Court of Appeals of Texas, Dallas.
KENNETH HENRY, Appellant
MARC A. NOTZON AND LAW OFFICE OF MARC A. NOTZON, P.C., Appellees
Opinion Filed July 25, 2023
On Appeal from the 191st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-19-13449
Before Justices Molberg, Pedersen, III, and Kennedy1
Opinion by Justice Molberg
Pedersen, III, J., dissenting.
MEMORANDUM OPINION ON REHEARING
KEN MOLBERG JUSTICE
*1 Reverse and Remand and Opinion Filed July 25, 2023
In this summary judgment appeal, we grant appellant Kenneth Henry’s motion for rehearing, withdraw our prior opinion, and vacate our December 22, 2022 judgment. This is now the opinion of the Court. We reverse and remand for further proceedings consistent with this opinion because, based on the pleadings and record before us, the trial court misapplied the collateral estoppel doctrine, and, in doing so, erroneously deprived Henry of a possible remedy for a claimed serious breach of a lawyer’s duty of loyalty to his client.
Henry sued appellees Marc A. Notzon and the Law Office of Marc A. Notzon, P.C.2 and alleges both breached their fiduciary duty to him in their representation of him in a prior lawsuit in which he was a defendant.
The prior lawsuit arose from a motor vehicle accident on May 29, 2015, when Henry, an insulin-dependent diabetic, experienced a low blood sugar event. At the time of the accident, Henry was driving a company truck and was in the course and scope of his employment with Time Warner Cable (TWC). According to Henry, on the date of—but before—the accident, he rode with a co-worker and an on-call supervisor for several hours due to disorientation caused by his low blood sugar. Henry alleges, “[d]espite caution to the contrary,” he “was put back in a TWC company vehicle and was involved in an unfortunate accident.”
A third party sued Henry and TWC after that accident. Notzon jointly represented Henry and TWC in that lawsuit and negotiated a settlement on behalf of them both. The dates of the settlement and Notzon’s representation of Henry and TWC are not clear from the appellate record, but in terms of when their representation began, Henry alleges he and his supervisors met with Notzon at TWC’s Dallas location “shortly after the collision” and also alleges he “met with the TWC supervisors, [human resources and] Notzon on at least two occasions in the month of June 2015 to discuss the accident.”
According to Henry, TWC policy mandates that after an accident, an Accident Review Committee (ARC) will conduct its investigation and provide results within seven days after the accident. Henry alleges the ARC process occurred in June 2015.
Henry also alleges he was released to return to work without restrictions by the workers’ compensation doctors on September 7, 2015, and “around September 10, 2015, TWC began high level conferences regarding Henry’s employment.” Henry alleges “Notzon participated in those conferences” but “did not inform Henry of those conferences, even though Notzon participated in the discussions.”
Henry was terminated on October 2, 2015, more than four months after the accident, and less than a month after the “high level conferences” Notzon is alleged to have participated in began.
Henry sued TWC3 in federal court for disability discrimination and workers’ compensation retaliation, alleging, in part, that TWC terminated him (1) because of his disability in violation of the Americans with Disabilities Act, as amended (ADAAA), see 42 U.S.C. §§ 12101–213, and (2) because he filed a workers’ compensation claim in good faith, hired a lawyer to represent him in a workers’ compensation claim, instituted or caused to be instituted a workers’ compensation claim in good faith, and/or testified or was prepared to testify in a workers’ compensation proceeding, in violation of Chapter 451 of the Texas Labor Code. See TEX. LABOR CODE §§ 451.001–.003. TWC moved for summary judgment on Henry’s ADAAA and workers’ compensation retaliation claims. The federal district court granted the motion, and the federal court of appeals affirmed.4
*2 In this lawsuit, Henry alleges Notzon breached the fiduciary duty owed to Henry by deceiving him and by failing to disclose a conflict of interest and “secret” discussions with TWC in the course of jointly representing Henry and TWC in the lawsuit filed against them after the accident. He alleges “Notzon’s design was to conceal TWC’s gross negligence when TWC permitted Henry to get behind the wheel of the company truck on May 29, 2015,” and “to lay all of the blame for the collision on Henry even though TWC had been told by [one of Henry’s co-workers] that Henry should not be permitted to drive” on that date.
