Your FREE and easy resource for all things Texas workers' compensation

Court of Appeals of Texas, Waco.

FLORIDA METAL PRODUCTS, INC. AND FLAMCO OF TEXAS, INC., Appellants

v.

DANNY KREDER, Appellee

No. 10-18-00383-CV

|

Opinion delivered and filed October 14, 2020

From the 170th District Court

McLennan County, Texas

Trial Court No. 2018-2088-4

Before Chief Justice Gray

Justice Davis, and

Justice Neill

MEMORANDUM OPINION

JOHN E. NEILL Justice

*1 Appellee, Danny Kreder, sued appellants, Florida Metal Products, Inc. and FLAMCO of Texas, Inc., for workers’-compensation retaliation. Appellants filed a motion to dismiss the lawsuit under the Texas Citizens Participation Act (“TCPA”). See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001-.010. After a hearing, the trial court denied the motion to dismiss. Because we conclude that the trial court erred in denying the motion to dismiss, we reverse the trial court’s order and remand this appeal for further proceedings consistent with this opinion.

I. BACKGROUND

In his original petition, Kreder recounted that he worked for appellants for four years in maintenance in Waco, Texas. On November 7, 2017, Kreder injured his back at work and subsequently filed a workers’-compensation claim for this injury. Kreder alleged that he received medical care and continued to work for appellants under light-duty restrictions imposed by his treating physician. On November 28, 2017, Kreder’s physician released him to return to full or regular-duty work without restrictions. When he returned to full or regular-duty work without restrictions, appellants terminated Kreder’s employment.

Kreder filed suit alleging claims for violations of the Texas Labor Code. See TEX. LABOR CODE ANN. § 451.001 (noting that a person may not discharge or in any other manner discriminate against an employee who has filed a workers’ compensation claim in good faith). Specifically, Kreder claimed that his employment was terminated because he filed a worker’s-compensation claim and that appellants attempted “to justify this wrongful termination” by falsely telling him “that he was being terminated because of a mistake he made in tightening a wire weeks or months before and for which he had not been written up or received any reprimand/counseling.” Kreder requested damages for lost past and future wages and benefits of employment, as well as exemplary damages, in an amount greater than $200,000 but less than $1,000,000.

Appellants filed an original answer generally denying all the allegations made in Kreder’s original petition and asserting that Kreder was terminated for a legitimate, non-discriminatory reason: poor job performance. Later, appellants filed a motion to dismiss under the TCPA. In their motion to dismiss, appellants contended that Kreder’s claims are predicated on an allegation that appellants communicated a false reason for his termination and, thus, implicates appellants’ exercise of the right of free speech. Additionally, appellants contended that Kreder’s claims “necessarily implicate[ ] a host of communications by and among FLAMCO representatives in furtherance of their joint interests. These communications constitute ‘association’ for purposes of the TCPA.” Appellants further alleged that Kreder cannot meet his burden of establishing a prima-facie case on every element of his claims with clear and specific evidence and that Kreder cannot overcome appellants’ defense that Kreder was terminated for a legitimate, non-discriminatory reason. Accordingly, appellants requested that Kreder’s claims be dismissed and that attorney’s fees, costs, and sanctions be granted in their favor. Kreder filed a lengthy response to appellants’ TCPA motion to dismiss, as well as an amended original petition.

*2 The trial court conducted a hearing on appellants’ TCPA motion to dismiss. At the conclusion of the hearing, the trial court took appellants’ TCPA motion to dismiss under advisement. Thereafter, the trial court signed an order denying the motion to dismiss. This accelerated, interlocutory appeal followed.

II. THE TCPA1

The TCPA protects citizens who associate, petition, and speak on matters of public concern from legal actions that seek to intimidate or silence them. See State ex rel. Best v. Harper, 562 S.W.3d 1, 13 (Tex. 2018); Youngkin v. Hines, 546 S.W.3d 675, 679 (Tex. 2018); In re Lipsky, 460 S.W.3d 579, 584 (Tex. 2015). That protection comes in the form of a special motion to dismiss, subject to expedited review, for any suit that appears to stifle a defendant’s exercise of those rights. Youngkin, 546 S.W.3d at 679; Lipsky, 460 S.W.3d at 584. The TCPA casts a wide net and is to be construed liberally to fully effectuate its purpose and intent. Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 894 (Tex. 2018); ExxonMobil Pipeline Co. v. Coleman, 512 S.W.3d 895, 898 (Tex. 2017) [ (per curiam) ]. In determining whether a plaintiff’s legal action should be dismissed, the TCPA requires the trial court to consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based. TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a) (West 2014); Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 892 (Tex. 2018).

Entitlement to a TCPA motion to dismiss requires the completion of a two-, and possibly three-, step process. See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 691 (Tex. 2018). Under the first step, the burden is on the movant, typically a defendant, to show “by a preponderance of the evidence” that the legal action by the non-movant, typically a plaintiff, “is based on, relates to, or is in response to” the defendant’s exercise of: (1) the right of free speech; (2) the right to petition; or (3) the right of association. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(b) (West 2014); see Lipsky, 460 S.W.3d 586-87. The statute defines what it means to exercise those rights, and courts must adhere to these supplied legislative definitions. Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018). A preponderance of the evidence means that the evidence presented is more likely than not true. See Lipsky, 460 S.W.3d at 589; In the Interest of C.H., 89 S.W.3d 17, 25 (Tex. 2002).

If a defendant is able to demonstrate that a plaintiff’s legal action implicates one of these rights, the second step shifts the burden to the plaintiff to establish by “clear and specific evidence a prima facie case for each essential element of the claim in question.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c) (West 2014); see In re Lipsky, 460 S.W.3d at 587. Although the statute does not define “clear and specific,” “clear” means unambiguous, sure, or free from doubt, and “specific” means explicit or relating to a particular named thing. S&S Emergency Training Sols., Inc. v. Elliott, 564 S.W.3d 843, 2018 Tex. LEXIS 1312, at *8 (Tex. 2018) (internal quotes omitted); In re Lipsky, 460 S.W.3d at 590. “Prima facie case” as used in the statute means a “minimum quantum of evidence necessary to support a rational inference that the allegation of fact is true.” Id. Direct evidence of damages is not required, but the evidence must be sufficient to allow a rational inference that some damages naturally flowed from the defendant’s conduct. S&S Emergency Training Sols., 564 S.W.3d 843 at *8.

