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American General Fire & Cas. Co. v. Weinberg
June 30, 1982
639 S.W.2d 688
Published Opinion

American General Fire & Cas. Co. v. Weinberg

Supreme Court of Texas.



Ben J. WEINBERG, Respondent.

No. C–1008.


June 30, 1982.

Attorneys & Firms

*688 Strasburger & Price, Royal H. Brin, Jr., Dallas, for petitioner.

Brian A. Eberstein, Dallas, for respondent.

GREENHILL, Chief Justice.

In this worker’s compensation case, Ben J. Weinberg sought damages from American General Fire and Casualty Company (American General). Weinberg originally presented his claim to the Industrial Accident Board (Board). It held that he had not filed the claim on time.

Weinberg attempted to challenge that ruling. He brought suit (under Article 8307 Section 5)1 in the district court, which granted summary judgment for American General. It held that Weinberg had not filed this suit on time. The Court of Appeals reversed that judgment and remanded the cause to the trial court. 626 S.W.2d at 555.

The Court of Appeals based its judgment on a point neither party had assigned, i.e., on unassigned error. The court itself found what it obviously regarded as fundamental error. In so doing, it erred. We, therefore, reverse the Court of Appeals judgment and affirm the judgment of the trial court.

In his petition before the district court, Weinberg alleged that around December 26, 1975, he hurt his back “on the job.” Some five weeks later, Weinberg told his employer about the alleged injury. The employer notified the Board. On July 12, 1978, the Board denied Weinberg’s compensation claim.

On July 17, 1978, by certified mail, return receipt requested, Weinberg notified the Board’s Austin office that he would appeal the Board’s decision (the first notice). The return receipt was received. In his reply to American General’s application for writ of error, Weinberg asserts that after July 17, 1978, he became worried that the Board had not received his notice of appeal.

Apparently, Weinberg had expected to receive some word, apart from his return receipt, that the Board had received the notice. When he did not receive that word, Weinberg asserts, he sent a copy of his first notice (received August 1, 1978) to the Board’s Dallas office (the second notice). On August 2, 1978, the Board notified both parties that it had received Weinberg’s first notice.

Section 5 of Article 8307 gives the district court jurisdiction of appeals from Board decisions. The requirements of the statute are in part:

Any interested party who is not willing and does not consent to abide by the final ruling and decision of said Board shall, within twenty (20) days after the rendition *689 of said final ruling and decision by said Board, file with said Board notice that he will not abide by said final ruling and decision. And he shall, within twenty (20) days after giving such notice bring suit ... to set aside said final ruling and decision ....

Weinberg filed suit on August 17, 1978, more than twenty days (20) after filing his first notice to the Board. American General answered with an unsworn general denial and moved for summary judgment. It alleged that Weinberg had failed to file his suit on time. The district court granted American General summary judgment despite Weinberg’s argument that he had filed his suit within twenty (20) days after he sent his second notice.

The Court of Appeals reversed on unassigned error; i.e., by failing to answer Weinberg’s suit with a verified denial as required by Rule 93(n) of the Texas Rules of Civil Procedure, American General had waived its right to complain that Weinberg did not file his suit on time. The Court of Appeals, obviously, considered this not only to be error, but fundamental error requiring a reversal.

Fundamental error has become a rarity. We have given this observation judicial force in a long line of decisions. See, e.g., Coffee v. Rice University, 403 S.W.2d 340 (Tex.1966) (justiciable interest).

The Court of Appeals erred when it reversed the trial court’s judgment on a point neither party assigned. Accordingly, we reverse the Court of Appeals judgment.

We affirm the trial court’s judgment for American General because Weinberg did not file his district court suit on time. We recognize that he filed the suit within twenty (20) days of his second notice. The “second notice” was but the second filing of the first notice. This second filing was to the Board’s Dallas office.

According to a Board Rule2, a party must file notices of appeal in the Board’s Austin office. Because Weinberg has not challenged that rule, we express no opinion on its validity. See, Bullock v. Hewlett-Packard Co., 628 S.W.2d 754 (Tex.1982).



Because the Board’s rule makes Weinberg’s second notice ineffective, only his first notice was effective. As Weinberg did not file his district court suit within twenty (20) days of the first notice, the district court properly held that Weinberg had not filed the suit on time.

This holding is not contrary to that in American Employers Ins. Co. v. Scott, 33 S.W.2d 845 (Tex.Civ.App.—Eastland 1930, writ ref’d). In Scott, the Board had denied the plaintiff relief on September 28, 1928. Plaintiff filed a notice of appeal on October 3, 1928. He filed “a similar notice” on October 16, 1928. He filed suit on October 31, 1928.

If the court in Scott had held that the date of plaintiff’s first notice was dispositive, the court would have had to hold that plaintiff had not filed his suit on time. October 31 was more than twenty days after October 3. The court held that, because *690 the date of plaintiff’s second notice was dispositive, he had filed his suit on time.

In Scott, the plaintiff filed both notices of appeal in the Board’s Austin office. At the time, the Board had no Dallas office. For that reason, the Board had no need to promulgate a rule similar to the one involved here. We hold that these facts distinguish the decision in Scott from our decision here.

The Court of Appeals judgment is reversed, and the trial court’s judgment for American General is affirmed.



Statutory references are to Vernon’s Texas Civil Statutes Annotated.



These rules are promulgated under the authority of Vernon’s Texas Civil Statutes, Article 8307, Section 4.


.030. Filing of Instruments. The following shall be filed with the board in Austin:

(a) Notice of Injury and Claim for Compensation,

(b) Employer’s First Report of Injury,

(c) Notice that Employer Has Become Subscriber,

(d) Formal Statements of Position,

(e) Notice of Intention of Appeal,

(f) Notice of Cancellation of Compensation Insurance.

All other correspondence and forms relating to claims arising under the Workers’ Compensation Law must be filed with the proper regional office or the proper resident reviewer of the board in Austin.

77 Tex.Reg. 4315 (Nov. 8, 1977).

End of Document