Henry also alleges Notzon’s breach caused him damages and that, unbeknownst to Henry, “Notzon was ... working against Henry to garner favor with TWC and the money TWC and/or its insurers was paying to Notzon[,]” gains which Henry describes as “ill-gotten” and that should be forfeited. In terms of relief, Henry seeks, among other things, “[f]ee forfeiture and actual damages[,]” “[l]ost earnings and employee benefits in the past[,]” “[l]ost earnings and employee benefits that in reasonable probability will be lost in the future,” and “[c]ompensatory damages, past and future[.]” The latter three types of damages are similar in nature to certain types of relief Henry sought from TWC in his federal lawsuit against TWC.5
Notzon’s pleading includes a general denial and asserts various affirmative defenses, including collateral estoppel, and Notzon filed a traditional summary judgment motion based on that affirmative defense.6 The trial court granted Notzon’s motion based solely on that defense and made certain evidentiary rulings. Henry then filed a combined motion for new trial and motion for reconsideration. The trial court did not rule on that combined motion, and it was overruled by operation of law.
Henry timely appealed. In our Court, the parties filed a written agreement stating that “if the grant of summary judgment on the basis of collateral estoppel is determined by this Court to have been granted in error, the matter should be remanded to the trial court, unless review by the Texas Supreme Court is granted.” See TEX. R. APP. P. 6.6.
II. ISSUES AND ANALYSIS
*3 Henry raises two issues on appeal and argues the trial court erred in (1) granting summary judgment on the affirmative defense of collateral estoppel and (2) denying his motion to compel certain discovery. Notzon disputes both issues. As we explain, we agree with Henry on the first issue and need not reach the second.
A. Applicable Standards
1. Summary Judgment Standards
We review de novo the trial court’s ruling on a motion for summary judgment. Ortiz v. State Farm Lloyds, 589 S.W.3d 127, 131 (Tex. 2019); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). In conducting our review, “we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” Ortiz, 589 S.W.3d at 131 (quoting Dorsett, 164 S.W.3d at 661).
A traditional motion for summary judgment requires the moving party to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Ortiz, 589 S.W.3d at 131; Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018).7 If the movant does so, the burden then shifts to the nonmovant to come forward with competent controverting evidence sufficient to raise a genuine issue of material fact on the challenged element. Lujan, 555 S.W.3d at 84. A genuine issue of material fact exists if the evidence regarding the challenged element “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).
*4 When, as here, a party has moved for traditional summary judgment on an affirmative defense, the movant has the initial burden of establishing entitlement to judgment as a matter of law by conclusively establishing each element of its affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008) (per curiam); see also TEX. R. CIV. P. 166a(b)–(c). A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005); see also Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam) (stating, “An appellate court reviewing a summary judgment must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented.”).
If the movant meets its burden, the burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to one or more elements of the affirmative defense, precluding summary judgment. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
2. Collateral Estoppel
“The doctrine of collateral estoppel precludes re-litigation of ultimate issues of fact actually litigated and essential to the judgment in a prior suit.” Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 801 (Tex. 1992); see Tarter v. Metro. Sav. & Loan Ass’n, 744 S.W.2d 926, 927 (Tex. 1988); Farmland Partners Inc. v. First Sabrepoint Cap. Mgmt., Inc., No. 05-22-00010-CV, 2023 WL 4286017, *5 (Tex. App.—Dallas June 30, 2023, no pet. h.) (mem. op.). “Ultimate issues are those factual determinations submitted to a jury that are necessary to form the basis of a judgment.” Tarter, 744 S.W.2d at 928; Farmland Partners, 2023 WL 4286017, at *5. “The term ‘ultimate issue’ does not refer to a cause of action or a claim.” Id.
“Collateral estoppel requires that the issue decided in the first action be identical to the issue in the pending action.” Getty Oil, 845 S.W.2d at 802 (emphasis added); Farmland Partners, 2023 WL 4286017, at *5. “The doctrine applies when the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior suit[,]” Tarter, 744 S.W.2d at 927, and “when relitigation could result in an inconsistent determination of the same ultimate issue; it does not bar litigation merely because the outcomes of two suits may appear to be inconsistent.” Id. at 928–29; Farmland Partners, 2023 WL 4286017, at *5.
The doctrine “is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by precluding the relitigation of issues.” In re USAA Gen. Indem. Co., 629 S.W.3d 878, 883 (Tex. 2021) (orig. proceeding) (quoting Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994)).
