had no idea whether Thomas was under the influence at the time of his injury and that anything he would say about that would be a “pure guess.” We conclude that Robinson’s testimony that he smelled the odor of marijuana as he walked past Thomas that afternoon, without more, does not tend to make the existence of any fact of his being impaired more probable and, thus, does not tend to provide an explanation for Thomas’s greater negligence that day. See TEX. R. EVID. 401; Bedford, 166 S.W.3d at 465.11 Therefore, we hold that the trial court did not abuse its discretion in excluding this portion of Robinson’s testimony.
Documentary Evidence
Appellants sought to admit Exhibit 15, which consists of pleadings and other documents in a Department of Family Protective Services (CPS) case related to Thomas’s child. The pleadings include allegations that Thomas’s child was removed for reasons including Thomas’s use of a controlled substance that endangered the health or safety of the child, his failure to complete a court-ordered substance abuse treatment program, and his continuing to abuse a controlled substance thereafter. At trial, Appellants sought to admit this evidence to impeach Thomas’s testimony that the CPS case was filed against him because, due to his injury, he was unable to care for the child.12 But on appeal, Appellants only argue that by declining to admit this exhibit, “which included drug test results showing marijuana use[,]” the trial court left them without any ability to present their theory that Thomas’s impairment may have contributed to his injury.
The CPS case was filed in 2024, and Thomas’s child was born in January 2024. Therefore, because any evidence of drug use referenced in that case occurred nowhere near the date of the accident in this case, we conclude that such evidence does not provide any explanation for Thomas’s alleged negligence in connection with his injuries. Accordingly, we hold that the trial court did not abuse its discretion in excluding Exhibit 15. See TEX. R. EVID. 401; Bedford, 166 S.W.3d at 465. Appellants’ third issue is overruled.
SUBMISSION OF MUNOZ’S INDIVIDUAL LIABILITY
*12 In their fourth issue, Appellants argue that the trial court abused its discretion in submitting the issue of Munoz’s individual liability to the jury because there is not legally sufficient evidence to support the submission. Specifically, they contend that there is no proof that Munoz breached a personal duty owed to Thomas; rather, all actions taken by Munoz with respect to Thomas were done in his representative capacity as managing member of AMA.
Standard of Review
A trial court has wide discretion in submitting instructions and jury questions. Chesser v. LifeCare Mgmt. Servs, L.L.C., 356 S.W.3d 613, 619 (Tex. App.–Fort Worth 2011, pet. denied); Howell Crude Oil Co. v. Donna Ref. Partners, Ltd., 928 S.W.2d 100, 110 (Tex. App.–Houston [14th Dist.] 1996, writ denied). A trial court must submit only “such instructions and definitions as shall be proper to enable the jury to render a verdict.” TEX. R. CIV. P. 277. A proper jury instruction is one that assists the jury and is legally correct. Town of Flower Mound v. Teague, 111 S.W.3d 742, 759 (Tex. App.–Fort Worth 2003, pet. denied). We review the trial court’s legally-correct definitions, instructions, and questions for an abuse of discretion. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex. 2003); Tex. Workers’ Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 912 (Tex. 2000); Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 664 (Tex. 1999).
When an appellant challenges the legal sufficiency of the evidence to support the submission of a question to the jury, we review de novo the sufficiency of the evidence applying the legal sufficiency standard of review. See, e.g., T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992) (recognizing that objection to submission of question as based on no-evidence preserves no-evidence challenge for appeal); see Chesser, 356 S.W.3d at 619.
In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the fact finding, crediting favorable evidence if reasonable persons could, and disregarding contrary evidence unless reasonable persons could not. City of Keller, 168 S.W.3d at 807. This Court may not sustain a legal-insufficiency, or “no evidence,” challenge to a submission unless the record demonstrates (1) a complete absence of evidence of a vital fact; (2) that the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) that the evidence conclusively establishes the opposite of the vital fact. See id. at 810. More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Driskill v. Ford Motor Co., 269 S.W.3d 199, 203 (Tex. App.–Texarkana 2008, no pet.).
