Court of Appeals of Texas, Houston (14th Dist.).
ZURICH AMERICAN INSURANCE CO., Appellant/Cross-Appellee
Marta DIAZ, Appellee/Cross-Appellant
Texas Department of Insurance – Division of Workers’ Compensation and Commissioner Ryan Brannan, in His Official Capacity, Cross-Appellees
Opinions filed August 30, 2018
Rehearing Denied October 25, 2018
Rehearing En Banc Denied December 28, 2018
*301 On Appeal from the 201st District Court, Travis County, Texas, Trial Court Cause No. D-1-GN-13-001043
Attorneys & Firms
Ted Anthony Ross, Austin, TX, for Appellee.
David L. Brenner, Austin, TX, for Appellant.
Panel consists of Justices Jewell.
Tracy Christopher, Justice
We consider two overarching questions in this workers’ compensation case. The first question is whether the trial court properly dismissed certain claims against an administrative agency and its commissioner for lack of jurisdiction. We conclude that the trial court made the correct ruling, and we affirm that portion of the trial court’s judgment.
The second, and more substantive, question is whether Marta Diaz can recover death benefits on behalf of her late husband, Encarnacion, who died several weeks after suffering an on-the-job injury. Marta pursued her claim through the administrative process, but her claim was denied because she filed it thirteen months after her husband’s death, and the insurance carrier objected that the claim was filed after a one-year statutory deadline. Marta sought judicial review of the administrative decision, and the trial court granted her relief after ruling on a set of cross-motions for summary judgment. The trial court held that the carrier untimely raised the statutory bar, or in the alternative, that Marta established good cause for filing her claim after the one-year deadline.
We conclude that the trial court erred by granting the summary judgment, and that neither Marta nor the carrier is entitled to judgment as a matter of law. Accordingly, we reverse that portion of the trial court’s judgment and remand for additional proceedings consistent with this opinion.
Encarnacion suffered a severe injury on April 16, 2010, when he was burned by hot oil while cleaning a fryer in the kitchen of a hotel. His employer promptly filed a first report of injury with Zurich American Insurance Company, its workers’ compensation insurance carrier. Zurich notified the Division of Workers’ Compensation and then paid compensation benefits to Encarnacion from April 17, 2010 to May 14, 2010.
Encarnacion died at his home on May 13, 2010. Zurich initially contested that Encarnacion’s death was work-related and did not pay death benefits to Marta, his surviving spouse. Marta filed her claim for death benefits on June 21, 2011, more than one year after Encarnacion’s death.
Zurich and Marta attended a benefit review conference (“BRC”) in November 2011. Following the BRC, the Division issued a report stating that the parties had resolved one of their issues: they all agreed that Encarnacion had suffered a compensable injury that resulted in his death. The report further stated that the parties had two issues that were left unresolved. *302 Those issues were (1) “Is [Zurich]’s defense on compensability limited to the existence of injury resulting in death defense listed on the Notice of Denial of Compensability and Refusal to Pay Benefits (PLN- ), that was filed with the Division on 06/02/10?”; and (2) “If [Zurich]’s defense is not limited to the existence of injury resulting in death defense listed on the Notice of Denial of Compensability and Refusal to Pay Benefits (PLN- ), is [Zurich] relieved from liability under TEX LABOR CODE ANN Section § 409.007 because of [Marta]’s failure to timely file a claim for death benefits with the Division?”
The Division conducted a contested case hearing (“CCH”) in November 2012 to decide the disputed issues remaining after the BRC. Following the CCH, the Division issued a decision and order (the “CCH Decision”). The Division’s hearing officer concluded that Marta was the proper legal beneficiary of Encarnacion, an issue which is undisputed in this appeal. The officer further concluded that (1) Zurich’s right to dispute compensability of Marta’s claim for death benefits was not limited to the basis identified in its June 2, 2010 notice; (2) Zurich was relieved of liability under section 409.007 of the Texas Workers’ Compensation Act (the “Act”) because Marta failed to file her claim within one year of Encarnacion’s death; and (3) Marta did not have good cause for failing to file her claim timely.
Marta appealed to the appeals panel, but because the appeals panel did not issue its own decision, the CCH Decision became the final decision of the appeals panel by operation of law.1 Marta challenged that decision by filing a petition for judicial review in district court. She named as defendants Zurich, the Division, and the Division’s Commissioner, Rod Bordelon.2 As to Zurich, Marta requested the court to determine that she was entitled to death benefits.3 As to the Division and the Commissioner, Marta sought declarations that the Division and the Commissioner had “committed ultra vires acts by failing to properly follow and enforce the Texas Workers’ Compensation Act and [Division] rules.”
Zurich answered and filed a plea to the jurisdiction seeking dismissal of all of Marta’s claims, including her declaratory judgment claims, to the extent they exceeded the scope of issues decided during the administrative proceedings. The Division and the Commissioner answered with a general denial and filed a Rule 91a motion to dismiss based on sovereign immunity. The trial court denied the Division’s and the Commissioner’s Rule 91a motion, but dismissed all claims against the Division and the Commissioner by sua sponte granting a plea to the jurisdiction in their favor. The court also granted Zurich’s plea to the jurisdiction as to Marta’s declaratory judgment claim against it.
Marta and Zurich filed cross-motions for summary judgment on the remaining issues, and the trial court signed a final judgment that:
*303 (1) denied summary judgment for Marta on the issue of whether Marta’s one-year deadline to file a death benefits claim was tolled because Zurich did not file a report of death separate from the initial report of injury;
(2) granted summary judgment to Marta on the grounds that (a) Zurich did not properly and timely raise the one-year limitations defense and Zurich was limited to the compensability defense raised in its June 6, 2010 notice disputing compensability, and (b) Marta alternatively had good cause for filing her claim after the one-year deadline because Zurich failed to notify her and the Division of the compensable death under 28 Tex. Admin. Code § 132.17;
(3) set aside the CCH Decision;
(4) ordered Zurich to pay death and burial benefits for Encarnacion’s compensable work-related death, less attorney’s fees;
(5) ordered a lump-sum payment of attorney’s fees to Marta’s counsel;
(6) assessed court costs against Zurich; and
(7) awarded post-judgment interest on attorney’s fees, expenses, and court costs of five percent.