Trapnell states, “Since collateral estoppel is an affirmative defense, [a defendant has] the burden of pointing out the issue [the defendant wishes] to be estopped.” 890 S.W.2d at 802. Trapnell further explains the burden as follows:
A party seeking to assert the bar of collateral estoppel must establish that (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action.
Id. at 801 (emphasis added) (but noting strict mutuality of parties is no longer required)8; see also Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex. 1985) (“Collateral estoppel, or issue preclusion, is more narrow than res judicata in that it only precludes the relitigation of identical issues of facts or law that were actually litigated and essential to the judgment in a prior suit.”) (emphasis added).
*5 “To determine whether the facts were fully and fairly litigated in the first suit, we consider ‘(1) ... whether the parties were fully heard, (2) whether ... the court supported its decision with a reasoned opinion, and (3) whether the decision was subject to appeal or was in fact reviewed on appeal.’ ” BP Auto. LP v. RML Waxahachie Dodge, LLC, 517 S.W.3d 186, 200 (Tex. App.—Texarkana 2017, no pet.) (quoting Mower v. Boyer, 811 S.W.2d 560, 562 (Tex. 1991)). “To determine whether a fact issue is essential to the judgment, i.e. whether it is an ‘ultimate issue,’ we look to the factual determinations made by the trier of fact that are “ ‘necessary to form the basis of a judgment.’ ” Id. (quoting Tarter, 744 S.W.2d at 928); Farmland Partners, 2023 WL 4286017, at *6.
We review collateral estoppel’s application de novo because it is a question of law. Webb v. Diversegy, LLC, No. 05-17-01258-CV, 2019 WL 1146707, at *4 (Tex. App.—Dallas Mar. 13, 2019, pet. denied) (mem. op.); Farmland Partners, 2023 WL 4286017, at *6. As the movant on its collateral estoppel defense, Notzon had the “burden of pointing out the issue [Notzon wished] to be estopped.” See Trapnell, 890 S.W.2d at 802.
To determine whether the trial court erred in granting summary judgment based on collateral estoppel, as Henry argues in his first issue, we first summarize the nature of Henry’s claim and Notzon’s summary judgment motion, the latter of which included Notzon’s characterization of the issue Notzon wished to be estopped.
1. Henry’s Claim and Notzon’s Summary Judgment Motion
Henry’s only claim against Notzon is for breach of fiduciary duty, a tort claim that generally involves the following elements: “(1) the existence of a fiduciary duty, (2) breach of the duty, (3) causation, and (4) damages.” See Parker, 514 S.W.3d at 220; see also Jones v. Blume, 196 S.W.3d 440, 447 (Tex. App.—Dallas 2006, pet. denied) (describing elements as requiring “(1) a fiduciary relationship between the plaintiff and defendant; (2) the defendant must have breached his fiduciary duty to the plaintiff; and (3) the defendant’s breach must result in injury to the plaintiff or benefit to the defendant”).
Notzon moved for, and obtained, a traditional summary judgment based solely on the affirmative defense of collateral estoppel. To do so, Notzon was required to conclusively establish all elements of that defense. Martinez, 941 S.W.2d at 911.
As grounds for Notzon’s traditional summary judgment motion, Notzon’s motion stated, in pertinent part:
As a matter of law, all of [Henry’s] claims should be dismissed for failing to raise a material fact issue as to necessary elements for his claim.
[Henry] cannot establish a material fact issue as to causation. [Henry] just finished asserting claims against his former employer [TWC] for [d]isability [d]iscrimination and Workers’ Compensation Act [v]iolations. The Northern District of Texas determined in the previous litigation (hereafter referred to as the “TWC case”) that [Henry’s] employment was terminated because he caused a severe, avoidable accident that seriously damaged three innocent people. The Northern District found that [Henry’s] diabetic condition was not a consideration in TWC’s decision to terminate [Henry’s] employment. Moreover, the Northern District determined that [Henry] could not show that the accident’s avoidable and severe nature was a pretext for terminating his employment based on his diabetic condition.
The [trial court] should grant summary judgment against Plaintiff in this case because ... the reason for [Henry’s] termination has not changed, and thus [Notzon was] not the cause of [Henry’s] damages.