Governing Law
Texas long has had two methods for holding individual corporate agents or officers personally liable when they are acting within the course and scope of their employment or role as corporate agents—piercing the corporate veil or direct individual liability. Weller v. Keyes, 684 S.W.3d 496, 499 (Tex. App.–Austin 2022), aff ‘d, 692 S.W.3d 274 (Tex. 2024). The second of these methods of holding corporate agents personally liable for actions performed within the course and scope of their employment or role as corporate agents—direct individual liability for tortious conduct—remains alive and well under the common law. See id. at 500 (citing Transcor Astra Grp. S.A. v. Petrobras Am., Inc., 650 S.W.3d 462, 478 (Tex. 2022)). LLC members likewise are individually liable for their own tortious conduct in participating and directing wrongdoing, separate and apart from any veil-piercing or similar doctrines. See Weller, 684 S.W.3d at 500–01 (citing Key v. Richards, No. 03-14-00116-CV, 2016 WL 240773, at *3 & n.4 (Tex. App.–Austin Jan. 13, 2016, no pet.) (mem. op.)). In this context, individual liability arises only when the officer or agent (or member in an LLC) owes an independent duty of reasonable care to the injured party apart from the employer’s duty. See Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996).
*13 In a premises-liability case, a duty arises from control of the premises; that is, an owner or occupier of land has a duty to use reasonable care to keep the premises under his control in a safe condition. See Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985); see also Butcher v. Scott, 906 S.W.2d 14, 15 (Tex. 1995) (right to control premises is a factor that determines whether legal duty should be imposed on the owner or possessor of the premises).
Appellants point to several pieces of evidence that AMA was the operator of the sawmill: payroll was processed through AMA; the workers’ compensation policy was issued to AMA; AMA employees gave Thomas instructions; and a sign posted at the entrance to the sawmill indicates that AMA controls the property. They argue that this evidence is uncontroverted.13
In response, Thomas cites to the following testimony elicited from Munoz, which he contends creates a fact issue as to Munoz’s individual control of the premises, separate from that of AMA:
Q. This request was directed to the Defendants in this case, and you are one of them, right?
A. Correct.
Q. Both you and your company are both defendants in the case, correct?
A. Yes.
Q. And you, Antonio Munoz, you control these premises, correct?
A. Correct.
Q. That was true then, and it is true today?
A. Yes.
Thomas further urges that Munoz’s ownership and right to control he exercised over the premises was evidenced by his decision unilaterally to transfer ownership of the premises between his companies during the pendency of the underlying litigation, as set forth in his trial testimony as follows:
Q. You started the business, Aserradero, LLC is using the property, you’re making the payments on it, and you don’t have the deed?
A. Correct.
….
Q. Then, Jerry’s accident happens, and we sent you a letter, we filed the case, all of that?
A. Yes.
Q. At that time when we asked you who owned it, you told us yourself and Aserradero, LLC, right?
A. Yes.
Q. You told us both yourself and Aserradero, LLC. Now, after the lawsuit was filed, after this witness — you talked yesterday about how you gave a deposition, and answered all of this stuff, and things were heating up, and did you transfer this property to another company that you owned and controlled?
A. No.
Q. Who owns it today? Who owns the premises today?
A. Munoz Enterprise, LLC.
….
Q. Throughout this entire time, you had control of these premises?
A. Yes.
Q. And you fully controlled all the companies that had ever made any payments on it or held any title to it?
A. Yes, of course.
….
Q. And you make the profits off of Munoz Enterprises, Inc?
A. Yes.
Q. Does Aserradero, LLC pay rent to Munoz Enterprises, Inc?
A. That was the plan, yes.
Q. Is it happening?
A. No.
….
Q. There is no lease between these two companies?
A. No, not yet.
Q. There is no paperwork between them?
A. No.
Q. You never alerted anybody in this litigation that you had made this transaction?
*14 A. No.
