Court of Appeals of Texas,

Corpus Christi-Edinburg.

Naomi OLIVARES

v.

TEXAS EMPLOYMENT COMMISSION, Mary McLeod Bethune Day Nursery, Inc., a/k/a Mary McLeod Bethune Day Care Nursery School, Inc.

No. 13-96-002-CV.

|

Dec. 11, 1997.

Attorneys & Firms

Gail D.C. Dorn, for Naomi Olivares.

Bill Kimbrough, for Texas Employment Commission.

Before Chief Justice SEERDEN and Justices YAÑEZ and CHAVEZ.

OPINION

Opinion by Justice YAÑEZ.

*1 Naomi Olivares appeals a take-nothing judgment in favor of the Texas Employment Commission (hereinafter “TEC”) in her cause of action for unemployment benefits. By ten points of error, appellant challenges the sufficiency of the evidence, admission of particular evidence, costs assessed, and denial of a jury trial. By one cross-point of error, TEC challenges our jurisdiction over this appeal. We will dismiss this appeal.

FACTUAL AND PROCEDURAL HISTORY

On December 14, 1993, Olivares suffered an injury to her back while in the course and scope of her employment as a teaching assistant for Mary McLeod Bethune Day Nursery, Inc., a/k/a Mary McLeod Bethune Day Care Nursery School, Inc. (hereinafter “Bethune”) in Corpus Christi, Texas. On December 15, 1993, Olivares was examined by her regular family physician, Dr. Larry Eckman, who kept her off work and on medication. She advised the executive director of Bethune, Jimmie McCurn, of her doctor’s orders, and began regular physical therapy. On December 22, 1993, Bethune directed Olivares to see Dr. Tone Johnson, who is a member of the Bethune board of directors and the “company doctor,” for a medical examination, which was performed on December 23, 1993. On that same day, Olivares received a letter from McCurn stating that Olivares was to return to work on December 28, 1993, in consideration of “no significant findings” regarding her injury. Olivares replied that she had not been released by her family doctor. Upon McCurn’s request, Olivares telephoned Dr. Eckman’s office to inquire about a release for light duty, but she was unable to speak with him until late morning, after her physical therapy on December 29, 1993. Eckman did release her for light duty work on that same day. Upon contacting McCurn with this information immediately thereafter, McCurn advised Olivares she was fired.

Olivares then telephoned the Texas Worker’s Compensation Commission¹ about the situation. McCurn, in turn, telephoned Olivares to explain that she had not been fired after all and to request that Olivares return to work on December 30, 1993. According to Olivares, it was agreed she would return after her physical therapy on December 30, 1993. When she reported to work on December 30, 1993, McCurn told her she was fired and gave her a letter stating she was fired, effective December 29, 1993, on the ground that she failed to report to work on December 29, 1993. A “Certificate for Return to School or Work” signed by Eckman indicates that Olivares was cleared for return to work on a “light duty” basis, effective December 29, 1993. According to McCurn’s testimony, Eckman completed the release of Olivares on December 28, 1993, and Eckman’s office tried to send the release to the workers’ compensation office by facsimile but it would not go through, so the workers’ compensation office asked McCurn whether the doctor’s office could send it by facsimile to her office; she acquiesced. The release certificate was sent to Bethune by facsimile at 5:39 p.m., December 29, 1993.

*2 Bethune apparently filed notice of facts adversely affecting Olivares’s claims for unemployment benefits, see Tex. Lab.Code Ann. § 208.004 (Vernon 1996), leading Olivares’s claim for benefits to be heard before a TEC examiner. See Tex. Lab.Code Ann. § 212.051 (Vernon 1996). By a ruling of the TEC examiner, Olivares was denied unemployment benefits, on the ground that she had been discharged for work-related misconduct. On June 29, 1994, pursuant to section 212.201 of the Texas Labor Code, Olivares filed an original petition in the 117th District Court in Nueces County for de novo review of the TEC’s findings. On January 17, 1995, the court granted a joint TEC-Bethune motion to sever Olivares’s claims for unemployment benefits against the TEC and Bethune from her causes of action against Bethune for emotional distress, loss of earnings, vacation, sick leave and other benefits, loss of “front” and back pay, and loss of past and future benefits. Though there is no contemporaneous documentation on record, the trial court granted a directed verdict in favor of the TEC on or about September 1, 1995.

On October 18, 1995, Olivares and Bethune filed an agreed motion to dismiss with prejudice all of Olivares’s claims against Bethune, but preserving for Olivares her cause of action, “if any,” against the TEC. That same day, the court granted the order dismissing with prejudice all claims against Bethune, with the proviso that Olivares “retain such rights as exist at law to an appeal as to the Order entered herein on or about September 1, 1995, directing a verdict in favor of the Defendant Texas Employment Commission.” On November 3, 1995, the court signed its final judgment, by which it ordered that a directed verdict be entered in favor of the TEC and Bethune, and affirmed the TEC’s denial of unemployment benefits. On November 14, 1995, Olivares filed a notice to limit the appeal to the issue of unemployment benefits denied her by the trial court.