*6 In the body of the motion, Notzon argued the trial court “should grant [his] motion for summary judgment because [Notzon’s] alleged breach did not cause [Henry’s] damages.” Notzon then stated, “[Henry] is collaterally estopped from asserting that the reason for termination was not the severity and avoidable nature of the May 29, 2015 accident[,]” “[t]he issue of causation has already been litigated and the doctrine of collateral estoppel applies[,]” and “[Henry] is thus precluded from re-litigating causation[.]” Notzon then listed the elements of collateral estoppel and argued, (1) “The cause of [Henry’s] termination from TWC was actually litigated in the TWC case[,]” (2) “was essential to the Northern District granting summary judgment for TWC,” and (3) Henry, “the party against whom the doctrine is asserted, was a party to the TWC case.” In his response to Notzon’s motion, Henry disputed the first two arguments but not the third. The trial court granted Notzon’s motion based solely on collateral estoppel but did not otherwise explain the basis for its ruling.
2. Parties’ Positions on Appeal
In his first issue on appeal, Henry argues the trial court erred in granting summary judgment on the affirmative defense of collateral estoppel. Notzon disputes this and argues the trial court properly granted traditional summary judgment “based on the affirmative defense of collateral estoppel, thereby negating the essential element of causation of damages in Henry’s claim for breach of fiduciary duty.”
3. Trial Court Erred in Granting Summary Judgment
As we explain further below, we conclude the trial court erred in granting Notzon’s traditional summary judgment based on collateral estoppel because, based on the record before us, Notzon failed to conclusively prove the facts sought to be litigated in this action were fully and fairly litigated in Henry’s federal lawsuit against TWC and were essential to the federal court’s judgment. See Trapnell, 890 S.W.2d at 801 (collateral estoppel elements); Martinez, 941 S.W.2d at 911 (explaining that in a traditional summary judgment based on an affirmative defense, movant must conclusively establish all elements of the defense).
Concluding that collateral estoppel applies here, as Notzon argues, and as the dissent concludes, fundamentally misinterprets at least three things: (1) the nature of “ultimate issues” for collateral estoppel purposes, (2) the federal district court’s analysis, and (3) the nature of causation itself. We discuss each topic below.
First, as Tarter states, the term “ultimate issue” does not refer to a cause of action or a claim but instead refers to “those factual determinations submitted to a jury that are necessary to form the basis of a judgment.” 744 S.W.2d at 928. Here, the parties did not litigate, and the federal court did not consider or conclude, the same ultimate issues Henry seeks to establish in this case—whether Notzon breached a fiduciary duty to Henry that injured Henry or benefited Notzon,9 and if so, the remedies available to him as a result of the breach.10 Instead, as exhibits A and M reflect,11 the federal court decided that: (1) Henry’s proof consisted of circumstantial, not direct, evidence and did not create a reasonable inference that his disability was a factor in TWC’s decision to terminate him, and (2) Henry did not create a reasonable inference he would not have been terminated but for his decision to file for workers’ compensation. Thus, the two “ultimate issues” regarding Henry’s termination that the federal district court decided, and the Fifth Circuit affirmed, were that, as a matter of law, (1) Henry did not prove TWC fired Henry because of his diabetes,12 and (2) TWC did not discharge Henry because he filed a workers’ compensation claim in good faith, hired a lawyer to represent him in a workers’ compensation claim, instituted or caused to be instituted a workers’ compensation claim in good faith, or testified or was about to testify in a workers’ compensation proceeding.13 To conclude the same ultimate issues in Henry’s prior employment lawsuit and in this case are the same, one must pretend that in each case, the jury would be asked, “Why did TWC terminate Henry?” followed by a blank space for the jury to fill in. As the cited PJCs reflect, that is not how it works.
*7 Second, concluding that collateral estoppel applies here fundamentally misinterprets the federal court’s analysis. In analyzing Henry’s ADAAA claim against TWC, the federal court employed the well-known McDonnell Douglas Corporation v. Green14 framework, a heuristic15 that assists courts in analyzing efforts to summarily dismiss certain discrimination cases that are based on circumstantial proof. As a part of that framework, if the employee has previously demonstrated a prima facie case of discrimination or retaliation, the employer must proffer a legitimate, non-discriminatory reason to justify adverse action against an employee. In doing so, the employer, like TWC, does not carry a burden of proof. It must only make its evidentiary proffer to dispel the presumption created by an employee’s prima facie showing. See, e.g., Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 142–43 (2000) (stating that Reeves’s establishment of prima facie case of discrimination shifted to his employer burden to “produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason[,]” but that “[t]his burden is one of production, not persuasion [and] can involve no credibility assessment” and that “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff”) (internal quotations omitted); see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256–58 (1981) (“[T]he defendant does not bear a formal burden of persuasion.”). Furthermore, the McDonnell Douglas framework applies only at the summary judgment or directed verdict stage, not at trial,16 which makes Notzon’s arguments even more tenuous as to both of the first two collateral estoppel elements. Put another way, the McDonnell Douglas framework is merely a three-tiered method of assessing circumstantial evidence of discrimination to determine whether a fact issue exists for purposes of summary judgment or directed verdict.