Q. And any payments that are made are just going to be from you to you?
A. Company to company.
Q. Company to company. You own, and control, and benefit from both of them, right?
A. Yes, of course.
Q. Nobody else?
A. No, of course.
Q. Nobody else?
A. No, of course.
Lastly, Thomas notes that in response to direct examination by his counsel, Munoz reiterated his ownership and control of the premises in the following exchange:
Q. Mr. Munoz, do you still own the premises?
A. Yes.
Q. Did you own the premises during the incident in question?
A. I was making payments.
Q. Did you have control of the premises on the date of the incident?
A. Yes.
Q. Was that true then?
A. Yes.
Q. Is that true now?
A. Yes.
In considering whether to submit the issue of Munoz’s individual liability to the jury, the trial court summarized its view of the evidence as follows:
I wish, I was hoping, this trial would clear the ownership issue up because if it is clear, then, obviously, we don’t want an individual on the hook for a judgment, but it wasn’t clear. It didn’t get cleared up. As a matter of fact, it got a little bit fuzzier.
….
Again, I wish the evidence supported a clean understanding of ownership. It just got real cloudy, and I think that there was — we need to leave the individual in there.
We agree with the trial court’s assessment that the evidence was not determinative of the issue of whether the sawmill was controlled by AMA or Munoz individually. Appellants argued to the trial court that this apparent uncertainty merely was a result of Munoz’s “lack of legal knowledge about the distinction between an LLC and himself.” But such an explanation only further complicates the issue since it also suggests that his purported lack of understanding may have contributed to how Munoz managed AMA and whether he, in fact, controlled the premises in his individual capacity in spite of AMA’s ownership of the sawmill. Thus, if, as Appellants suggested to the trial court, Munoz’s testimony indicated that he lacked understanding of the legal distinction between AMA and himself, then the question of whether AMA or Munoz controlled the sawmill, as such a question relates to Munoz’s individual liability, appropriately was submitted as a fact question for the jury.
Based on our review of the record, we conclude that there was more than a scintilla of evidence to support that Munoz individually exercised a sufficient level of control over the premises so as to indicate that he had an individual duty to use reasonable care to keep the premises under his control in a safe condition. See Redinger, 689 S.W.2d at 417; Weller, 684 S.W.3d at 499–501; see also City of Keller, 168 S.W.3d at 807, 810. Therefore, we hold that the trial court did not abuse its discretion in submitting the issue of Munoz’s individual liability to the jury. Appellant’s fourth issue is overruled.
JURY CHARGE SUBMISSIONS
In their fifth issue, Appellants argue that one issue submitted in the court’s charge––Munoz’s individual liability––and key defensive theories, which were not submitted––exclusive remedy provision, judicial estoppel, and election of remedies––amounted to harmful charge error and prejudiced the outcome of the trial.
*15 As set forth in our discussion of Appellants’ fourth issue, the trial court did not abuse its discretion in submitting the issue of Munoz’s individual liability to the jury. Moreover, as we discussed in response to Appellants’ second issue, Thomas is not judicially estopped from denying employee status as a matter of law because no statement relied upon by Appellants was sworn or made in a judicial proceeding. See Andrews, 959 S.W.2d at 650 n.2.
Further still, in our discussion of Appellants’ first issue, we concluded that the trial court reasonably could determine that the evidence did not conclusively establish that Thomas was Appellants’ employee at the time of his injury and that a fact issue existed as to whether he was an employee or a volunteer. See Burrell, 464 S.W.2d at 134–35. Accordingly, the trial court appropriately submitted the issue of Thomas’s employment status to the jury in Question 4. See TEX. R. CIV. P. 277. The jury answered that Thomas was not an employee of AMA at the time of his injury. Accordingly, even assuming arguendo that the trial court abused its discretion in declining to submit Appellants’ proposed submission on the exclusive-remedy defense, Appellants cannot demonstrate harm because, in light of the jury’s negative answer to Question 4, Appellants cannot prevail under this defense. See TEX. R. APP. P. 44.1(a); Park N. Serv. Ctr., L.P. v. Applied Circuit Tech., Inc., 338 S.W.3d 719, 721 (Tex. App.–Dallas 2011, no pet.) (even if trial court erred by failing to submit requested questions to the jury, we may not reverse unless error is harmful, i.e., if it probably caused rendition of improper judgment); see also Garza, 161 S.W.3d at 476–77.
