Court of Appeals of Texas, Dallas.

Wynthia J. CHEATUM, Appellant,

v.

TEXAS WORKERS’ COMPENSATION COMMISSION and University of Texas System, Appellees.

No. 05-98-00846-CV.

|

Feb. 7, 2001.

Before MOSELEY, BRIDGES and FARRIS,¹ JJ.

OPINION

FARRIS.

*1 This is an appeal from a summary judgment in favor of the Texas Workers’ Compensation Commission and the University of Texas System (UTS). Wynthia Cheatum, an attorney, filed a suit against UTS for abuse of process after UTS disputed attorney’s fee awarded to her for obtaining supplemental income benefits (SIB) for her client. She also sought declaratory judgement relief and brought a constitutional challenge to the application of certain sections of the Texas Workers’ Compensation Act, Texas Labor Code and the Texas Workers’ Compensation Commission Rules. For the reasons below, we affirm in part and dismiss the remainder of the case for lack of jurisdiction.

Wynthia Cheatum represented Ellener Garrison, an injured employee/claimant in a worker’s compensation claim. Cheatum was successful in obtaining Garrison’s SIBS for the third and fourth quarter. Cheatum applied for attorney’s fees for her representation of Garrison’s third quarter. TWCC approved $1387.50 in attorney’s fees. UTS disputed the attorneys fees, a hearing was held, and the attorney’s fees were reduced to $622.50. Cheatum then billed for defending her attorney’s fees, and TWCC approved $912.50 in attorney’s fees. Again, UTS disputed the fees and another hearing was held. The attorney’s fees were upheld in the amount of $912.50. UTS appealed the decision of the hearing officer and filed a request for review. The TWCC appeals panel reversed the decision of the hearing officer. Cheatum also applied for attorney’s fees for her representation of Garrison in the fourth quarter. TWCC approved $1612.50 in attorneys fees. UTS also disputed these attorney’s fees, a hearing was held, and the attorney’s fees were reduced to $600.00. Cheatum billed for defending her attorney’s fees, and TWCC approved $900.00 in attorneys fees. Following an appeal by UTS, the TWCC appeals panel reversed the attorney’s fee order and rendered a take nothing order. Cheatum then filed two suits, one in Travis County seeking review of the appeals panel’s decisions and another in Dallas County attacking the constitutionality of certain statutory provisions² and claiming an abuse of process.

Initially, we must determine whether we have jurisdiction over this appeal. See Tex.Gov’t Code Ann § 22.220 (Vernon 1988). In Cheatum’s second issue, she contends the trial court erred in its determination that Cheatum had no standing to challenge the constitutionality of the Texas Workers’ Compensation Act, the Texas Workers’ Compensation rules, or the Texas Workers’ Compensation Commission Appeal Panel Decision No. 9362471.

A lack of standing deprives a court of jurisdiction because standing is an element of subject matter jurisdiction. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex .1993). The Texas Open Courts Act protects access to the courts only for those suffering an injury: “All courts shall be open, and every person for an injury done her … shall have remedy by due course of law.” Tex. Const. art. I, § 13 (emphasis added); see Tex. Ass’n of Bus., 852 S.W.2d at 444. To establish standing, a party must show a justiciable interest, which requires that the party allege actual or imminent threat of injury peculiar to one’s circumstances and not suffered by the public generally. Tex. Rivers Prot. Ass’n v. Tex. Natural Res. Conservation Comm’n, 910 S.W.2d 147, 151 (Tex.App.-Austin 1995, writ denied). The injury may be economic, recreational, or environmental. City of Bells v. Greater Texoma Util. Auth., 790 S.W.2d 6, 11 (Tex.App.-Dallas 1990, writ denied). A plaintiff must plead facts that affirmatively demonstrate standing; that is, the plaintiff must affirmatively show jurisdiction. Tex. Ass’n of Bus., 852 S.W.2d at 446.

*2 It is a fundamental rule of constitutional law that a court “will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.” Fahey v. Mallonee, 332 U.S. 245, 255 (1947) (quoting Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (Brandeis, J., concurring)). A party contractually waives its constitutional or statutory rights by intelligently, voluntarily, and knowingly relinquishing a known right or acting inconsistent with claiming that right. See Williams v. Williams, 569 S.W.2d 867, 870 (Tex.1978) (finding contractual waiver of a surviving spouse’s constitutional and statutory rights to a homestead and other exempt property); Dillee v. Sisters of Charity, 912 S.W.2d 307, 309 (Tex.App.-Houston [14th Dist.] 1995, no writ).

The summary judgment evidence establishes Cheatum was awarded attorney’s fees four different times in the amounts of $1387.50, $1612.50, $900.00 and $912.50 in this case. UTS paid these amounts to Cheatum. Subsequently, these fees were either reduced or reversed entirely and TWCC ordered Cheatum to reimburse UTS, Cheatum did not. Because Cheatum has chosen to accept benefits under the Act and Rules, she has no standing to contest the constitutionality of the provision of such, and further has no standing for declaratory judgment relief. We conclude this court has no jurisdiction over Cheatum’s constitutional challenges because of lack of standing. Therefore, we consider the remaining issues of Cheatum’s abuse of process claim in turn.