*3 If the plaintiff satisfies that requirement, the burden shifts back, in step three, to the defendant to prove each essential element of any valid defenses by a preponderance of the evidence. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d) (West 2014); Youngkin v. Hines, 546 S.W.3d 675, 679-80 (Tex. 2018).

On appeal, our review of the trial court’s ruling on a TCPA motion to dismiss is de novo. See Holcomb v. Waller Cty., 546 S.W.3d 833, 839 (Tex. App.—Houston [1st Dist.] 2018, pet. denied); Tervita, LLC v. Sutterfield, 482 S.W.3d 280, 282 (Tex. App.—Dallas 2015, pet. denied); Johnson-Todd v. Morgan, 480 S.W.3d 605, 609 (Tex. App.—Beaumont 2015, pet. denied). See also Better Bus. Bureau of Metro. Hous., Inc. v. John Moore Servs., Inc., 441 S.W.3d 345, 353 (Tex. App.—Houston [1st Dist.] 2013, pet. denied).

Arey v. Shipman Agency, Inc., No. 10-18-00100-CV, 2019 Tex. App. LEXIS 3513, at **1-3 (Tex. App.—Waco May 1, 2019, pet. denied) (mem. op.).

A. Step One

In the first step, we must determine whether Kreder’s lawsuit was based on, related to, or in response to appellants’ exercise of their right of free speech, right to petition, or right of association. In conducting our de novo review of this step, we consider the pleadings, and supporting and opposing affidavits stating the facts on which the liability or defense is based, as the trial court was required to consider. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a); Adams, 547 S.W.3d at 892; Johnson-Todd, 480 S.W.3d at 609. When it is clear from the plaintiff’s pleadings that the action is covered by the TCPA, the defendant need show no more. Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017).

With regard to the phrase “based on, relates, to, or is in response to,” we consider whether there is a nexus between the “legal action” and the protected conduct under the TCPA. See Grant v. Pivot Tech. Solutions, Inc., 556 S.W.3d 865, 879 (Tex. App.—Austin 2018, pet. denied). The level of nexus required, which “includes no qualifications as to its limits,” is very broad. Id. at 880 (quoting Cavin v. Abbott, 545 S.W.3d 47, 63 (Tex. App.—Austin 2017, no pet.); see Coleman, 512 S.W.3d at 901. “[A] plaintiff’s claims are ‘related’ to a protected communication when there is ‘some sort of connection, reference, or relationship between them,’ and are ‘in response to’ a protected communication when they ‘react[ ] to or [are] asserted subsequently’ to the communication.” Grant, 556 S.W.3d at 880 (quoting Cavin, 545 S.W.3d at 69).

A broad range of communications, in various mediums, are covered by the TCPA. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(1) (defining “communication” to include the “making or submitting of a statement or document in any form or medium, including oral, visual, written, audiovisual, or electronic”); see also Adams, 547 S.W.3d at 894 (recognizing that, under the TCPA, “[a]lmost every imaginable form of communication, in any medium, is covered”). Furthermore, the Texas Supreme Court has also recognized that private communications are covered by the TCPA, provided that they were made in connection with a matter of “public concern.” See Coleman, 512 S.W.3d at 901; see also Lippincott, 462 S.W.3d at 509 (noting that the “plain language of the statute imposes no requirement that the form of the communication be public”).

*4 In the instant case, it is undisputed that Kreder filed a legal action for workers’-compensation retaliation against appellants. From the face of Kreder’s live petition, we conclude that Kreder’s claims for violations of the Texas Labor Code are “based on, relate[d] to, or [are] in response to” appellant’s “exercise of the right of free speech.” This is because Kreder’s claims are factually predicated on his allegation that appellants “[i]n an attempt to justify this wrongful termination[,] Defendants falsely told Kreder that he was being terminated because of a mistake he made in tightening a wire weeks or months before and for which he had not been written up or received any reprimand/counseling.” Additionally, Kreder asserts that his “superior, after receiving information regarding [Kreder’s] injury and work restrictions[,] derogatorily referred to [Kreder] as ‘a vegetable.’ ” This language, which Kreder uses to illustrate that he was retaliated against, demonstrates that statements were made with regard to Kreder’s job performance and his future employment status with the company and, thus, satisfies the broad meaning of “communication.” See Youngkin, 546 S.W.3d at 680.

However, despite the foregoing, we must determine whether the communication involved a matter of public concern because the communications were private. See Coleman, 512 S.W.3d at 901; see also Lippincott, 462 S.W.3d at 509. As stated in Coleman,

[t]he TCPA does not require that the statements specifically ‘mention’ health, safety, environmental, or economic concerns, nor does it require more than a ‘tangential relationship’ to the same; rather TCPA applicability requires only that the defendant’s statements are ‘in connection with’ issue[s] related to’ health, safety, environmental, economic, and other identified matters of public concerns chosen by the Legislature.

512 S.W.3d at 900 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(3), (7)).

Pete Alderman, the general manager of FLAMCO, stated in his affidavit attached to appellants’ TCPA motion to dismiss that,

[f]or both safety and economic reasons, it is important that members of the maintenance department, including Kreder, perform their job responsibilities correctly. A failure to do so prevents FLAMCO from producing high-quality products without unnecessary waste of materials or delays in production time, and negatively impacts the safe working environment that FLAMCO strives to maintain.

