Court of Appeals of Texas,
Lucas LOPEZ, Appellant,
TEXAS WORKERS’ COMPENSATION INSURANCE FUND, Appellee.
Feb. 3, 2000.
Attorneys & Firms
*491 Lance C. Arney, Cook, Doyle & Bradshaw, L.L.P., Houston, for Appellant.
David P. Boyce, Wright & Greenhill, P.C., Austin, for Appellee.
Before Chief Justice YEAKEL.
MARILYN ABOUSSIE, Chief Justice.
Our opinion and judgment issued herein on November 18, 1999 are withdrawn, and the following is substituted in lieu thereof.
In March 1998, the district court in Jim Wells County rendered judgment on a jury verdict that appellant Lucas Lopez sustained an occupational disease in the course and scope of his employment. See section 410.205 was correct and whether the Fund’s refusal to pay Lopez during the pendency of the appeal constituted a breach of its policy with its insured. The Travis County district court upheld the Fund’s interpretation of the statute and declared that the Fund was therefore not in breach of its insurance policy by refusing to pay benefits until required by a final judgment. We will affirm the district court’s judgment.
Appellant Lucas Lopez worked for over twenty years as a sandblaster and painter for T.B. Moran Company in Alice, Texas. Lopez claimed that repeated exposure to silica dust and other particulate matter caused him to suffer the lung condition known as 418.002 (West 1996 & Supp.2000).
Lopez was denied benefits at all stages of the administrative proceeding, culminating in an appeals panel decision upholding the denial of benefits. Lopez filed suit in the district court of Jim Wells County. The case was tried to a jury, and the district court rendered judgment on the verdict that Lopez had suffered a compensable injury in the course and scope of his employment and that the Fund was liable for benefits. The Fund appealed this decision and declined to pay benefits during the pendency of the appeal on the basis that section 410.205(b) of the Labor Code binds the Fund and Lopez to the appeals panel’s decision—in this case a decision denying benefits—while appeal is pending.1
Lopez then sent a letter to the Fund on February 11, 1998, giving notice of his intent to sue the Fund for bad faith in handling his compensation claim and for alleged violations of the Texas Insurance Code and the Deceptive Trade Practices Act. See Tex. Bus. & Com.Code Ann. § 17.505(a) (West Supp.2000).
Eight days before the sixty-day waiting period expired, the Fund filed suit for declaratory relief in Travis County. In its petition, the Fund requested a determination of its rights and obligations under section 410.205 of the Labor Code as well as a determination on whether it had breached the terms of its policy with Moran Company by not paying compensation to Lopez. The district court granted summary judgment in favor of the Fund on both issues. In its order, the court stated that Lopez and the Fund were both bound by the appeals panel’s decision until rendition of a final, non-appealable judgment in Lopez’s suit and therefore the Fund had not breached the terms of its policy by failing to pay Lopez compensation pending final resolution of the suit.
Lopez appeals the district court’s order in three issues, contending: (1) the Fund’s suit should have been abated or dismissed because the Fund was engaging in impermissible forum shopping in response to Lopez’s notice letter; (2) the court erred in not transferring venue to Jim Wells County because that was the county of mandatory venue; and (3) the court’s grant of summary judgment was error because *493 it was based on a misconstruction of the Labor Code.
Denial of Motion to Abate
A court’s decision whether to grant a motion to abate is subject to review for abuse of discretion. See id. at 242.
In general, the court in which a suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts. See Bernal v. Garrison, 818 S.W.2d 79, 82 (Tex.App.—Corpus Christi 1991, writ denied).
Lopez never asked for a hearing on his motion, none was had, and the court never expressly ruled on the motion. Arguably, therefore, he waived his complaint. Even if considered, we have no way of knowing why the court did not grant the motion. When there are multiple grounds that could support the district court’s decision, we will affirm unless all grounds are disproved. See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).
“Abatement of a lawsuit due to the pendency of a prior suit is based on the principles of comity, convenience, and the necessity for an orderly procedure in the trial of contested issues. The plea in abatement must be raised in a timely manner, however, or it is waived.” Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex.1988) (citations omitted) (emphasis added).
The Fund filed its suit for declaratory judgment on April 4, 1998; Lopez did not file his motion to abate until February 10, 1999. The court could have found that Lopez’s filing his motion to abate over ten months after the suit’s inception was untimely. Such a decision would not have been an abuse of discretion. We overrule Lopez’s first issue.