Both Zurich and Marta have appealed the judgment. Marta also challenges the trial court’s orders dismissing her claims against the Division and the Commissioner and granting Zurich’s plea to the jurisdiction.
II. JURISDICTIONAL ISSUES
We begin with Marta’s challenges to the trial court’s dismissal of her declaratory judgment claims against Zurich, the Division, and the Commissioner.
A. Standard of Review
Subject-matter jurisdiction is essential to the court’s authority to decide a case. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
B. Sovereign Immunity and the Uniform Declaratory Judgments Act
The doctrine of sovereign immunity “bars suit against the state and its entities” unless the state waives immunity. Sefzik, 355 S.W.3d at 621.
However, the ultra vires exception to sovereign immunity permits private parties to bring claims against state officials in their official capacities for nondiscretionary acts unauthorized by law. Heinrich, 284 S.W.3d at 372.
C. “Redundant Relief” and the UDJA
When a claimant has invoked a statutory means of attacking an agency order, a trial court lacks jurisdiction over an additional purported claim under the UDJA that would merely determine the same issues and provide substantially the same relief as the available statutory remedies invoked. See, e.g., Tex. Parks & Wildlife Dep’t v. Sawyer Trust, 354 S.W.3d 384, 388 (Tex. 2011).
D. Marta’s Pleadings
Marta sought broad declarations regarding the tolling provisions of Chapter 409. She also contended that the Division and the Commissioner had not “properly interpreted, applied, and enforced the Texas Workers’ Compensation Act and the [Division’s] previously adopted rules” (emphasis added). She requested a declaration that “an insurance carrier must timely raise any disputes to the payment of workers’ compensation benefits in writing pursuant to Chapter 409” and “an insurance carrier is limited to the grounds raised absent newly discovered evidence which could not reasonably have been discovered earlier.” She further claimed that “the Commissioner, and the Commissioner’s designees, have committed ultra vires acts by failing to properly follow and enforce the Texas Workers’ Compensation Act and [Division] rules as herein alleged.” She complained that “such actions or inactions do not follow the proper construction of and are in violation of [the Act’s] Chapter 402, including section 402.00116 and Chapter[ ] 409, including sections 409.005, 409.008, 409.010, 409.021, 409.022 and Chapter 410 including sections 410.163, 410.168” (emphasis added). As is clear from Marta’s allegations, she challenged the Division and Commissioner’s interpretation, application, and enforcement of the Act.
1. Immunity of the Division
As to the Division, Marta’s claims do not show a waiver of immunity because the allegations are only asking for a declaration of her statutory or legal right. Sefzik, 355 S.W.3d at 621.
2. Immunity of the Commissioner
*305 Marta contends the trial court had jurisdiction over her claims against the Commissioner under the ultra vires exception to sovereign immunity. Creedmoor-Maha Water Supply Corp. v. Tex. Comm’n on Envtl. Quality, 307 S.W.3d 505, 517–18 (Tex. App.—Austin 2010, no pet.) ). Accordingly, the trial court did not err in dismissing Marta’s claims against the Commissioner.
3. Zurich’s plea to the jurisdiction
Marta sought declaratory relief related to Zurich’s right to challenge the timeliness of her death benefits claim, as well as the Division’s finding that Zurich was relieved of liability. Her complaints and requested relief mirror the issues that are the subject of her suit for judicial review. Such redundant relief is unavailable under the UDJA. See Ben Robinson Co., 934 S.W.2d at 153 (“When a statute provides a method for attacking an agency order, a declaratory judgment action directed at that order will not lie.”).
For the foregoing reasons, the trial court did not err in dismissing on jurisdictional grounds Marta’s claims for declaratory relief. We therefore overrule her second issue, and turn to the parties’ judicial review issues.
III. JUDICIAL REVIEW ISSUES
A. Standard of Review
The trial court disposed of the remaining issues with rulings on a set of cross-motions for summary judgment, which were submitted on both traditional and no-evidence grounds. We review both types of motions de novo. See Boerjan v. Rodriguez, 436 S.W.3d 307, 310 (Tex. 2014) (per curiam).
In a traditional motion for summary judgment, the movant carries the burden of showing that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).
In a no-evidence motion for summary judgment, the movant asserts that there is no evidence of one or more essential elements of the claims for which *306 the nonmovant bears the burden of proof at trial. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
When both parties move for summary judgment and the trial court grants one motion and denies the other, we consider all questions presented, examine all of the evidence, and render the judgment the trial court should have rendered. See Commr’s Court of Titus Cty. v. Agan, 940 S.W.2d 77, 81 (1997).
B. Was the filing period tolled for Marta?
Marta moved for a partial summary judgment on the issue of tolling. She argued that her one-year period to file a claim for death benefits never began to run because Zurich filed a report of injury, but not a report of death. Without a report of death, Marta argued that her filing period was automatically tolled.
Zurich argued in response that it was only required to file one report of injury because there are no provisions in the Act expressly mandating that any additional or supplemental reports be filed in the event that an injured employee subsequently dies. If a second report is not required, Zurich argued that its failure to file such a report would not toll Marta’s one-year period to file a claim for death benefits.
The trial court agreed with Zurich and denied Marta’s motion for summary judgment.
1. The issue was presented to the Division.
Before we address the merits of the parties’ arguments, we first consider a jurisdictional argument that Zurich raises on appeal. Zurich contends that the trial court lacked jurisdiction over Marta’s tolling argument because that issue was not raised or adjudicated before the Division.
The issues decided by the appeals panel are those decided in the CCH, as developed by the record of that hearing. Martinez, 539 S.W.3d at 273–75.
We do not have a transcript of the administrative proceedings, but the hearing officer recited the facts of those proceedings in the CCH Decision. Those recitations include the following:
Claimant argues in the alternative that carrier did not file an additional DWC-1 at the time of decedent’s death. Because of this, the time for claimant beneficiary to file a claim for death benefits is tolled. Carrier filed its DWC-1 on April 19, 2010 for the original injury. Carrier argues that this is unnecessary and not required by the Rules.
These recitations indicate that Marta presented her tolling argument to the Division. Therefore, we conclude that the trial court had jurisdiction to consider the same issue. See Croysdill v. Old Republic Ins. Co., 490 S.W.3d 287, 296 (Tex. App.—El Paso 2016, no pet.) (concluding that employee exhausted administrative remedies and was entitled to judicial review of grounds of which employee “argued vigorously” before hearing officer, despite hearing officer not making specific findings or conclusions on these grounds; hearing officer “impliedly rejected” claim by ruling against employee).