Alderman further outlined performance problems that Kreder had since early 2015 that resulted in complaints from co-workers and additional costs to the company to replace or repair damaged equipment caused by Kreder’s alleged failure to do his job properly. As a result of this, Alderman recounted that he “began having serious discussions about Kreder’s performance problems” with management beginning in July 2016, and continuing through November 2017. In these discussions, management “considered these important issues and expressed our concerns about them, including workplace safety concerns and the negative financial implications caused by Kreder’s poor performance.” Appellants also provided the affidavits of Kevin Greenawalt, Head of Maintenance at FLAMCO, and Jerry Marecle, Plant Manager of FLAMCO, who echoed the sentiments of Alderman that Kreder’s alleged poor work performance negatively impacted workplace safety and the finances of the company.

Based on the foregoing, we conclude that evidence before the trial court at the time of the ruling on the TCPA motion to dismiss established that the alleged communications that serve as the basis for Kreder’s claims were based on related to, or were in response to appellants’ exercise of the right of free speech because, as shown by the affidavits of Alderman, Greenawalt, and Marecle, the private communications were in connection with a matter of public concern—workplace safety and the economic health of the company.2 See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001(3) (noting that the “exercise of the right of free speech” means a communication made in connection with a matter of public concern), 27.001(7)(E) (stating that “a matter of public concern” includes an issue related to a good, product, or service in the marketplace).3 We therefore hold that the first step is met. See Hersh, 526 S.W.3d at 467 (noting that when it is clear from the plaintiff’s pleadings that the action is covered by the TCPA, the defendant need show no more). We now proceed to the second step in our analysis.

B. Step Two

*5 In the second step, the burden shifts to Kreder to establish, by clear and specific evidence, a prima facie case for each element of the claims alleged in the petition. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); see also In re Lipsky, 460 S.W.3d at 587. Clear and specific evidence includes relevant circumstantial evidence and rational inferences that may be drawn therefrom. In re Lipsky, 460 SW.3d at 584, 591.

Here, Kreder sued appellants for workers’-compensation retaliation. Under the Texas Workers’ Compensation Act, an employer “may not discharge or in any other manner discriminate against an employee because the employee has ... filed a workers’ compensation claim in good faith.” TEX. LABOR CODE ANN. § 451.001(1); Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015). “An employer who violates this statute is subject to a retaliation claim, which constitutes ‘an exception to the traditional doctrine of employment at will found in Texas law.’ ” Melendez, 477 S.W.3d at 312 (quoting Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 453 (Tex. 1996) (internal quotations omitted)).

The elements of a claim for workers’-compensation retaliation under section 451.1 of the Labor Code are: (1) an employee, (2) is discharged or discriminated against in any manner, (3) because the employee has filed a workers’ compensation claim in good faith, and (4) that “but for” the employee’s filing of a workers’ compensation claim, the discharge would not have occurred when it did. Willis v. Nucor Corp., 282 S.W.3d 536, 543 (Tex. App.—Waco 2008, no pet.) (citations omitted). The employee has the burden of proof for a claim under section 451.001. See TEX. LABOR CODE ANN. § 451.002(b).

The last element is known as the “causal connection” or “causal link,” and the employee has the burden to establish a causal link between the discharge and the filing of the workers’ compensation claim. This link may be established by direct or circumstantial evidence. Examples of circumstantial evidence sufficient to establish a causal link include: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. These five examples are not necessary elements of the cause of action. The workers’ compensation claim also need not be the sole cause of the termination.

Once a link between the filing and the discharge is established, it is the employer’s burden to rebut the alleged retaliation by showing there was a legitimate reason for the discharge. Thereafter, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive. The retaliatory motive may also be established by either direct or circumstantial evidence using the Continental Coffee examples. The employee’s subjective beliefs are, however, no more than conclusions.

Alayon v. Delta Air Lines, Inc., 59 S.W.3d 283, 287-88 (Tex. App.—Waco 2001, pet. denied) (per curiam) (internal citations omitted).

On appeal, appellants challenge the first and fourth elements of Kreder’s claims for workers’-compensation retaliation. Specifically, appellants contend that Kreder has not presented sufficient evidence to show that Kreder was an employee of Florida Metal Products; thus, Florida Metal Products was not a properly-joined defendant. Appellants also argue that Kreder has not established, with clear and specific evidence, the “causal link” or retaliatory motive.

1. Kreder’s Employment Status with Florida Metal Products

*6 Kreder pled a “workers’ compensation retaliation” claim against both Florida Metal Products and FLAMCO. In its TCPA motion to dismiss, appellants challenged Kreder’s contention that he was an employee of both Florida Metal Products and FLAMCO. A review of the record demonstrates that Kreder cannot establish that he was an employee of Florida Metal Products.

“For the purpose of workers’ compensation law, the employer-employee relationship may be created only by a contract.” Waldrep v. Tex. Emp’rs Ins. Ass’n, 21 S.W.3d 692, 698 (Tex. App.—Austin 2000, pet. denied). Under section 401.011(18) of the Texas Labor Code, an “employer” is “a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.” TEX. LABOR CODE ANN. § 401.011(18). Additionally, an “employee” is a “person in the service of another under a contract of hire, whether express or implied, or oral or written,” excluding any “person whose employment is not in the usual course and scope of the employer’s business.” Id. § 401.012(a)(c)(2).

In determining whether an entity is an employer under this portion of the Texas Labor Code, the Texas Supreme Court has stated that courts should “consider traditional indicia,” see Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 477 (Tex. 2005), which include “(1) the right to hire and discharge the worker, (2) the carrying of the worker on social security and income tax withholding records, (3) the providing of equipment, (4) the responsibility to pay wages, and (5) the right to control the specifics of a worker’s performance.” Waldrep, 21 S.W.3d at 700 n.13. Regarding the exercise of control, the relevant factors include whether: (1) the worker was on the client company’s premises at the time of the injury; (2) the work was in furtherance of the client company’s day-to-day business; and (3) the details of the work were specifically directed by the client company. Garza, 161 S.W.3d at 477.