Lastly, Appellants argue that the trial court abused its discretion by failing to submit their defense of election of remedies, which they argue was expressly pleaded, supported by trial evidence, and presented through proposed charge language. While, in their fifth issue, they have not made specific argument as to how there is sufficient evidence to support this defense or cited to any portion of the record which relates to Thomas’s election of remedies, they do briefly mention the lack of evidence supporting Thomas’s election of remedies in their briefing of their second issue. But much like our resolution of Appellants’ argument regarding the trial court’s failure to submit its exclusive-remedy defense, even assuming arguendo that the trial court abused its discretion in declining to submit Appellants’ proposed submission on election of remedies, Appellants cannot demonstrate harm because, in light of the jury’s negative answer to Question 4 as to Thomas’s employment status, Appellants cannot prevail under this defense. See TEX. R. APP. P. 44.1(a); Park N. Serv. Ctr., L.P., 338 S.W.3d at 721; see also TEX. LAB. CODE ANN. §§ 401.012(a), 406.034(a), (b) (West 2006) (required notice of election of remedies and waiver of right to action at common law applies to “employees”).
Based on the foregoing, we hold that the trial court did not abuse its discretion by (1) submitting the issue of Munoz’s individual liability to the jury and (2) declining to submit the affirmative defense of judicial estoppel. Furthermore, we hold that to the extent the trial court may have abused its discretion by declining to submit the defensive issues of exclusive remedy and election of remedies, Appellants were not harmed thereby. Appellants’ fifth issue is overruled.
DISPOSITION
*16 Having overruled Appellants’ first, second, third, fourth, and fifth issues, we affirm the trial court’s judgment.
JUDGMENT
THIS CAUSE came to be heard on the appellate record and briefs filed herein, and the same being considered, it is the opinion of this court that there was no error in the judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the judgment of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged against the appellants, Antonio Munoz Aserradero, LLC and Antonio Munoz, Individually, for which execution may issue, and that this decision be certified to the court below for observance.
Footnotes |
|
| 1 | Although determining whether a plaintiff is the defendant’s employee ultimately is a matter of applying these statutory definitions, courts have often not found the definitions alone to be dispositive. Waste Mgmt. of Tex., Inc. v. Stevenson, 622 S.W.3d 273, 277 (Tex. 2021). Under some cases, courts have determined whether a worker is an employee rather than an independent contractor by considering whether the employer has the right to control the progress, details, and methods of operations of the work. See id. These factors also are useful to determine employee status in the context of dual employment. See id. The type of control normally exercised by an employer includes determining when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. Phillips v. Am. Elastomer Products, L.L.C., 316 S.W.3d 181, 187 (Tex. App.–Houston [14th Dist.] 2010, pet. denied). However, in this case, in spite of his pleadings, Thomas ultimately did not contend that he was an independent contractor, and there is no issue of dual employment. Instead, the record indicates that the question considered by the trial court is whether a scintilla of evidence supported that Thomas’s “try out” at the sawmill amounted to his working as a volunteer before a contract for hire was consummated. See Tex. Emp’rs Ins. Assoc. v. Burrell, 564 S.W.2d 133, 134 (Tex. Civ. App.–Beaumont 1978, writ ref’d n.r.e.) (one who assumes service in Texas of his own free will without any express or implied promise of remuneration is a “volunteer” and not an “employee” under Texas Workers’ Compensation Act). Accordingly, we will apply the statutory definitions and applicable caselaw to determine whether Thomas was Appellants’ employee at the time of the accident. See Stevenson, 622 S.W.3d at 277. |
| 2 | Appellants also argue that Thomas’s injury occurred during the course and scope of his employment and that he was covered by AMA’s workers’ compensation policy. However, the record does not reflect that there is any dispute that Thomas suffered a work-related injury and that AMA had workers’ compensation coverage at that time. |