2. Section 409.005 requires only one report, not two.
Marta argued in her motion for summary judgment that section 409.005 required Zurich to file a second report after Encarnacion died, and that section 409.008 required tolling of the one-year period for filing a death benefits claim because Zurich did not file this second report of death.
Marta’s argument finds no support in the text of either statute. Section 409.005 requires the employer to report to the carrier “an injury that results in the absence of an employee of that employer from work for more than one day.” Id. § 409.005(a). The carrier must then file the report with the Division. Id. § 409.005(d), (e). Section 409.005 contains no requirement to file a second report if a properly reported injury later results in death. If the legislature intended to require an employer or carrier to file a report of injury after the first day of lost time, and then a second report if the injured employee subsequently died, the statute would say so. See Cornyn v. Univ. Life Ins. Co., 988 S.W.2d 376, 379 (Tex. App.—Austin 1999, pet. denied) (explaining that courts must presume words used have a purpose and “every word excluded was excluded for a purpose”).
As to section 409.008, it provides:
Failure to File Employer Report of Injury; Limitations Tolled
If an employer or the employer’s insurance carrier has been given notice or has knowledge of an injury to or the death of an employee and the employer or insurance carrier fails, neglects, or refuses to file the report under Section 409.005, the period for filing a claim for compensation under Sections 409.003 and 409.007 does not begin to run against the claim of an injured employee or a legal beneficiary until the day on which the report required under Section 409.005 has been furnished.
Tex. Labor Code § 409.008.
This tolling provision is only effective when “the employer or insurance carrier fails, neglects, or refuses to file the report under Section 409.005.” Id. Because it is undisputed that a report of injury was promptly made under Section 409.005, this *308 tolling provision would not excuse Marta’s late filing.
Marta does not cite any case authority supporting her interpretation of section 409.005 in reporting an employee’s injury, must also file a second report if the injured employee subsequently dies from the reported work-related injury.
3. Rule 132.17(d) does not include a tolling provision.
Marta also claims that Zurich failed to comply with rule 132.17. See Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 254 (Tex. 1999) (in construing the Division’s administrative rule, the primary objective is to give effect to the Division’s intent).
In sum, nothing in the statutory provisions or rules on which Marta relies supports her position that the time to file her death benefits claim was tolled. Zurich complied with the clear and unambiguous language of section 409.008 does not trigger tolling when a timely reported injury results in death and a separate report of death is not filed. Thus, we conclude the one-year time period for filing a death benefits claim was not tolled.
The trial court correctly denied Marta’s motion for summary judgment on this issue.
C. Is Marta’s claim time-barred under section 409.007?
The parties filed additional motions for summary judgment addressing section *309 409.007. That statute establishes the one-year deadline for filing claims of death benefits, along with two exceptions. In pertinent part, the statute provides:
(a) A person must file a claim for death benefits with the division not later than the first anniversary of the date of the employee’s death.
(b) Failure to file in the time required by Subsection (a) bars the claim unless:
1. the person is a minor or incompetent; or
2. good cause exists for the failure to file a claim under this section.
Tex. Lab. Code § 409.007.
The Third Court of Appeals, from which this appeal was transferred, has likened Tex. Workers’ Comp. Comm’n, Appeal No. 94224, 1994 WL 121380, at *5 (Apr. 1, 1994) (making the same observation regarding a similar provision under the Act).
Zurich has also likened the statute to an affirmative defense of limitations. In its motion for summary judgment, Zurich argued that it was relieved from liability because there was no dispute that Marta had filed her claim after the one-year anniversary of Encarnacion’s death.
Zurich also addressed the two exceptions. Zurich argued that the first exception did not apply because there was no dispute that Marta was neither a minor nor incompetent. As for the second exception, Zurich framed its argument on both no-evidence and traditional grounds. Zurich asserted that Marta had no evidence of good cause. Zurich also argued that the good-cause arguments asserted by Marta in the administrative proceedings were invalid as a matter of law.
Marta filed a combined motion for summary judgment and response. Marta argued that she was entitled to judgment as a matter of law on either of two grounds: (1) that Zurich had waived its limitations defense by not asserting it within sixty days of the notice of Encarnacion’s death; or (2) that “good cause is established almost per se” because Zurich failed to send her a plain language notice, as required by rule 132.17. In response to Zurich’s motion, Marta argued that she raised a fact issue as to good cause for several reasons, including the following: (1) she did not realize that Encarnacion’s death was work-related; (2) she does not read or speak English; (3) she has a limited education from El Salvador; (4) she was not provided any information from the Division or Zurich about filing a claim; (5) she only learned that Zurich no longer disputed that Encarnacion’s death was work-related after she filed her claim; and (6) Zurich “misled” her by failing to inform her that she might be entitled to death benefits.
Zurich filed a reply, which reiterated its argument that Marta had not established good cause. And in response to Marta’s waiver issue, Zurich argued that its burden to assert a limitations defense did not arise until after Marta had filed her claim for death benefits.
The trial court denied Zurich’s motion and granted Marta’s motion on both of the theories asserted in that motion.6 We first *310 consider whether either of those theories is meritorious, beginning with the waiver issue.
1. Zurich was not required to assert a limitations defense within sixty days of the notice of death.
Marta’s waiver argument largely depends on 409.022 of the Texas Labor Code. Citing these statutes, Marta contends that Zurich was required to assert its limitations defense within sixty days of receiving notice of Encarnacion’s death, and that Zurich’s failure to timely raise that defense resulted in waiver of the defense.
Neither of these statutes expressly requires a carrier to assert the limitations defense within sixty days of the notice of death. If they did, then in most cases, a carrier would have to assert the defense preemptively because the carrier typically receives the notice of death more than sixty days before the one-year limitations period has even expired. Nothing in the Act or in our case law requires such a premature assertion of a defense.7
The Act itself is silent as to when the carrier must assert the limitations defense. When a statute does not fix a time limit for making a claim or defense, the law normally imposes a reasonable time. See section 409.007 defense because employer did not raise it within “reasonable time” after discovering facts indicating the defense might apply).