Nevertheless, Notzon treats TWC’s intermediate burden of production as if it were a burden of persuasion and resulted in a necessary finding that Henry’s wreck was not only a cause, but the sole and only cause, of his termination when, in fact, such a determination was not made and was not essential to the ultimate issues of disability discrimination or workers’ compensation retaliation—claims that do not require that discriminatory or retaliatory animus be the sole cause for a termination or other adverse event.17
*8 Third, Notzon’s position, and the trial court’s and the dissent’s apparent agreement with it, also misinterprets the nature of causation itself. Even if we were to agree the federal court decided, as a matter of ultimate fact, that TWC terminated Henry because of his wreck, such a finding would not be inconsistent with the ultimate fact to be decided here regarding the actual damages to Henry resulting from Notzon’s alleged breach, as it is well-established that there can be more than one proximate cause for an event,18 and a finding of one cause does not necessarily preclude others.19 Thus, even if, as Notzon argues, the cause of Henry’s termination from TWC was already decided, the trier of fact in this case could still find the termination resulted from other causes, such as Notzon’s alleged breach.20
Contrary to Notzon’s argument and the trial court’s and the dissent’s apparent agreement with it, the federal district court did not decide, as an ultimate issue, any cause of Henry’s termination at all. Instead, it simply established that Henry did not satisfy his summary judgment burden of proof under McDonnell Douglas. Cf. Grenwelge v. Shamrock Reconstructors, Inc., 705 S.W.2d 693, 694 (Tex. 1986) (holding jury’s failure to find breach of contract meant the plaintiffs failed to carry their burden of proof, not that the defendant substantially performed the contract). Thus, based on the record before us, we conclude the trial court erred in granting summary judgment based on collateral estoppel because Notzon failed to conclusively establish that the facts Henry seeks to establish here were actually litigated and essential to the federal court’s summary judgment ruling in Henry’s federal lawsuit against TWC. See Trapnell, 890 S.W.2d at 801 (collateral estoppel elements); Martinez, 941 S.W.2d at 911 (summary judgment burden). Far from “fully and fairly litigated,” the facts Henry seeks to establish here were never litigated in Henry’s federal lawsuit against TWC and thus were not, and could not have been, essential to the federal court’s judgment. See Getty Oil, 845 S.W.2d at 802 (“[C]ollateral estoppel only applies where the identical issue was litigated in the prior suit”); Tarter, 744 S.W.2d 928–29 (“The doctrine of collateral estoppel applies when relitigation could result in an inconsistent determination of the same ultimate issue; it does not bar litigation merely because the outcomes of two suits may appear to be inconsistent.”); Farmland Partners, 2023 WL 4286017, at *10 (reversing summary judgment and remanding case for further proceedings when movant failed to establish collateral estoppel elements).
*9 Additionally, precluding Henry from proceeding with his claim against Notzon does not serve the underlying purposes of the collateral estoppel doctrine, which “is designed to promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by precluding the relitigation of issues.” In re USAA Gen. Indem. Co., 629 S.W.3d at 883 (quoting Trapnell, 890 S.W.2d at 801). Notzon has not been subjected to multiple lawsuits, and because the ultimate issues in Henry’s prior case against TWC and this case are different, precluding him from proceeding with his case against Notzon does not prevent relitigation of issues or inconsistent judgments but instead simply deprives Henry of a possible remedy for a claimed breach of a lawyer’s duty of loyalty to his client. See Farmland Partners, 2023 WL 4286017, at *10 (concluding collateral estoppel’s underlying purposes were not served in that case).