None of the indicia listed above are established between Kreder and Florida Metal Products. Specifically, Marecle opined in his affidavit that he was the decision-maker regarding Kreder’s termination. In fact, Marecle noted that: “I personally hired [Kreder] and fired him.” Additionally, Florida Metal Products’s Chief Financial Officer, John Klarfeld, noted that he expressly left the termination decision to FLAMCO’s discretion.

The record also reflects that Kreder’s W2s exclusively identified FLAMCO as his employer for tax purposes. Moreover, there is no evidence that Florida Metal Products provided Kreder any equipment, and the record demonstrates that FLAMCO had sole discretion over setting and paying Kreder’s wages. Furthermore, the record shows that Kreder worked only in FLAMCO’s Waco plant, not at Florida Metal Products’s Jacksonville, Florida, office. Kreder’s work was in furtherance of FLAMCO’s business objectives and was directed and supervised by FLAMCO employees. In addition to the foregoing, Kreder’s medical documents, as they pertain to his workers’-compensation claim, identify FLAMCO, not Florida Metal Products, as Kreder’s employer, and all of FLAMCO’s witnesses confirmed that FLAMCO was Kreder’s only employer.

Based on this record, we cannot conclude that Kreders met his burden to establish by clear and specific evidence that Florida Metal Products was his employer under the Texas Labor Code. See TEX. LABOR CODE ANN. §§ 401.011(18), 401.012(a)(c)(2); see also Garza, 161 S.W.3d at 477; Waldrep, 21 S.W.3d at 698, 700 n.13. As such, the TCPA mandates that Kreder’s claim against Florida Metal Products be dismissed. See Holcomb, 546 S.W.3d at 839; Tervita, LLC, 482 S.W.3d at 282; Johnson-Todd, 480 S.W.3d at 609; see also Arey, 2019 Tex. App. LEXIS 3513, at *3.

2. Knowledge of Compensation Claim by Those Making the Decision on Termination

*7 As noted above, Marecle indicated that he was the decision-maker regarding Kreder’s termination. In his deposition testimony, Marecle recounted that he noticed that Kreder’s job performance began to decline in mid- to late- 2016; that Marecle received several complaints from employees about Kreder’s performance; that Kreder did not receive a wage increase at any point after August 2016; and that Marecle began speaking with his manager, Alderman, about terminating Kreder’s employment in mid-2016—well before the workplace injury that gave rise to the workers’-compensation claim.

In his affidavit, Marecle further averred that:

After several months, Kreder’s performance did not improve. Alderman made clear to me that he believed Kreder should be terminated[,] but I continued to give Kreder opportunities for improvement. Ultimately[,] I decided by the end of October 2017 that I was going to terminate Kreder’s employment as a result of his poor performance.... After I made this decision but before I had the opportunity to call Kreder in for a meeting about it, he hurt his back.

Marecle also noted that the:

decision to terminate Kreder had absolutely nothing to do with his minor back injury, which was fully healed at the time of his termination. It also had nothing to do with Kreder filing a workers’ compensation claim, which I do not believe I was even aware of at the time. I do not remember exactly when I learned that Kreder filed such a claim, but this played no role in my decision to terminate him.

In any event, Kreder contends that the following evidence shows knowledge of his workers’-compensation claim: (1) Carl Armour, his direct supervisor, knew Kreder was injured and sought medical attention and generally knew FLAMCO provided workers’-compensation coverage to its employees; and (2) Alderman and Administrator Donna Moreno knew Kreder had work restrictions and received a copy of Workers’ Compensation Status Report. Even if these allegations were true, they do not establish the knowledge of Marecle, who opined that he was the sole decision-maker in the termination of Kreder.

Kreder also points to statements made by Klarfeld, Florida Metal Products’s Chief Financial Officer, who oversaw workers’-compensation claims for Florida Metal Products. However, Klarfeld repeatedly testified that he did not have any involvement in the decision to terminate Kreder.

As stated by the First Court of Appeals, “knowledge that [an employee] had been injured on the job is not the same as knowledge that he was pursuing a workers’ compensation claim.” Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 400 (Tex. App.—Houston [1st Dist.] 2017, no pet.). The fact that Marecle knew that Kreder was injured on the job is not enough to establish that Marcele knew, as the sole decision-maker in the termination of Kreder’s employment, that Kreder had filed a workers’-compensation claim. Furthermore, communications between individuals who were not involved in the termination of Kreder’s employment regarding Kreder’s employment is not enough to establish this factor. Because there is not clear and specific evidence that Marecle knew of Kreder’s workers’ compensation claim at the time he terminated Kreder, we cannot say that this factor weighs in favor of establishing the required “causal link.”

3. Expression of a Negative Attitude Toward the Employee’s Injured Condition

To show appellants expressed a negative attitude toward his injured condition, Kreder relies heavily on the following sarcastic comments made by Klarfeld in an email: “This looks like it’s going to be an issue.... Basically looks like to me he is a vegetable.”4 However, as stated above, Klarfeld did not have any involvement in the decision to terminate Kreder, and Klarfeld had no supervisory role over Kreder. That decision and supervisory status belonged to Marecle, and Kreder has not presented any evidence showing that Marecle expressed any negative atittudes towards Kreder’s injury.

*8 Nevertheless, even if we were to assume that Klarfeld’s statements constitute a negative attitude toward Kreder’s injured condition, Texas courts have held that stray remarks made in the workplace by non-decision makers, without more, are not evidence of the employer’s intent. Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 816 (Tex. App.—Houston [1st Dist.] 2012, pet. denied); see M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000) (per curiam) (“Stray remarks, remote in time from [the plaintiff’s] termination, and not made by anyone directly connected with the [employment] decisions, are not enough to raise a fact question about whether [the defendant’s] reason for terminating [the plaintiff] was pretextual.”); see also Jones v. NRG Tex., LLC, No. 10-16-00260-CV, 2017 Tex. App. LEXIS 3717, at *8 (Tex. App.—Waco Apr. 26, 2017, no pet.) (mem. op.) (“Stray remarks by people not involved in the termination decision are generally insufficient to show discrimination.” (internal citations omitted)).