We conclude that Zurich was not required to assert its limitations defense within sixty days of the notice of death, and that the trial court erred by granting summary judgment to Marta on that basis.
2. Zurich’s failure to comply with rule 132.17 does not entitle Marta to judgment as a matter of law.
Rule 132.17 provides the following:
A carrier that identifies or becomes aware of a potential beneficiary shall notify the potential beneficiary of potential entitlement to benefits, using a plain language notice containing language and content prescribed by the Commission. This notice shall be sent within seven days of the date the carrier identified or was otherwise made aware of the identity and means of contacting the potential beneficiary.
28 Tex. Admin. Code § 132.17(d).
This rule was adopted in 2000 and it was effective ten years later at the time of Encarnacion’s death, but Zurich never sent a plain language notice to Marta, as required *311 by the rule. According to Zurich, there was no notice to send at the time of Encarnacion’s death because the Division had not made a notice available until 2012, two years later.8
Marta argues that Zurich’s failure to send a plain language notice establishes good cause for her late filing as a matter of law. This argument is indistinguishable from the argument that we previously considered—and rejected—in connection with the tolling issue.
Rule 132.17 says nothing about either tolling or good cause, and we must presume that these omissions are deliberate. Cf. Fireman’s Fund Cty. Mut. Ins. Co. v. Hidi, 13 S.W.3d 767, 769 (Tex. 2000) (per curiam) (“When the Legislature has employed a term in one section of a statute and excluded it in another, we presume that the Legislature had a reason for excluding it.”). A carrier’s failure to comply with the rule may be a relevant factor in determining whether a beneficiary has good cause for filing a claim late, but there is no basis for concluding that the carrier’s failure establishes good cause as a matter of law.
We conclude that the theories specified in the trial court’s final judgment are not meritorious, and that Marta was not entitled to judgment as a matter of law.
3. Zurich is not entitled to judgment as a matter of law either.
Zurich also contends that the trial court erred by denying its motion for summary judgment. Zurich’s motion was submitted on traditional and no-evidence grounds, and both of those grounds require us to consider whether Marta at least raised a fact issue as to good cause.
Good cause in this context is measured by whether the claimant has pursued the claim with such diligence as a reasonably prudent person would have used under the same or similar circumstances. See U.S. Fid. & Guar. Co. v. Herzik, 359 S.W.2d 914, 916–17 (Tex. Civ. App.—Houston 1962, writ ref’d n.r.e.).
Marta responded to Zurich’s motion with an affidavit, which set forth the following facts regarding her claim of good cause. Marta testified that she initially did not know why her husband died, but she believed that the death might have been the result of bad health care. She used a lawyer referral service and found a lawyer who agreed to represent her in a potential medical malpractice case. Through all of 2010, she did not receive a single letter or speak to a single person from Zurich or the Division. She contacted a new lawyer on June 20, 2011, and she filed her claim for death benefits the very next day.
Marta testified that she has a limited sixth grade education from El Salvador, and that she does not read or speak English. She also testified that she believes she has good cause for filing a late claim because she was never provided any information about filing a claim from either *312 Zurich or the Division. She also believed that Zurich misled her by not informing her that the death was work-related and that she may be entitled to benefits.
Zurich argues that all of these factual excuses amount to a claim of ignorance of the law, which does not demonstrate good cause.
Dillard are cases brought by an injured worker, rather than a beneficiary, and they all predate rule 132.17, which was adopted to aid beneficiaries in asserting their claims timely. The plain language notice required by the rule and approved by the Division clearly informs a claimant of the need to file a claim within one year of the date of death.9 Zurich did not provide that notice, and even though the Division had not yet approved a form by the time of Encarnacion’s death, Zurich produced no evidence that it was unable to notify Marta due to the lack of a form. Although Zurich’s failure to give notice does not establish good cause for Marta’s late filing as a matter of law, it is a factor to consider in the good-cause analysis.
Marta testified by her affidavit to another fact that raises a fact issue of good cause for late filing. Marta testified that her husband suffered burns, was treated, and then returned home. He died at home over a month later. She testified that he did not appear to have died from anything to do with the burn injuries. Case law has recognized that a claimant may have good cause for late filing when the claimant did not know that the death was work-related. See Hurd v. Republic Underwriters, 105 S.W.2d 428, 429 (Tex. Civ. App.—El Paso 1937, writ dism’d).
Indeed, Zurich contested that Encarnacion’s death was work-related within sixty days of Encarnacion’s death. Zurich never withdrew this contest and only admitted compensability during the BRC in November 2011, some eighteen months after Encarnacion’s death. Zurich did not negate Marta’s claim of good cause. A fact issue remains.
We affirm the portion of the trial court’s judgment that dismisses on jurisdictional grounds Marta’s claims for declaratory judgment. We also affirm the portion of the trial court’s judgment that denies Marta’s motion for summary judgment on the issue of tolling. We reverse the remaining portions of the trial court’s judgment and *313 remand the case back to that court for additional proceedings consistent with this opinion. Our resolution of these issues makes it unnecessary for us to address Zurich’s complaint about Marta’s attorney’s fees because these fees “shall be payable from the claimant’s recovery.” Tex. Lab. Code § 408.221(b).
(Jewell, J., concurring and dissenting).
CONCURRING AND DISSENTING OPINION
Kevin Jewell, Justice
I agree we should affirm that portion of the trial court’s judgment dismissing on jurisdictional grounds Marta’s claims for declaratory judgment. I therefore join the majority opinion as to the jurisdictional issues.
I also join section III.B. of the majority opinion, which concludes that the trial court correctly denied Marta’s motion for summary judgment on her tolling argument.
I concur in part and dissent in part from section III.C. of the majority opinion. I concur with the majority that Zurich did not waive its reliance on section 409.007’s one-year bar for the reasons Marta asserts. I also concur with the majority that the trial court erred in granting summary judgment for Marta on the good cause issue because she failed to conclusively establish good cause for failing to file her death benefits claim on or before the one year anniversary of Encarnacion’s death. However, I disagree with the majority that Zurich is not entitled to summary judgment on good cause. In my view, Zurich either proved its entitlement to judgment as a matter of law or Marta did not raise a genuine issue of material fact.