Finally, even if we were to conclude Notzon met the traditional summary judgment burden because Henry requests TWC-employment-related damages from Notzon, summary judgment would still have been improper, at least as to Henry’s claim for equitable relief, which does not require proof of causation. In Parker, the Texas Supreme Court stated:
[I]n Kinzbach21 evidence of causation was not necessary because the remedy sought was equitable forfeiture of an improper benefit received by the agent. 160 S.W.2d at 514. Likewise, in Burrow22 the remedy applied was equitable forfeiture of fees paid to attorneys who breached their fiduciary duties, not damages the clients suffered because of the attorneys’ actions or omissions. Burrow, 997 S.W.2d at 239–40. In neither of those cases did we hold that a client need not prove that a breach of fiduciary duty caused actual damages if a client is claiming such damages. Plainly put, for the [nonmovant claimant] to have defeated a no-evidence motion for summary judgment as to a claim for actual damages, the [nonmovant claimant] must have provided evidence that [the movant defendant’s] actions were causally related to the loss of its money. It did not do so. On the other hand, the [nonmovant claimant] was not required to show causation and actual damages as to any equitable remedies it sought.
514 S.W.3d at 221 (emphasis added). Although Parker involved a no-evidence summary judgment context, its statement regarding a claimant’s burden is plain, making it clear Henry is not required to show causation and actual damages as to any equitable relief he seeks.
We sustain Henry’s first issue. Under the circumstances, we do not reach Notzon’s argument regarding Henry’s alleged inability to seek fee forfeiture when he did not pay Notzon’s fees23 and do not reach Henry’s second issue regarding the trial court’s discovery ruling, as such issues are not necessary to final disposition of the appeal. See TEX. R. APP. P. 47.1 (stating we “must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal”).24 Thus, we make no comment on, and reach no conclusion regarding, the merits of Henry’s second issue, but we see no reason why the trial court could not reconsider the particular discovery dispute discussed therein upon remand.25 We also see no reason why Henry may not raise that issue again in the future, either upon remand or through any applicable appellate procedures, provided any necessary requirements are met.
*10 We grant Henry’s motion for rehearing, withdraw our prior opinion, vacate our December 22, 2022 judgment, and reverse and remand this case for further proceedings consistent with this opinion.
The Honorable Justice David J. Schenck was originally a member of this panel and participated in oral argument and our prior memorandum opinion but did not participate in the issuance of this memorandum opinion on rehearing. The Honorable Justice Nancy Kennedy succeeded Justice Schenck when his term expired December 31, 2022. Justice Kennedy has reviewed the briefs and the record.
Throughout the opinion, we refer to both appellees collectively as “Notzon.”
In that lawsuit, Henry sued “Spectrum, L.L.C. and Charter Communications, L.L.C. f/d/b/a Time Warner Cable Texas, L.L.C.” For clarity and brevity, we refer to the company simply as TWC.
See Henry v. Spectrum, L.L.C., No. 3:18-CV-01086-N, 2019 WL 1254954, *1–4 (N.D. Tex. Mar. 19, 2019), aff’d, 793 F. App’x 273 (5th Cir. 2019) (per curiam).
In his federal suit, Henry sought, among other relief, “back pay, front pay[,] ... lost wages and benefits in the past and future, all actual monetary losses,” and “compensatory damages” for the “emotional pain and suffering, mental anguish, and/or other nonpecuniary losses” caused by TWC’s conduct.
Originally, Notzon moved for summary judgment on both traditional and no-evidence grounds, but ultimately, Notzon proceeded only on a traditional ground based on an affirmative defense of collateral estoppel. In the reply brief in support of summary judgment, Notzon withdrew “their traditional and no-evidence [motions for summary judgment] and evidentiary exhibits to the extent they address summary judgment on a basis other than collateral estoppel” and stated they were relying only on ten paragraphs in their summary judgment motion (specifically, paragraphs thirty-two to forty-one) and five exhibits (specifically, A, G, H, I, and J). Those five exhibits consist of certified copies of various items from Henry’s federal litigation against TWC, including the federal district court’s order granting summary judgment to TWC (exhibit A), Henry’s amended complaint in federal court against TWC (exhibit G), TWC’s brief and reply brief in support of its federal summary judgment motion (exhibits H and J, respectively), Henry’s brief in opposition to TWC’s federal summary judgment motion (exhibit I), and the opinion of the United States Court of Appeals for the Fifth Circuit, which affirmed summary judgment on Henry’s ADAAA and workers’ compensation retaliation claims (exhibit M).