Moreover, we are also not persuaded by Kreder’s reliance on Grey Wolf Drilling Co. v. Perez to show that the Klarfeld email is enough to show a negative attitude toward Kreder so as to prove retaliatory intent. See generally 04-02-00802-CV, 2004 Tex. App. LEXIS 2011 (Tex. App.—San Antonio Mar. 3, 2004, pet. denied) (mem. op.). In Grey Wolf Drilling Co., there was evidence that the plaintiff’s co-workers and supervisors “constantly ‘harassed’ ” him and subjected him to negative treatment after he filed a workers’-compensation claim and returned to work. Id. at **1-2. Apparently, after plaintiff filed his workers’-compensation claim, one of the plaintiff’s co-workers “frequently called him ‘handicapped’ and a ‘vegetable’ and told him that he was ‘injured’ and ‘ain’t worth shit.’ ” Id. at *6. When the plaintiff’s supervisor was made aware of the comments, he laughed and refused to reprimand the co-worker for his actions. Id. at **6-7. The San Antonio Court of Appeals concluded that this was some evidence of a negative attitude expressed toward the plaintiff’s injury. Id. at *7.

In the instant case, Klarfeld’s comment was isolated and not directed or shown to Kreder or shared with Marecle, the individual who was the sole decision maker regarding Kreder’s employment. And as mentioned before, Klarfeld was not involved in the decision to terminate Kreder, nor was he Kreder’s supervisor. Additionally, evidence in the record demonstrated that those in contact with Kreder were positive toward him regarding his injury and that, during his period of light duty, Kreder was paid his full wages and the company did not take any adverse action against him. Accordingly, we cannot say that this factor weighs in favor of establishing the required “causal link.”

4. Failure to Adhere to Established Company Policies

In attempting to establish this factor, Kreder argues that FLAMCO’s own employee handbook demonstrates that the company failed to follow the progressive-discipline policy prior to terminating his employment. Specifically, Kreder emphasizes that he was never disciplined in the four years that he worked in the maintenance department and that his personnel file shows regular pay raises for good performance.

First, we reiterate what was mentioned above—that Kreder did not receive another pay raise after August 2016, which was when Marecle began discussing Kreder’s alleged poor work performance and his possible termination. Second, a review of the FLAMCO employee handbook does not support Kreder’s contention here. Regarding discipline, the following language in the FLAMCO employee handbook allows for progressive discipline or immediate discharge:

The objective of discipline is to provide an effective means for enforcing reasonable company rules and policies. The Company recognizes, however, that each disciplinary and termination situation represents a unique set of circumstances and therefore must be reviewed and decided based on the individual facts and in the context of surrounding circumstances.

*9 Progressive discipline may be administered for employee counseling sessions and/or warnings designed to remedy employee problems. If the problem is not remedied, the employee moves to the next step of progressive discipline and continues in this process until either the problem is remedied or termination results. Progressive discipline is discretionary and the employer retains the right to discharge employees immediately.

...

Disciplinary actions may range from verbal warnings, written warnings, suspensions, and in severe cases, immediate discharge.

(Emphasis added). Furthermore, both Marecle and Klarfeld confirmed that FLAMCO’s disciplinary policy was administered on a discretionary basis.

In addition to the foregoing, the FLAMCO employee handbook also provided a non-exhaustive list of reasons that “[e]mployees may be terminated immediately,” including:

• “Use of ‘Company time’ for excessive personal business that impedes production”;

• “Any act detrimental to the interests of the Company or its employees”;

• “Any misconduct or disruption that detracts from the cooperative, harmonious teamwork environment that our Company strives to promote”;

• “Disregard of safety rules, common safety practices and sanitary conditions”;

• “Consistently poor performance”;

• “Smoking (except in designated areas)”;

• “A slow-down, interference or delay of work or the work of other employees which impedes production”;

Each of these potential reasons for immediate termination applied to Kreder, as asserted by appellants.

Furthermore, as shown above, the FLAMCO employee handbook did not require the company to give Kreder formal reprimands or follow a progressive disciplinary procedure. Rather, the company retained the right to discharge Kreder immediately, especially if one or more of the laundry list of items mentioned above were applicable.

Appellants presented evidence that, on numerous occasions, Kreder failed to properly maintain or repair machines, which caused safety and production issues at the company.5 Additionally, appellants also showed that Kreder frequently disappeared while at work, only to eventually be found smoking or napping. Kreder has not directed us to any evidence that required FLAMCO to follow a progressive-disciplinary procedure and prohibited the company from terminating him without any formal reprimands or warnings. As such, we cannot conclude that this factor weighs in favor finding that the company’s alleged failure to adhere to its own policies demonstrated a retaliatory motive and, thus, established the “causal link.” See Willis, 282 S.W.3d 551-53 (holding that the plaintiff failed to satisfy this factor given affidavits from corporate executives confirming that plaintiff’s termination was conducted consistent with company policy, especially because the policy afforded the employer discretion to consider individual circumstances in deciding whether to termination employment and flexibility in how to implement the policy); see also Clevinger v. Fluor Daniel Servs. Corp., No. 10-11-00288-CV, 2012 Tex. App. LEXIS 3128, at *13 (Tex. App.—Waco Apr. 18, 2012, no pet.) (mem. op.) (“That there were no official written criteria used nor a written ranking of the employees placed on the list is no evidence that Fluor did not follow its company policies.”).

5. Discriminatory Treatment in Comparison to Similarly-Situated Employees

*10 The Texas Supreme Court has stated that “[e]mployees are similarly situated if their circumstances are comparable in all material respects.” Yselta Indep. Sch. Dist. v. Monarrez, 177 S.W.3d 915, 917 (Tex. 2005) (per curiam). Employees may be considered similarly situated “if their circumstances are comparable in all material respects, including similar standards, supervisors[,] and conduct.” Rosenberg v. KIPP, Inc., 458 S.W.3d 171, 177 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (internal quotation omitted). To establish that employees are “comparable in all material respects,” a plaintiff also must show “that there were no differentiating or mitigating circumstances as would distinguish the employer’s treatment of them.” Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 435 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) (internal quotation omitted).