• I would affirm the judgment for Zurich on the tolling issue.1 It is unclear whether the majority opinion is intended to permit the parties to revisit Marta’s tolling issue on remand, but to the extent it does, I respectfully dissent.
• I agree the trial court erroneously granted Marta’s summary judgment motion on grounds that Zurich waived Garza v. Williams Bros. Constr. Co., 879 S.W.2d 290, 294-95 (Tex. App.—Houston [14th Dist.] 1994, no writ). However, I write separately to expand upon the majority’s analysis of this issue.
• I agree the trial court erroneously granted Marta’s summary judgment motion on good cause. However, because Zurich filed a cross-motion for summary judgment on good cause, and because the evidence and Texas law compel a judgment in Zurich’s favor on good cause, I would render judgment for Zurich. Because the majority does not do so, I respectfully dissent.
*314 A. No Waiver of Section 409.007
A workers’ compensation insurer must pay death benefits to an employee’s legal beneficiary if a compensable injury to that employee results in death. See 28 Tex. Admin. Code § 122.100(a). The statute provides, in pertinent part:
(a) A person must file a claim for death benefits with the division not later than the first anniversary of the date of the employee’s death.
(b) Failure to file in the time required by Subsection (a) bars the claim unless:
1. the person is a minor or incompetent; or
2. good cause exists for the failure to file a claim under this section.
Marta argued in her summary judgment motion that Zurich waived reliance on section 409.007 within sixty days of the notice of death, but write separately to expand on the reasons why our holding is appropriate.
Marta bases her argument on (b).
My reading of the cited provisions in the context of the Act as a whole leads me to conclude, like the majority, that Zurich was not required to raise a 28 Tex. Admin. Code § 132.17(b).
In contrast, generally a carrier would not have cause to raise a Edwards v. City of Tomball, 343 S.W.3d 213, 221 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“Construction of a statute that would render a provision useless is not favored in the law.”).
Marta also relies on rule 132.17(b), which is expressly applicable to death benefit claims and establishes a similar sixty-day deadline for the carrier to file a notice of denial if the carrier believes it is not liable for the death or the death is not compensable.3 Again, the rule’s intent as discerned from its text is to establish timeframes for filing notices of denial on death cases and to require such notices to be based on the results of the carrier’s prompt investigations. See 28 Tex. Admin. Code § 132.17(f). The deadline for the carrier to dispute eligibility is fifteen days after the latest of three potential dates: (1) the date the carrier received the death benefits claim; (2) the date of final adjudication of the carrier’s denial of compensability or liability under rule 124.2 and rule 132.17(b); or (3) the expiration of the carrier’s right to deny compensability/liability under rule 132.17(a). Id. at § 132.17(f)(1). Construing these enumerated deadlines in light of the entire rule, it is clear that if the date the carrier receives a death benefits claim is the latest of the three potential triggering dates, then the carrier has fifteen days to investigate and potentially dispute entitlement even if the sixty-day period under subsection (b) has passed. For example, if the carrier received a death benefits claim 180 days following a death notification and the documentation provided by the claimant showed that the claimant was not the decedent’s legal beneficiary, the carrier has the right to dispute eligibility on that basis even though the sixty-day period under subsection (b) has expired.
Accordingly, contrary to Marta’s argument, neither rule 132.17(b) nor Edwards, 343 S.W.3d at 221.
Relevant commission appeals decisions, though not controlling, support the court’s holding.4 See section 409.007).5
Regarding the characterization of section 409.007 grounds, as we are considering only whether Zurich’s failure to assert the defense within sixty days of the notice of death waived the defense. The panel unanimously agrees it did not.
B. Good Cause
The remaining basis for summary judgment in Marta’s favor is the trial court’s ruling that she conclusively established good cause for filing her claim after the one-year deadline, which Zurich challenges in its first issue. Zurich filed a cross-motion for summary judgment asserting that Marta’s claim was untimely and without good cause as a matter of law, or that Marta had no evidence of good cause. The majority concludes that neither side is entitled to summary judgment and remands the case for trial on good cause. I respectfully disagree and would render judgment for Zurich because the record contains no legally sufficient evidence of good cause and the reasons offered by Marta do not constitute good cause as a matter of law.
*318 1. Additional Undisputed Facts
To the familiar summary judgment standards of review cited by the majority, I add the following: evidence favoring a summary judgment movant’s position will not be considered unless it is uncontroverted. KBG Invs., LLC v. Greenspoint Prop. Owners’ Ass’n, Inc., 478 S.W.3d 111, 115 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (same).
The summary judgment record establishes undisputed facts the majority does not mention. I expand on the factual background because several uncontroverted facts are relevant to the good cause issue and support the judgment I believe should issue.
Encarnacion suffered a work-related compensable injury on April 15, 2010, when he was burned by hot oil while working at the DoubleTree Hotel in Austin. The employer timely provided a first report of injury to its workers’ compensation insurance carrier, Zurich. Zurich promptly notified the Division. Zurich paid workers’ compensation benefits to Encarnacion from April 17, 2010 to May 14, 2010. Encarnacion died on May 13, 2010.
Zurich initially disputed that Encarnacion’s death was related to his job injury and filed a dispute of death benefits with the Division on June 2, 2010. Zurich sent a copy to Encarnacion’s address in Pflugerville, Texas. Marta did not receive this notice. After further investigation, Zurich determined that Encarnacion’s death in fact resulted from his work-related injury. That matter was resolved favorably to Marta at the BRC and is not at issue.
Zurich began attempts to identify and locate Encarnacion’s beneficiaries. Zurich understood that Encarnacion was married and believed his widow to be Marta. Initial attempts to confirm Marta’s address or telephone number proved unsuccessful. In October 2010, Zurich sent an investigator to Encarnacion’s Pflugerville address to verify whether Marta lived there, but the investigator was unable to confirm she shared this address.
Meanwhile, Marta hired an attorney to investigate potential medical malpractice liability for Encarnacion’s death. This attorney instructed Encarnacion’s family not to speak with representatives from the “insurance company.” Zurich’s investigator received a voicemail from an attorney claiming to represent Marta. The investigator contacted the attorney and confirmed that he represented Marta in connection with Encarnacion’s death. Zurich’s claim file indicates it was awaiting receipt of a representation letter, but the record does not show that Zurich received one or that the attorney otherwise contacted Zurich or the Division. The attorney’s representation of Marta terminated, but the record does not show when the relationship ended.