| 3 | Appellants also cite Seabright Ins. Co. v. Lopez, 465 S.W.3d 637, 641–42 (Tex. 2015), for the proposition that “employment may be implied based on performance of labor and expectation of payment[.]” But Lopez required the court’s determination of whether summary judgment evidence conclusively established that Lopez, an employee, was acting in the course and scope of his employment when he died in an automobile accident while traveling to a job site. See id. at 639. Lopez’s employee status was not an issue, and the court never discussed the matter of his “expectation of payment” and its relevance to the determination of employee status as Appellants suggest. See id. at 641–45. |
| 4 | Moreover, based on Thomas’s recounting of Munoz’s statement to him, “If you like it, we will talk about employment,” the trial court reasonably could determine that, at that point, no contract of hire existed because Munoz’s offer contained a condition precedent to formation of a contract of hire. See Hohenberg Bros. Co. v. George E. Gibbons & Co., 537 S.W.2d 1, 3 (Tex. 1976) (citing Perry v. Little, 377 S.W.2d 765, 769 (Tex. Civ. App.–Tyler 1964, writ ref’d n.r.e.)) (condition precedent may be condition to formation of contract). In any event, it amounts to some evidence that, at that point, Munoz was not ready to discuss Thomas’s employment. |
| 5 | The common law, election-of-remedies defense is distinct from the statutory, exclusive-remedy provision of the Workers’ Compensation Act and is not abrogated by it. See Tex. Workers’ Comp. Comm’n v. Tex. Workers’ Comp. Ins. Fund, 132 S.W.3d 5, 10–11 (Tex. App.–Amarillo 2003, no pet.). |
| 6 | Appellant’s brief makes no reference to the stage of the proceedings in which the trial court failed to determine the applicability of its judicial-estoppel defense so as to enable this court to apply the appropriate standard of review. In the interest of justice, and because Appellants request rendition of judgment in their favor on this issue, we will suppose that they are referring to the trial court’s order overruling their motion for directed verdict, in which they argued that Thomas “is estopped from seeking a double-recovery” because he elected to receive workers’ compensation benefits. |
| 7 | Judicial estoppel is the only form of estoppel Appellants specifically argue in their briefing of their second issue. See TEX. R. APP. P. 38.1(i); Hunter v. PriceKubecka, PLLC, 339 S.W.3d 795, 803 n.5 (Tex. App.–Dallas 2011, no pet.) (courts of appeals do not consider arguments raised for first time in reply brief). |
| 8 | In support of both of their arguments in their second issue, Appellants continue to rely on the Fort Worth Court of Appeals’ opinion in Medrano. As set forth previously, in Medrano, the court’s opinion on the merits relates to the common law, election-of-remedies defense and whether Medrano made an informed choice thereunder. See Medrano v. Kerry Ingredients & Flavours, Inc., No. 02-24-00262-CV, 2025 WL 52125, *4 (Tex. App.–Fort Worth Jan. 9, 2025, no pet.) (mem. op.). There, it was undisputed that Medrano was Kerry’s employee, and the remainder of the court’s opinion does not support, as Appellants suggest, that Medrano’s application for and acceptance of workers’ compensation benefits while represented by counsel was evidence, much less conclusive evidence, of his employee status for purposes of proving the applicability of the exclusive-remedy provision. See id. at *1, *5–7. Furthermore, it has no bearing on the issues of judicial estoppel or the one satisfaction rule. See id. |
| 9 | Appellants do include a parenthetical after the citation to Homman v. Kugler, which more accurately states “evidence of workers’ compensation benefits admissible to impeach testimony inconsistent with receipt of benefits” and makes no reference to proof of employment status or estoppel. |
| 10 | While Appellants argued this disclosure as a basis for Thomas’s lack of unfair surprise or prejudice to the trial court, they do not argue this as a basis in their brief on appeal. See TEX. R. APP. P. 38.1(i). |
| 11 | One of the trial court’s stated bases for excluding this portion of Robinson’s testimony involved the prejudicial nature of such evidence. While Appellants argue that this testimony is relevant, they make no argument in their brief that the trial court’s determination, i.e. that its probative value is substantially outweighed by the danger of unfair prejudice, amounts to an abuse of discretion. See TEX. R. EVID. 403; see also TEX. R. APP. P. 38.1(i). |
| 12 | Appellants stated to the trial court that they wanted to ask Thomas whether the real reason his child was taken from him was due to his use of controlled substances. |
| 13 | Appellants also argue that Thomas’s pleadings do not support Munoz’s individual liability. But based on our review of the pleadings, Thomas sufficiently alleged that “Defendants” were the “owners” and “possessors” of the premises and owed him a duty of ordinary care in maintaining a safe environment. The record does not reveal that Appellants specially excepted to Thomas’s pleadings on this or any basis. See TEX. R. CIV. P. 90, 91. |