In Cheatum’s first issue, she contends the trial court erred in failing to consider her motion for summary judgment at the time the court considered UTS and TWCC’s motions. When both parties move for summary judgment, the court should consider all the evidence accompanying both motions in deciding whether to grant either party’s motion. Dallas County Appraisal Dist. v. Institute for Aerobics Research, 766 S.W.2d 318, 319 (Tex.App.-Dallas 1989, writ denied); Villareal v. Laredo Nat’l Bank, 677 S.W.2d 600, 605 (Tex.App.-San Antonio 1984, writ ref’d n.r.e.). We need not determine what evidence the trial court considered in its determination on summary judgment because, on appeal a summary judgment is reviewed de novo. Natividad v. Alexsis, Inc., 875 S . W.2d 695, 699 (Tex.1994). We will consider all the evidence accompanying both motions in deciding whether the trial court erred. Therefore, Cheatum’s first issue is moot and we do not address it.

In Cheatum’s third issue, she contends the summary judgment is void because it was not submitted to the TWCC for approval as required by section 410.258 and Rule 147.11 of the TWCC Rules. Section 410.258 took effect on September 1, 1997 and applies to a proceeding initiated on or after that date.³ This case was initiated on February 26, 1997. Thus section 410.258 does not apply. Rule 147.11 requires a carrier to file a copy of an agreement or settlement with the general counsel of TWCC thirty days prior to the date the agreement is sent to the parties for signature of the court for approval after an appeal of a final appeals panel decision. 28 Tex.Admin.Code § 147.11 (West 2000). In the case at bar, no agreement or settlement was reached; therefore, rule 147.11 does not apply. We overrule Cheatum’s third issue.

*3 In issues four through eleven, Cheatum argues the constitutionality of certain sections of the Texas Workers’ Compensation Act, Texas Labor Code and the Texas Workers’ Compensation Commission Rules. Because we have determined Cheatum has no standing to bring a constitutional challenge, we dismiss issues four through eleven.

In issues twelve, thirteen and fourteen Cheatum claims UTS’s dispute of her attorney’s fees is an abuse of process because the rules do not provide for a carrier to contest attorney’s fees in any case, including, fees billed for services in a contest of entitlement to SIB. We disagree.

The Texas Workers’ Compensation Act permits the payment of reasonable and necessary attorney’s fees incurred during the defense of SIB when the employee prevails on any disputed issue. Tex.Lab.Code Ann. § 408.147(c) (Vernon 1996). Additionally, section 408.221 allows for the payment of attorney’s fees for representing a claimant before the commission or court for non-SIB issues. Tex.Lab.Code Ann. § 408.221 (Vernon 1996). Under 408.221, the attorney’s fees are not to exceed twenty-five percent of the claimant’s recovery and are to be paid from the claimant’s recovery. Id. The fees are based on the attorney’s time and expenses supported by written evidence presented to the commission or court. Id.

The Texas Labor Code provides that “[t]he commission shall adopt rules as necessary for the implementation and enforcement of the Workers Compensation Act.” Tex.Lab.Code Ann. § 402.061 (Vernon 1996). The commission has adopted rules allowing a party or attorney to contest the awarded attorney’s fees. Commission Rule 153(d) allows for an attorney, claimant, or carrier to contest the attorney’s fees affixed and approved by the commission, via a contested benefit case hearing. 28 Tex.Admin.Code § 147.11 (West 2000). Further, an attorney, claimant, or carrier can contest the fee order by the hearing officer after a contested benefit case hearing by requesting review by the appeals panel. Id. We construe the language in the rules to allow a carrier to contest attorney’s fees in any case. We, therefore, overrule Cheatum’s issues twelve, thirteen and fourteen.

In issue fifteen, Cheatum contends the trial court abused its discretion in failing to grant her motion to compel the depositions of Dan Schouse, Stephen Burger, Charles Cole, Allen McDonald and Bart Griffin. The standard of review of a trial court’s pretrial discovery order is whether the trial court abused it discretion in granting or denying discovery. Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985). A trial court abuses its discretion only when it has reached a decision that is “so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.” Id.

In her brief, Cheatum contends the appellee’s grounds for not attending the noticed depositions were (1) this case hinged on a matter of law; and (2) appellant was requesting the deposition as a basis for harassment. She argues these grounds were “insufficient and speculative.” Cheatum does not provide any reasons or proof as to why these grounds were insufficient and speculative. Further, Cheatum makes no citations to authorities to support her argument as required by the Texas Rules of Appellate Procedure. Tex.R.App.P. 38.1(h). Additionally, our review of the record reveals the trial court granted the motion to quash because the depositions were unnecessary. We conclude the trial court did not abuse its discretion, and we overrule Cheatum’s fifteenth issue.

*4 In issue sixteen, Cheatum requests a determination as to whether TWCC is entitled to attorney’s fees for the litigation of this case. Attorney’s fees are reviewed under an abuse of discretion standard. See Oake v. Collin County, 692 S.W.2d 454, 455 (Tex.1985). We overrule Cheatum’s sixteenth issue because Cheatum has offered no evidence that the trial court acted in an arbitrary or unreasonable manner. See Downer v. Aquamarine Operators, Inc, 701 S.W.2d 238, 241-42 (Tex.1985). Further, the trial court did not grant TWCC’s request for attorney’s fees and Cheatum has failed to show a specific injury resulting from the trial court’s failure to grant TWCC’s request for attorney’s fees.

We dismiss Cheatum’s constitutional claims for lack of jurisdiction and affirm the remainder of the trial court’s judgment.

	Footnotes
1		The Honorable David F. Farris, Retired Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.
2		Cheatum challenges the constitutionality of Texas Labor Code Annotated Sections 408.147(c), 408.221, 408.222 and Title 28 of the Texas Administrative Code Sections 130.108(d)(1), 130.108(d)(2), 152 .1(c), 152.1(f), 152.2(d), 152.3(d), and 152.3(e).
3		Act of June 20, 1997, 75th Leg., R.S., ch. 1267, § 2, 1997 Tex.Gen.Laws 4794.