Also in October 2010, Zurich’s adjuster, Denise Limon, learned that Marta scheduled a meeting with James Prendeville at the DoubleTree Hotel to discuss Encarnacion’s retirement benefits. Prendeville agreed to call Limon during the meeting so Limon could discuss Marta’s potential claim for death benefits. Limon informed Prendeville that Encarnacion’s death was compensable and sent him a death benefits claim form to provide to Marta at the *319 meeting. However, Marta did not attend the scheduled meeting, and it is undisputed that she never received a death benefit claim form from Zurich. Marta testified in her affidavit that she received no letters from Zurich or the Division during 2010.
The employer provided Limon with a contact phone number for Marta’s daughter, Nancy Diaz, on November 15. According to Limon, she called Nancy that day. Nancy testified in an affidavit that she recalled “one phone call and one voicemail from a female person which [she] received in late 2010, and [she] told this person we had an attorney Michael Wash representing us and that she should contact him.” It is undisputed that Marta’s counsel and Limon never spoke. Limon left at least one other voicemail message with Nancy in February 2011 seeking contact information for the family’s attorney, but received no response.
Limon sought a BRC with the Division on May 11, 2011 to determine “entitlement to death benefits and/or burial benefits.” Limon stated in a letter that Zurich attempted to contact Marta on November 15, 2010, February 4, 2011, April 11, 2011, and May 11, 2011.6 Limon also designated Marta’s contact information as the same Pflugerville address to which Zurich previously mailed information addressed to Encarnacion. Zurich’s claim file notes indicate that Limon left a voicemail with “the widow” on May 11. The Division mailed a notice to Marta scheduling a BRC for June 14. Marta received this notice in May. Marta and Nancy went to the BRC on June 14 but were told they arrived late, so the conference was reset.
Marta retained attorney Richard Pena, who filed a claim for death benefits on June 21, 2011. Marta filed an amended claim for death benefits on August 15, 2011.
The Division conducted a BRC on November 17, 2011. Marta attended with counsel and provided copies of her claim and amended claim for death benefits to Zurich, which was the first time Zurich received notice of Marta’s claim. The parties did not reach agreement at the BRC and twelve days later, on November 29, Zurich filed with the Division a “Notice of Denial of Compensability/Liability and Refusal to Pay Benefits” and mailed a copy to Encarnacion’s address. Citing section 409.007, Zurich denied the claim for death benefits because Marta did not file the claim within one year.
Marta’s factual contentions supporting her good cause argument condense to two reasons: (1) she was never provided any information about filing a claim from Zurich or the Division, citing several administrative rules or statutes with which she contends Zurich failed to comply; and (2) she was never notified, and did not believe, that Encarnacion’s death was work-related. The trial court agreed with the first reason and ruled specifically that “good cause exists for Marta Diaz’s late filing of a claim due to Defendant Zurich’s failure to notify the Plaintiff and the [Division] of the compensable death under [Division] Rule 132.17.” Rule 132.17(d) requires a carrier that “identifies or becomes aware of a potential beneficiary” to “notify the potential beneficiary of potential entitlement to benefits, using a plain language notice containing language and content prescribed by the Commission.” 28 Tex. Admin. Code § 132.17(d).7 Zurich acknowledges *320 it did not send the notice contemplated by rule 132.17(d).
As to the meaning of “good cause,” we do not write on a blank slate. For decades, Texas courts have measured good cause in the workers’ compensation context by whether the claimant has pursued rights with such diligence as a reasonably prudent person would have used under the same or similar circumstances. See, e.g., Garrett, 816 S.W.2d at 802. To be sure, the minimal degree of diligence required need be only that which a reasonably prudent person would have exercised under the same circumstances, but the beneficiary must pursue the claim with reasonable diligence or demonstrate incapacity to have exercised diligence.8
It is helpful to recall what it means to be diligent. “Due diligence” is “[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.” Scott v. Cameron Cty., No. 13-05-00117-CV, 2007 WL 1365442, at *2 (Tex. App.—Corpus Christi-Edinburg May 10, 2007, no pet.) (mem. op.) (“The term ‘diligence’ is defined as ‘a continual effort to accomplish something’ and ‘care; caution; the attention and care required from a person in a given situation.’ ”).
The formulation and application of the good cause test over the years, coupled with the commonly understood meaning of the word “diligence,” signals that a key part of pursuing rights by exercising diligence requires at least some action by the claimant or beneficiary; it requires evidence of “care” and “prudence” in the prosecution of the claimant’s workers’ compensation rights. See Lee, 530 S.W.2d at 296. Claimants must do something—anything a reasonable person similarly situated would have done—to advance their rights. Satisfactory care and prudence may include, depending on circumstances, seeking and relying upon a doctor’s opinion. Generally, inaction uncoupled from incapacity is neither diligence nor good cause, absent reasonable reliance on medical or other representations justifying delay.
*321 Marta presented no evidence showing that she took any action to advance her workers’ compensation rights. She explains that she did not know her rights because Zurich did not inform her of the law. Yet, among the most fundamental principles gleaned from jurisprudence examining good cause in the workers’ compensation context is that claimants are presumed to know the law. See, e.g., Garrett, 816 S.W.2d at 802. Zurich’s failure to inform Marta of rights the law presumes she knows cannot constitute legally sufficient evidence of good cause. Therefore, Zurich’s failure to comply with rule 132.17(d) neither supports summary judgment in Marta’s favor nor defeats Zurich’s entitlement to summary judgment. Zurich’s failure to send the notice under rule 132.17(d) is not a relevant factor in determining good cause.
Marta has not cited any court cases or decisions from the workers’ compensation appeals process proposing that an insurance carrier’s failure to notify potential beneficiaries under Moran v. City of Houston, 58 S.W.3d 159, 162-63 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (explaining that, when lawmakers include a term or phrase in one section of a statute, but exclude it in another, courts must presume that the lawmakers had a reason for excluding the term and “that term should not be implied where it has been excluded”).