Denial of Motion to Transfer Venue
In his second issue, Lopez argues that Jim Wells was the county of mandatory venue for all proceedings. Lopez claims that the effect of the Fund’s Travis County suit was to render the Jim Wells County judgment temporarily invalid. When a party seeks to restrain execution of a judgment based on invalidity of the judgment, mandatory venue lies in the county in which the judgment was rendered. See Wichita County v. Hart, 917 S.W.2d 779, 781 (Tex.1996). Failure to grant such a motion is an abuse of discretion requiring reversal and remand for a new trial. See id.
The outcome of this issue is determined by whether the Fund’s suit seeking a declaratory judgment constitutes an attack on the validity of the Jim Wells County judgment. We do not believe that it does. section 15.013 does not provide for mandatory venue of the Fund’s request for declaratory relief in Jim Wells County.
Relying on his argument under 15.013, Lopez does not contend on appeal that Travis County lacked permissive venue of the action.3 In deciding whether to transfer from one permissive venue to another, a court retains discretion, and its decisions are not subject to review on appeal. See (c) (West Supp.2000). Having rejected Lopez’s argument, we overrule his second issue.
Interpretation of Section 410.205(b)
In his third issue, Lopez contends that the Travis County district court misconstrued section 410.205(b) necessarily requires that the appeals panel’s decision remains in effect until the judicial appellate process is exhausted.
Statutory construction is a question of law. See Republic W. Ins. Co. v. State, 985 S.W.2d 698, 701 (Tex.App.—Austin 1999, pet. dism’d w.o.j.).
We agree with the Fund for several reasons. From a policy standpoint, we believe Lopez’s construction cannot be correct and would lead to unwarranted results. If we adopted Lopez’s approach, a worker in his position would receive benefits once the district court rendered a ruling. On the other hand, a worker being paid benefits under an appeals panel’s decision would have those benefits immediately terminated upon the district court’s rendition of judgment against him, even *495 though the court’s decision denying benefits might be overturned on appeal. Such an outcome would be contrary to the overarching policy of providing benefits to injured workers as soon as is practical. See 413.055 (West Supp.2000) (providing for reimbursement to carriers in the event of erroneous payment, thus encouraging carriers to err in favor of payment). We believe the statute as written reflects the State’s policy that benefits should be payable or not in accordance with the appeals panel’s decision until a final judicial decision rules otherwise. Lopez’s interpretation would undermine the general policy of the Workers’ Compensation Act.
Moreover, the text of the Labor Code does not support Lopez’s interpretation. Lopez would have us enforce a district court’s decision even though it is not yet final and still on appeal. Nowhere does the statute expressly provide for such an outcome. Although Subchapters F and G refer specifically to the “jury” and “trial court,” trial court proceedings necessarily contemplate review by appellate courts. Neither subchapter contradicts this implication by expressly providing that the district court’s decision becomes effective immediately and remains in effect while being challenged on appeal. Although section 410.305(a) provides that Subchapter G governs if there is a conflict with the Rules of Civil Procedure or any other rules adopted by the supreme court, there is no such conflict here. See Tex. Lab.Code Ann. § 410.305(a) (West 1996). We believe the statute clearly provides that the ultimate administrative ruling—whether granting or denying benefits—remains in effect until overturned by a final and enforceable judicial decision.4
The district court of Jim Wells County rendered judgment that the Fund is liable to Lopez, but the Fund took appeal of that judgment to the Fourth Court of Appeals. Lopez argues to this Court that the judgment nevertheless became effective because the Fund did not file a supersedeas bond. Our record contains no evidence on that issue, however, and the parties did not raise the matter in their summary judgment proceeding below. Issues not expressly presented to the trial court by written motion, answer, or other response shall not be considered on appeal as grounds for reversal of a summary judgment. See Tex.R. Civ. P. 166a(c). We overrule issue three.
Because we overrule appellant’s three issues, we affirm the judgment of the district court.
Tex. Lab.Code Ann. § 410.205(b).
We question whether, under the facts of this case, granting a motion to abate the Travis County cause would have been appropriate. The record reflects that, although the suit Lopez claims he intended to bring in Jim Wells County involved the same parties, it did not involve the same controversy. Lopez’s letter gave the Fund notice of his intent to pursue an action in tort. The Fund’s suit sought a declaration of when it was required to pay benefits under the statute, not a determination of its tort liability.
In his motion to transfer venue, Lopez argued that Travis County was not a proper permissive venue under Tex. Civ. Prac. & Rem.Code Ann. § 15.002(a) (West Supp.2000). He has abandoned this argument on appeal, and it does not appear in his brief to this Court.
The Fund agrees in its response to appellant’s motion for rehearing that a claimant who is successful before the appeals panel is entitled to continue receiving benefits until the end of the judicial review process, regardless of the trial court’s ruling.