To meet the standards above, Kreder needed to present evidence of another FLAMCO employee who was in the maintenance department, who was supervised by Marecle and Armour, who allegedly failed to repair equipment correctly and went missing during working hours on numerous occasions, yet did not file a workers’-compensation claim and was not fired. Kreder has not directed us to any evidence in the record of such an individual.

Instead, Kreder argued that he received no negative “points” under FLAMCO’s progressive-discipline policy, but was terminated. However, other employees accumulated points, but were not terminated. This argument fails because, as Carl Armour testified, the point system applied only to absences and unexcused tardiness when showing up for work—both issues that did not apply to Kreder. Indeed, performance evaluations included in the record show that Kreder was commended for his attendance and punctuality. Rather, as explained above, appellants indicated that Kreder was terminated for poor performance. Therefore, based on the foregoing, we cannot say that this factor weighs in favor of establishing the required “causal link.”

6. Evidence that the Stated Reason for the Discharge was False

To establish this factor, Kreder argued in the trial court that appellants’ explanations for his termination were “shifting, changing, or inconsistent.” Kreder also relies heavily on the timing of his return to full work duty after his injury and his termination. First, as highlighted above, in their pleadings, appellants have consistently asserted that Kreder was terminated for poor performance. In their affidavits, Marecle and Greenawalt outlined several instances where Kreder failed to perform or complete his maintenance tasks correctly, which created workplace safety issues and were costly to the company. Additional evidence showed that Kreder frequently disappeared from his normal shift hours, only to be found smoking or napping. Marecle averred that he began speaking with his manager about Kreder’s poor performance in August 2016, approximately a year before Kreder was terminated. Furthermore, the evidence shows that appellants intended to terminate Kreder’s employment prior to his injury, but the injury halted this process.

Furthermore, the timing of Kreder’s termination does not, by itself, establish this factor. Texas courts have addressed similar circumstances and routinely concluded that a short time between the filing of a workers’-compensation claim and termination did not establish causation where other factors weighed against it. See Cardenas, 527 S.W.3d at 402 (noting that temporal proximity between making a workers’-compensation claim and termination may be circumstantial evidence of a retaliatory motive, but concluding that one day between filing the claim and termination did not establish causation where other factors weighed against it); Willis, 282 S.W.3d at 546 (“Nor is the temporal proximity of filing a claim and an employee’s discharge alone sufficient to raise a genuine issue of material fact.”); Clevinger, 2012 Tex. App. LEXIS 3128, at *9 (“It appears from the summary judgment record that there is no dispute that a short period of time elapsed between Clevinger’s injury and his termination. However, the temporal proximity of filing a claim and an employee’s termination alone is insufficient to establish a causal link.”). Accordingly, because other factors weigh against establishing a causal link, the temporal proximity between Kreder’s filing of his workers’-compensation claim and his termination is not enough.

7. Summary

*11 As demonstrated above, Kreder has not presented clear and specific evidence to establish a causal link between his filing of his workers’-compensation claim and his termination. Kreder’s own speculation based on Klarfeld’s email statement, as well as the timing of his termination, is not enough to establish this causal link. See Willis, 282 S.W.3d at 544 (noting that an employee’s subjective belief that an employer acted in retaliation for the filing of a workers’-compensation claim has no probative force because such beliefs are “no more than conclusions”). As such, we cannot say that Kreder established, by clear and specific evidence, all the essential elements of his workers’-compensation-retaliation claim. See TEX. LABOR CODE ANN. §§ 451.001-.002(b); TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(c); see also In re Lipsky, 460 S.W.3d at 587. And given this, we conclude that the trial court erred by failing to dismiss Kreder’s claims under the TCPA. See Holcomb, 546 S.W.3d at 839; Tervita, LLC, 482 S.W.3d at 282; Johnson-Todd, 480 S.W.3d at 609; see also Arey, 2019 Tex. App. LEXIS 3513, at *3. We sustain appellants’ sole issue on appeal.

III. CONCLUSION

We reverse the trial court’s order denying appellants’ TCPA motion to dismiss and remand this case to the trial court with an instruction to grant appellants’ motion to dismiss under the TCPA as to both Florida Metal Products and FLAMCO and to determine the amount of court costs, reasonable attorney’s fees, and other expenses that justice and equity require be awarded to appellants and the amount of sanctions sufficient to deter Kreder from bringing similar actions in the future.

(Chief Justice Gray dissents with a note)*

Reversed and remanded

Footnotes

1

We note that Kreder filed his original petition on June 8, 2018, and appellants filed their TCPA motion to dismiss on August 15, 2018. Since then, the Legislature has amended the TCPA. The law, as stated in this opinion, is the version of the TCPA as it applied when Kreder filed his original petition and appellants filed their TCPA motion to dismiss.

2

We recognize that the Texas Supreme Court has recently cautioned against an overly-broad application of the TCPA and noted that “[a] private contract dispute affecting only the fortunes of the private parties involved is simply not a ‘matter of public concern’ under any tenable understanding of those words.” Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127, 137 (Tex. 2019). However, as noted above, appellants have asserted that Kreder’s actions not only affected the finances of the company, but also impacted workplace safety, which falls within the health and safety provisions of section 27.001(7)(E). See id. at 136 (“We previously held that private communications are sometimes covered by the TCPA.... These prior cases involved environmental, health, or safety concerns that had public relevance beyond the pecuniary interests of the private parties involved.” (internal citations omitted)). Moreover, there is more than a “de minimus reference” to those safety concerns in this record, especially in the affidavits of Marecle and Greenawalt. See id. at 136 n.7.

3

One amendment to the TCPA since the 2019 legislative session is to the definition of “[m]atter of public concern.” Though not applicable to this case, the latest version of the TCPA now defines “[m]atter of public concern” as,

a statement or activity regarding:

(A) a public official, public figure, or other person who has drawn substantial public attention due to the person’s official acts, fame, notoriety, or celebrity;

(B) a matter of political, social, or other interest to the community; or

(C) a subject of concern to the public.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(7)(A)-(C).