We simply cannot hold as the majority does and remain consistent with long-standing Texas law. The majority’s conclusion that legally sufficient evidence of good cause exists when a carrier fails to tell potential workers’ compensation beneficiaries of law they are deemed to know places our court in irreconcilable conflict with the Supreme Court of Texas and every other Texas court addressing the issue (including ours), leaving the instant decision as an outlier. Whether that means a carrier’s failure to comply with rule 132.17(d) has little consequence insofar as good cause is concerned is a matter for the Supreme Court of Texas or the legislature.10
*322 I next address Marta’s second asserted factual basis for good cause. Marta contends good cause exists because she was not notified or otherwise aware that her husband’s death was work-related.11 She states in her affidavit that Encarnacion did not appear to have died from his work injury because he died one month after the injury. As the majority correctly observes, a beneficiary’s reasonable belief that an employee’s death was not compensable or work-related can constitute evidence of good cause for filing a claim after the deadline. See, e.g., Davis, 516 S.W.2d at 456 (holding good cause existed even though the death certificate indicating a non-work-related cause of death was signed by justice of the peace).
Here, however, unlike the claimants in King, 444 S.W.2d at 605.
Moreover, I conclude that the information Marta possessed was sufficient to prompt a reasonable person in her position to at least make inquiries within one year as to whether her husband’s death was related to his work injury, which may have resulted in obtaining an opinion or assessment of compensability upon which she could have reasonably relied in delaying filing a claim, or otherwise prompted her to file a timely claim. Encarnacion died merely one month after his still-unhealed burn injury, during which time the carrier paid workers’ compensation benefits. Marta immediately hired an attorney to evaluate whether medical negligence was a contributing factor. Marta filed a copy of Encarnacion’s death certificate, which indicated that a burn injury to Encarnacion’s leg suffered at work was a condition leading to the immediate cause of death. Our record does not show when or how Marta first obtained a copy of the death certificate. Assuming she did not have a copy before May 13, 2011, a reasonable person in Marta’s position would not wait over one year before obtaining a copy of her spouse’s death certificate, particularly after hiring a lawyer to assess medical malpractice liability. A death certificate showing the cause of death is highly relevant to the lawyer’s purpose. Alternatively, if Marta in fact obtained a copy of the death certificate within the one-year period, then she is charged with knowledge of its contents and the failure to assert her rights by May 13, 2011 likewise is not reasonable diligence.
Assuming some evidence of good cause exists because Marta reasonably believed her husband’s death was unrelated to his job injury, Marta’s lack of knowledge of compensability must also be the reason for the delay. See Hurd, 105 S.W.2d at 429. The claimants in each of those cases filed claims reasonably promptly upon learning that the injury or death was compensable after having delayed filing because they were reasonably led to believe otherwise.
Some courts, including ours, have recognized that reliance on express statements of employers or carriers may constitute good cause for a delayed filing under certain circumstances. See Petroleum Casualty.
If the circumstances in Petroleum Casualty did not support a good cause finding as a matter of law, neither do the present circumstances. Marta waited over thirteen months before filing a claim and there is no evidence that Zurich, Encarnacion’s employer, or a doctor, made any representations to Marta regarding the nature or cause of death, or the claim process, that would have reasonably led to such a delay, as Marta acknowledges in her affidavit. Assuming the truth of Marta’s evidence, the record includes no evidence of care, prudence, or diligence, and thus contains no evidence of good cause.
Moreover, considering all of the uncontroverted evidence,12 Marta resisted the carrier’s efforts to contact her and inform her of potential rights. The record documents efforts by Zurich in 2010 to confirm that Marta was Encarnacion’s spouse, including sending an investigator to the Pflugerville address to confirm whether Marta lived there, seeking information and assistance from Encarnacion’s employer to identify and contact Marta, and attempted communication with Marta’s daughter and Marta’s attorney. Marta’s daughter, Nancy, informed Zurich that Marta had retained legal representation. Zurich contacted Marta’s attorney and left a message with his office, but the record contains no evidence that he returned the call or otherwise contacted Zurich or the Division. Marta presented no affidavit from her counsel disputing Zurich’s evidence in this regard.
Marta does not dispute that Zurich attempted to contact her during 2010, but she testified that she did not receive any letters addressed to her from Zurich or the Division in 2010, and she did not speak to anyone from Zurich or the Division during 2010. Despite Nancy’s knowledge in late 2010 that someone was attempting to contact Marta through her counsel, the record shows no evidence that Marta, *325 Nancy, or Marta’s counsel followed up on those efforts.
Limon further testified that she left another voicemail with Nancy in February 2011 but received no response. Neither Marta’s nor Nancy’s affidavits controvert Zurich’s attempts to communicate during 2011.
According to Marta’s summary judgment evidence, she told the Division at the BRC that she refused to communicate with Zurich on advice of counsel, who was not familiar with workers’ compensation law. However, a party’s reliance on attorney advice does not constitute good cause as a matter of law. See Tex. Emp’r’s Ins. Ass’n v. Dickson, 489 S.W.2d 655, 657 (Tex. Civ. App.—El Paso 1972, writ ref’d n.r.e.).
The majority also points out that Zurich did not notify the Division or Marta that it withdrew its initial dispute to compensability filed on June 2, 2010. This is irrelevant. Marta did not know that Zurich ever disputed compensation because she stated in her affidavit that she did not receive any communication from Zurich in 2010, which necessarily includes Zurich’s June 2, 2010 notice. Thus, Zurich’s dispute (or its withdrawal) could not have been a consideration that influenced Marta’s decision to delay filing a claim or to file a claim when she did. See King, 444 S.W.2d at 605.
The court’s decision today not only lowers the minimum showing required for good cause to a point beneath that set by any of the multitude of cases discussing the issue, the majority has divested the principle of diligence of its essential meaning. According to the majority, a workers’ compensation claimant can create a fact question on good cause without exercising any care or prudence at all. The result leaves this court at odds with an entire body of law, including our own precedent in Herzik, 359 S.W.2d at 916-17.
On this record, I conclude, as this court concluded in Baker v. Travelers Ins. Co., 483 S.W.2d 10, 13 (Tex. Civ. App.—Houston (14th Dist.) 1972, no writ) (five month delay in filing death benefits claim after grounds for good cause expired was too long as matter of law).