Traditional “summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff’s theories of recovery ... or pleads and conclusively establishes each element of an affirmative defense.” Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (1997) (citations omitted) (stating this prior to addition of rule 166a(i)). We include that standard here because only a traditional summary judgment is at issue in this case, as Notzon withdrew his no-evidence motion in his trial court reply brief, and the trial court’s summary judgment order states the court was advised Notzon’s no-evidence motion had been withdrawn. Moreover, a traditional motion is the only type of summary judgment motion available to a party moving for summary judgment on an affirmative defense on which the movant bears the burden of proof. Compare TEX. R. CIV. P. 166a(c) with TEX. R. CIV. P. 166a(i) (allowing a party to file a no-evidence summary judgment motion under subsection (i) “on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial”) (emphasis added); see Calabrian Corp. v. Alliance Specialty Chems., Inc., 418 S.W.3d 154, 157–58 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (noting that res judicata, also known as claim preclusion, and collateral estoppel, also known as issue preclusion, are affirmative defenses, and the party asserting the defense has the burden of pleading and proving its elements); see also Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 593 S.W.3d 324, 333 (Tex. 2020) (“ ‘The hallmark characteristic’ of an affirmative defense ‘is that the burden of proof is on the defendant to present sufficient evidence to establish the defense and obtain the requisite ... findings.’ ”) (quoting Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 156 (Tex. 2015)).
As Trapnell states, “[s]trict mutuality of parties is no longer required.... To satisfy the requirements of due process, it is only necessary that the party against whom the doctrine is asserted was a party or in privity with a party in the first action.” 890 S.W.3d at 801 (citations omitted).
See, e.g., Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance, Employment PJC 104.1–.5 (2020) (questions and instructions regarding breach of fiduciary duty which reflect that in some cases, the fiduciary bears the burden, and in others, the burden is on the beneficiary). We need not, and do not, comment upon the proper questions and instructions that should be given here.
See, e.g., Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance, Employment PJC 115.15–.18 (2020) (remedies for breach of fiduciary duty (comment) and questions on profit disgorgement, fee forfeiture, actual damages). Again, we need not, and do not, comment upon the proper questions and instructions should be given in this or any other specific case.
Exhibit A is the federal district court’s order granting summary judgment to TWC; exhibit M is the Fifth Circuit’s opinion affirming that order.
See Pattern Jury Instructions of the Dist. Judges Ass’n of the Fifth Circuit, Civil Cases ¶ 11.8 (2020), https://www.lb5.uscourts.gov/viewer/?/juryinstructions/fifth/2020civil.pdf (last visited July 14, 2023) (listing, as the primary pattern jury question, “Has Plaintiff [name] proved that Defendant [name] [specify adverse employment action] Plaintiff [name] because of [his/her] [[having a record of] [specify disability]] [[being regarded as having] [specify impairment]]?” In other words, considering that Henry’s claim was based upon an actual disability (and thus not record-of, or regarded-as, disability), the ultimate issue that would have been posed to the jury on Henry’s termination-related disability discrimination claim was this: “Has Plaintiff Henry proved that Defendant TWC fired Plaintiff Henry because of his diabetes?”
See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: Business, Consumer, Insurance, Employment PJC 107.5 (2020) (question and instruction on retaliation for seeking workers’ compensation benefits).
See 411 U.S. 792, 802–05 (1973).
See Walton v. Powell, 821 F.3d 1204, 1210 (10th Cir. 2016) (referring to McDonnell Douglas framework as a heuristic the trial court had used to guide its analysis on a particular claim); Stephen E. Sachs, Originalism: Standard and Procedure, 135 HARV. L. REV. 777, 810 (2022) (noting “the Supreme Court didn’t find the [McDonnell Douglas framework] squirreled away inside the Civil Rights Act of 1964” and referring to the McDonnell Douglas framework as one example of “[c]ourt-invented heuristics”).
See Kanida v. Gulf Coast Med. Pers. LP, 363 F.3d 568, 575 (5th Cir. 2004) (“The McDonnell Douglas formula, however, is applicable only in a directed verdict or summary judgment situation,” and “is not the proper vehicle for evaluating a case that has been fully tried on the merits.”) (quoting Powell v. Rockwell Int’l Corp., 788 279, 285 (5th Cir. 1986)).