4

A copy of Klarfeld’s email was included in Kreder’s response to appellants’ TCPA motion to dismiss. The email was directed to Donna Moreno, office manager for FLAMCO. Pete Alderman was also copied on the email. The email provided the following, in its entirety:

I need a written report for all of this to file with the insurance company. This looks like it’s going to be an issue. I want to know exactly what he is or will be doing to determine if it fits the required restrictions. Basically looks like to me he is a vegetable.

5

In their affidavits, Greenawalt and Marecle both described numerous mistakes made by Kreder that impacted workplace safety and cost the company money to correct. Greenawalt, in particular, noted that he “told Kreder multiple times that his work was slipping and that he would likely be fired if he did not step it up.... I told him that not a single operator on the plant wanted Kreder working on their equipment as a result of his repeated performance errors. In response, he just laughed.” Greenawalt also recounted that he had verbally disciplined Kreder before and also wrote him up for failing to “change out the rubber pad (the diaphragm) on the air valve” and lying about it. Greenawalt gave the report to Charlene Ramirez to put in Kreder’s employment file. However, Greenawalt is “unable to locate that report. Kreder had access to the cabinet where employment files were stored. I do not know if he removed the copy of the report from his file.”

*

(Chief Justice Gray dissents. A separate opinion will not issue. Chief Justice Gray notes, however, that the suit is based on the action of FLAMCO in terminating Kreder, not on statements made by its employees. Mere reference in the petition to a statement made by the defendant does not make the suit about that statement. The statements made that are referenced in Kreder’s petition may be evidence of motive, or not, or allow for the inference of motive, or not, but they are not the basis of Kreder’s claim. As such, the TCPA does not apply to Kreder’s suit and the trial court did not err in denying the motion to dismiss on the basis of the TCPA. Kreder may not be able to survive a motion for summary judgment based on the lack of a causal connection as laid out in detail in the Court’s opinion, but that is not the procedural posture in which this case is presented. Chief Justice Gray would affirm the trial court’s order denying the motion to dismiss on the basis of the TCPA, and because the Court’s does not, he respectfully dissents.)

Court of Appeals of Texas, Waco.

Elaine PALASOTA, Appellant

v.

Yuval “U.V.” DORON, Appellee

No. 10–16–00326–CV

|

Opinion delivered and filed May 2, 2018

From the 272nd District Court, Brazos County, Texas, Trial Court No. 11–003374–CVA–272, Travis B. Bryan, III, Judge

Attorneys & Firms

Julie B. Cunningham, Anderson & Cunningham, PC, Houston, TX, for Appellant.

Yuval U.V. Doron, pro se.

E. V. “Rusty” Adams III, Texas A&M University, College Station, TX, Christopher W. Peterson, Peterson Law Group, Bryan, TX, for Appellee.

Before Chief Justice Scoggins

MEMORANDUM OPINION

TOM GRAY, Chief Justice

*1 Elaine Palasota appeals from a judgment that denied her traditional and no-evidence motions for summary judgment and granted Yuval Doron’s traditional and no-evidence motions for summary judgment, finding that she was a partner in Brazos Valley Services. The trial court had entered a default judgment against Brazos Valley Services for breach of contract. Elaine Palasota complains that the trial court erred by denying her motions for summary judgment and by granting Doron’s motions. Because we find that the trial court erred by granting Doron’s motion for traditional summary judgment and by denying Elaine’s motion for no-evidence summary judgment, we reverse the judgment of the trial court and render judgment that Elaine’s no-evidence motion is granted and that she is not liable for the judgment as a partner of Brazos Valley Services.1

Ricky J. Palasota and Rick J. Palasota, Jr., as partners of Brazos Valley Services, entered into an agreement with Doron to pour a concrete foundation for a residence. According to Doron, the concrete was not poured properly and Brazos Valley Services did not repair the problems. Doron filed suit against Brazos Valley Services and took a default judgment against it. The same day the default judgment was entered, Doron amended his petition to add Elaine Palasota, Ricky J. Palasota, Sr., and Rick J. Palasota, Jr. as individual defendants.2 Elaine and Ricky are married and Rick is their son. Doron claimed that Elaine, Ricky, and Rick were all partners in Brazos Valley Services. The trial court severed the default judgment from the remaining claims against the Palasotas, making that judgment final.

While Doron was attempting to collect the judgment against the partnership, Ricky and Rick each filed for bankruptcy, leaving Elaine as the sole defendant from whom Doron could attempt to collect the debt in the remaining proceeding. Elaine filed an answer and verified denial in which she denied that she had ever been a partner in Brazos Valley Services. Elaine later filed a traditional and no-evidence motion for summary judgment asserting that there was no material fact relating to Doron’s partnership claims and that she was not otherwise liable for a breach of contract. Elaine also provided summary judgment evidence which she claimed established as a matter of law that she was not a partner in Brazos Valley Services. Elaine’s no-evidence motion asserted that Doron had no evidence to support his partnership, joint venture, or breach of contract claims against her.

*2 Doron did not file a response to Elaine’s motions, but instead filed a competing traditional and no-evidence motion for summary judgment. As evidence in support of his traditional motion, Doron attached portions of Ricky and Rick’s bankruptcy schedules which he argued were sufficient to establish that Elaine is a partner in Brazos Valley Services as a matter of law. Elaine filed a response to Doron’s motions, and attached the partnership agreement for Brazos Valley Services as well as affidavit and deposition testimony to support her position. After a hearing, the trial court granted Doron’s traditional motion for summary judgment as to his claim regarding partnership liability, finding that there is no genuine issue of material fact as to Doron’s claim that Elaine was a partner in Brazos Valley Services, granted judgment against Elaine for the amount of the default judgment, and awarded Doron attorney’s fees and court costs.