Under the authority discussed above, Zurich demonstrated that Marta lacked good cause for filing her claim beyond the one-year anniversary of the employee’s death. Cf., e.g., Beasley, 391 S.W.2d at 35-37. The evidence viewed most favorably to Marta negates good cause as a matter of law, and Marta’s evidence fails to raise a genuine issue of material fact. Accordingly, I agree with the majority that the summary judgment in Marta’s favor on good cause should be reversed; however, I respectfully dissent from the court’s opinion and judgment remanding the case for trial. I would render a take nothing judgment in Zurich’s favor.
See Tex. Lab. Code § 410.204(c).
Marta sued Bordelon in his official capacity only. During the pendency of this suit, Ryan Brannan succeeded Bordelon as Commissioner of the Division. Thus, we refer to either individual throughout this opinion by the official title of “Commissioner.”
Marta also asserted various Insurance Code and tort claims against Zurich, including claims for alleged misrepresentations, violations of the common law duty of good faith and fair dealing, violations of Texas Insurance Code section 541.061, unconscionability, and fraud. The trial court granted summary judgment in Zurich’s favor on these claims, and Marta has not appealed that ruling.
Because this case was transferred to us by order of the Texas Supreme Court, we strive to apply the precedent of the transferor court, which is the Third Court of Appeals. See Tex. R. App. P. 41.3.
Rule 132.17(d) provides: “A carrier that identifies or becomes aware of a potential beneficiary shall notify the potential beneficiary of potential entitlement to benefits, using a plain language notice containing language and content prescribed by the Commission. This notice shall be sent within seven days of the date the carrier identified or was otherwise made aware of the identity and means of contacting the potential beneficiary.”
The final judgment specifically says: “Further, the Court GRANTS Plaintiff’s motion for summary judgment that Defendant Zurich only in writing disputed only the defense of course and scope compensability of Encarnacion’s death and that Defendant Zurich failed to properly and timely dispute in writing the defense of Marta Diaz not filing a claim within one year of death and the Defendant Zurich did not establish any newly discovered evidence which could not have been discovered earlier. The Court finds that Defendant Zurich American was limited to the defense of compensability of Plaintiff’s claim to the death not being the result of the compensable injury which was since been finally resolved as a compensable death by the Texas Department of Insurance—Division of Workers’ Compensation. Further, the Court determines good cause exists for Marta Diaz’s late filing of a claim due to Defendant Zurich’s failure to notify the Plaintiff and the DWC of the compensable death under DWC Rule 132.17.”
Marta also cites to section 409.010 and rules 124.2, 132.10, and 132.17, but these authorities do not support Marta’s position either because they are also silent about when the limitations defense must be asserted.
The Division has approved plain language notices in both English and Spanish, and they are both available for download at http://www.tdi.texas.gov/forms/form20plain.html.
The notice provides the following (with emphasis in the original): “Send the DWC042 form no later than one year after the employee’s death to the Texas Department of Insurance, Division of Workers’ Compensation (DWC). Instructions for how to send the form to DWC are on the form.”
The trial court signed a judgment in Zurich’s favor on the tolling issue even though Zurich did not move for summary judgment on that issue; it opposed Marta’s summary judgment motion. However, Marta does not complain that the final judgment grants relief not requested by Zurich. Thus, affirmance is appropriate given this court’s holding that Marta’s time period to file her claim was not tolled. See G & H Towing Co. v. Magee, 347 S.W.3d 293, 298 (Tex. 2011) (per curiam) (when trial court grants more relief than requested, court of appeals “should treat such a summary judgment as any other final judgment, considering all matters raised and reversing only those portions of the judgment based on harmful error”) (citations omitted).
Rule 122.100 mirrors section 409.007 and provides, in pertinent part:
(a) In order for a legal beneficiary, other than the subsequent injury fund, to receive the benefits available as a consequence of the death of an employee which results from a compensable injury, a person shall file a written claim for compensation with the Division within one year after the date of the employee’s death....
(e) Failure to file a claim for death benefits within one year after the date of the employee’s death shall bar the claim of a legal beneficiary, other than the subsequent injury fund, unless ... good cause exists for the failure to file.
28 Tex. Admin. Code § 122.100.
Rule 132.17(b) provides, in pertinent part:
If the carrier believes that it is not liable for the death or that the death was not compensable, the carrier shall file the notice of denial of a claim (notice of denial) in the form and manner required by § 124.2 of this title (relating to Carrier Reporting and Notification Requirements). If the notice of denial is not filed by the 60th day as required [after notification of death], the carrier may not raise an issue of compensability or liability and is liable for any benefits that accrued and shall initiate benefits in accordance with this section.
28 Tex. Admin. Code § 132.17(b) (emphasis added).
“ ‘Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute.’ ” Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex. 1993) ).
In Appeal No. 090075, the employer first asserted Tex. Workers’ Comp. Comm’n, Appeal No. 090075, 2009 WL 909268, at *4. But the decision does not indicate when the claimant filed the death benefits claim or the nature of the evidence supporting the ruling that the employer should have asserted the defense sooner than the BRC.
Limon’s claim file documents efforts to contact Marta on November 15, 2010, February 4, 2011, and May 11, 2011, but not on April 11, 2011.
The notice must be sent within seven days of the date the carrier identified or was otherwise made aware of the identity and means of contacting the potential beneficiary. Id.
See Safety Cas. Co. v. Walls, 117 S.W.2d 879, 883-84 (Tex. Civ. App.—Eastland 1938, writ dism’d) (discussing potential for good cause if claimant is mentally or physically incapacitated during period of delay).
The notice approved by the Division informs potential beneficiaries that a death benefits claim must be filed with the Division no later than one year after the employee’s death.
Requiring carriers to notify potential beneficiaries of the one-year deadline is unquestionably laudable and no doubt helps minimize the number of occasions, such as the present one, when beneficiaries miss the deadline. But the rule’s requirement does not change long-standing Texas law charging workers’ compensation beneficiaries with knowledge of the deadline regardless whether the notice is sent or received.
The trial court did not adjudicate this ground, but it is appropriately considered in this case’s current posture. See FinServ Cas. Corp. v. Transamerica Life Ins. Co., 523 S.W.3d 129, 150 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
See Houston Lighting & Power Co., 788 S.W.2d at 936
See Tex. Gen. Indem. v. Tex. Workers’ Comp. Comm’n, 36 S.W.3d 635, 640 (Tex. App.—Austin 2000, no pet.).