To prove the causation element in his disability discrimination claims against TWC, Henry needed only to show discrimination “actually play[ed] a role in [TWC’s] decision making process and [had] a determinative influence on the outcome[,]” “not that discrimination was the sole cause for his termination.” See Pinkerton v. Spellings, 529 F.3d 513, 519 (5th Cir. 2008); see also McNely v. Ocala Star–Banner Corp., 99 F.3d 1068, 1070 (11th Cir. 1996) (concluding a plaintiff suing for disability discrimination can recover for discrimination without showing his disability was the sole cause for the adverse employment action taken against him). To prove the causation element in his workers’ compensation retaliation claims, Henry did not have to prove his termination was solely because of his protected activity under Chapter 451; instead, he needed only to show that his protected activity was “such that, without it, [TWC’s] prohibited conduct would not have occurred when it did.” Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996) (quoting Tex. Dep’t of Hum. Servs. v. Hinds, 904 S.W.2d 629, 631 (Tex. 1995)). Hinds, which involved a government whistleblower claim, stated the protected activity “need not be the employer’s sole motivation, but it must be such that without it, the discriminatory conduct would not have occurred when it did.” 904 S.W.2d at 631.
See Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 774 (Tex. 2010) (“There may be more than one proximate cause of an event.”); Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (stating, in an appeal of a negligence action, “There can be concurrent proximate causes of an accident. All persons whose negligent conduct contributes to the injury, proximately causing the injury, are liable.”).
Even if the federal court concluded that Henry’s wreck was the cause of his termination—a matter unsupported by this record—one important misstep in Notzon’s logic is that he argues, in essence, that such a finding would mean that no other cause for termination could exist. This logical leap not only ignores our prior point that there may be more than one proximate cause of an event but is also somewhat similar to cases in which a party attempts to turn a would-be negative finding into an affirmative one. See, e.g. Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 488 (Tex. 2016) (“Characterizing the jury’s negative response to [a question regarding negligence] as an affirmative finding that [the party] did not cause the damage thus misinterprets the jury’s finding.”) (also discussing other cases); Tarter, 744 S.W.2d at 928 (rejecting movant’s argument regarding implied negative finding when movant was not a party to the prior action and its conduct was not an issue in the prior trial). Such arguments misinterpret jury findings in cases where such findings have been made, and the misinterpretation is only heightened here, in the summary judgment context.
As one example of a similar conclusion in a case involving multiple claims regarding a termination of employment, see Leon v. N.Y.C. Dept. of Educ., 612 F. App’x 632, 634–35 (2d Cir. 2015) (summary order) (on appeal of federal rule 12(b)(6) dismissal of a discriminatory firing claim, appellate court concluded claim was not barred by collateral estoppel despite a finding in an earlier administrative proceeding that the employer had just cause to fire the employee; court stated, “The [trial] court’s error ... stems from the faulty assumption that [the just cause finding] necessarily precludes the possibility of termination motivated by [the alleged unlawful animus]” alleged in the second proceeding).
See Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509 (Tex. 1942).
See Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999).
On appeal, Notzon argues Henry is not entitled to equitable relief in the form of fee forfeiture because he did not personally pay Notzon’s fees. Henry disputes this argument. We need not decide that question because it could not have formed the basis for the trial court’s summary judgment, as Notzon did not include that as a ground for summary judgment and did not raise that argument in the trial court. See TEX. R. CIV. P. 166a(c) (“The motion for summary judgment shall state the specific grounds therefor” and “[i]ssues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); see also Nall v. Plunkett, 404 S.W.3d 552, 555 (Tex. 2013) (stating, “A trial court cannot grant summary judgment on grounds that were not presented” and “the court of appeals cannot ‘read between the lines’ or infer from the pleadings any grounds for granting the summary judgment other than those grounds expressly set forth before the trial court.” ) (citations omitted).
Henry’s second issue is unnecessary to the disposition of the appeal both because our sustaining of his first issue requires reversal and remand and because the parties have at least implicitly suggested as much, through their rule 6.6 agreement. See TEX. R. APP. P. 6.6.
In his second issue, Henry argues the trial court erred in denying Henry’s motion to compel production of Notzon’s file, “specifically all of the documents identified in Notzon’s privilege log, the calendar used to refresh Notzon’s recollection and in refusing to compel Notzon to answer all questions regarding his secret meetings with TWC.”