We first will address the TEC’s cross-point challenging our jurisdiction over this appeal. White v. Schiwetz, 793 S.W.2d 278, 281 (Tex.App.-Corpus Christi 1990, no writ) (holding that jurisdiction is fundamental and may not be ignored). The TEC claims that because the statute by which appellant appealed the decision of the TEC examiner for judicial review required Olivares, the TEC, and Bethune to be parties to the case, all three must be parties to the case on appeal from the trial court; and because Bethune was dismissed from the action for judicial review, appeal of the court’s judgment favoring the TEC is impermissible. Olivares makes three responses: (1) the order of dismissal in relation to Bethune expressly reserves her appeal of the TEC ruling, which is reflected in the final judgment signed in November of 1995; (2) Bethune was “not dropped” from the litigation, rather the claims and causes against Bethune “were dismissed except as to the TEC appeal”; (3) Bethune actively participated in the hearing before court prior to being dismissed; and (4) terminated employees have the right under statute to resolve wrongful termination claims against their employer separate from unemployment benefits claims against the TEC.

ANALYSIS

*3 The TEC sends notice of a claim for unemployment benefits to the last employer of the claimant, Tex. Lab.Code Ann. § 208.002(a), who shall notify the TEC promptly of any facts known to him that may adversely affect the claimant’s right to benefits or affects a charge to that employer’s unemployment insurance contribution account. Tex. Lab.Code Ann. art. 208.004(a)(1),(2) (Vernon 1996). Notice filed by the former employer leads a TEC examiner to determine (1) whether the claimant is disqualified from benefits, (2) the resolution of any other issue affecting the claimant’s right to benefits, and (3) whether, if benefits are to be paid, a chargeback is to be made to the former employer’s account. Tex. Lab.Code Ann. § 212.051(a)(1)-(3) (Vernon 1996). A party aggrieved by a final decision of the TEC may obtain judicial review of the decision by bringing an action in a court of competent jurisdiction against the TEC, and each other party to the proceeding before the TEC must be made a defendant. Tex. Lab.Code Ann. § 212.201 (Vernon 1996). The joinder of other parties to the TEC proceeding in the action for judicial review is necessary in order for the reviewing trial court to be vested with jurisdiction.² Wren v. Texas Employment Comm’n, 915 S.W.2d 506, 508 (Tex.App.-Houston [14th Dist.] 1995, no writ); Olson v. Texas Employment Comm’n, 593 S.W.2d 866, 867 (Tex.Civ.App.-Corpus Christi 1980, writ ref’d n.r.e.); see also Texas Employment Comm’n v. Daniel, 241 S.W.2d 969, 971 (Tex.Civ.App.-Texarkana 1951, no writ) (interpreting the provision that “any other party to the proceeding before the [TEC] shall be made a defendant” as a “positive command” implicating the jurisdiction of the court). Where an appeal is taken from a judgment of the trial court, all parties whose interest in the subject matter of the proceeding could be adversely affected by a reversal or modification of the judgment are necessary parties to the appeal. Texas Employment Comm’n v. Gant, Inc., 604 S.W.2d 211, 213 (Tex.Civ.App.-San Antonio 1980, no writ).³

In the instant case, if the judgment favoring the TEC were reversed or modified on appeal, such that Olivares would be found eligible for unemployment benefits, Bethune, as Olivares’s former employer, could have unemployment benefits paid to Olivares charged to its contribution account. See Tex. Lab.Code Ann. § 204.021 (Vernon 1996).⁴ We hold this would adversely affect Bethune’s interest, such that Bethune would be a necessary party to an appeal of the trial court’s judgment. Because Bethune was dismissed with prejudice from all claims against it, however, we further hold that Bethune ceased to be a party to the litigation, and therefore no appeal is possible. The TEC’s cross-point is sustained.

Accordingly, we dismiss this appeal for want of jurisdiction.

	Footnotes
1		Appellant’s brief states that she contacted the Texas Employment Commission. The record reflects she contacted “workman’s comp.”
2		All cases cited in support of this rule are interpretations of the former statute, Tex.Rev.Civ. Stat. Ann. art. 5221b-4(i) (Vernon 1964), which was repealed and codified as Tex. Lab.Code Ann. § 212.201, effective September 1, 1993.
3		This holding also is premised on the former statute, Tex.Rev.Civ. Ann. art. 5221b-4(i).
4		“The amount of benefits paid to a claimant for a benefit year shall be charged to the accounts of each of the claimant’s employers during the claimant’s base period.” Tex. Lab.Code Ann. § 204.021(a) (Vernon 1996).