In her first issue, Elaine complains that the trial court erred by granting Doron’s traditional motion for summary judgment because he did not establish as a matter of law that Elaine was a partner in Brazos Valley Services and the award of attorney’s fees was erroneous. In her second issue, Elaine complains that the trial court erred by denying her motions for summary judgment because she established that she was entitled to judgment as a matter of law that she was not a partner (the traditional motion), and that Doron did not raise a genuine issue of material fact regarding the partnership and breach of contract claims (the no-evidence motion).

STANDARD OF REVIEW

We review a trial court’s summary judgment de novo. State v. Ninety Thousand Two Hundred Thirty—Five Dollars & No Cents in U.S. Currency, 390 S.W.3d 289, 292 (Tex. 2013).

When a party moves for summary judgment on both no-evidence and traditional grounds on the same ground or issue, we first review the trial court’s judgment under the no-evidence standard of review. Merriman, 407 S.W.3d at 248.

We review no-evidence summary judgments under the same legal sufficiency standard as directed verdicts. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009).

*3 The party moving for traditional summary judgment bears the burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Frost Nat. Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010).

When both parties move for summary judgment and the trial court grants one motion and denies the other, we review all the summary judgment evidence, determine all issues presented, and render the judgment the trial court should have. Texas Workers’ Compensation Comm’n v. Patient Advocates of Texas, 136 S.W.3d 643, 648 (Tex. 2004).

PARTNERSHIP CLAIMS

Elaine argues that the trial court erred by finding that she was a partner in Brazos Valley Services, both based on her traditional motion to which she attached evidence supporting her position, and based on her no-evidence motion where she argued that Doron has no evidence to support his claims regarding any of the elements set forth in the Business Organizations Code. Elaine further contends that the evidence presented by Doron in support of his traditional motion for summary judgment did not establish as a matter of law that she was a partner.

The Business Organizations Code states that a general partnership is an association of two or more persons to carry on a business for profit as owners, regardless of whether the persons intend to create a partnership or whether the association is called a “partnership.” TEX. BUS. ORGS. CODE § 152.051(b) (West 2012). In the Business Organizations Code, factors indicating that persons have created a partnership include:

(1) receipt or right to receive a share of the profits of the business;

(2) expression of an intent to be partners in the business;

(3) participation or right to participate in control of the business;

(4) agreement to share or sharing:

A. losses of the business; or

B. liability for claims by third parties against the business; and

(5) agreement to contribute or contributing money or property to the business.

Id. § 152.052(a).

The Supreme Court has adopted a “totality-of-the-circumstances test” for determining partnership formation. See Hoss v. Alardin, 338 S.W.3d 635, 650 (Tex. App.—Dallas 2011, no pet.) (concluding that because proponent of partnership adduced no evidence of four factors and only weak evidence of fifth factor, there was no partnership as matter of law).

*4 In support of his traditional motion for summary judgment, Doron attached the bankruptcy schedules filed by Elaine’s husband, Ricky Palasota, Sr., in his Chapter 13 Bankruptcy proceeding and the schedules and statement of financial affairs that were filed by her son, Rick Palasota, Jr., in his Chapter 13 bankruptcy proceeding. Ricky’s bankruptcy did not list Elaine as a partner in any business in the schedules. On Schedule F, which lists the unsecured creditors, Ricky listed the debt owed to Doron as a community debt, but not as a joint debt for which Elaine was jointly liable. On Schedule H, the schedule for listing co-debtors, the liability to Doron was listed and rather than listing Elaine’s name as co-debtor, Ricky listed “Spouse name not entered,” as he did for each unsecured creditor that he had listed as a community debt. In Rick, Jr.’s statement of financial affairs, he listed Elaine as being a 52% partner in a partnership with him and Ricky, but the name of the partnership was not included. Rick, Jr.’s schedules listed his father as co-debtor in the debts of the partnership, Brazos Valley Services, and stated that he and his father each owned a 50% interest in that partnership.

In his motion for summary judgment filed with the trial court, Doron made no effort to distinguish the relevant factors in the Business Organizations Code to be considered in determining whether or not Elaine was a partner in Brazos Valley Services, and his evidence did not establish that Elaine was a partner in Brazos Valley Services as a matter of law. We also find that the evidence presented by Doron in his motion for summary judgment, as the only evidence that could be considered to be presented in opposition to Elaine’s motion for no-evidence summary judgment, is no more than a mere scintilla to establish that Elaine was a partner in Brazos Valley Services. There was no evidence regarding profits of the partnership, control of the partnership, Elaine’s agreement to participate as a partner, or any contributions made by Elaine to the partnership. The evidence relating to liabilities based on the bankruptcy schedules is nothing more than a surmise to show that Elaine was liable for any debt as a partner rather than potentially liable as a spouse of the partner. When we consider the factors set forth in Section 152.051(a), we find under the “totality-of-the-circumstances” that the trial court erred by granting Doron’s traditional motion and by failing to grant Elaine’s no-evidence motion for summary judgment.

Because we have found that the trial court erred by denying Elaine’s no-evidence motion for summary judgment, we do not consider Elaine’s complaints regarding her traditional motion for summary judgment. Because the trial court erred by granting Doron’s motion for summary judgment, the trial court’s award of attorney’s fees to Doron was also erroneous. We sustain issues one and two.

CONCLUSION

Having found that the trial court erred by granting Doron’s motion for summary judgment and by denying Elaine’s no-evidence motion for summary judgment, we reverse the judgment of the trial court in its entirety and render judgment that Elaine’s no-evidence motion for summary judgment is granted and that Doron take nothing on his claims against Elaine.

Footnotes

1 Doron’s no-evidence motion for summary judgment related to affirmative defenses pled by Elaine and did not impact the central issue at stake in this proceeding, which is whether or not Elaine is a partner in Brazos Valley Services. Because of our resolution of that issue, it is not necessary to address his no-evidence motion. Further, Doron did not file a brief in this appeal, so this Court is proceeding on Elaine’s brief and the record alone.
2 Because Elaine Palasota, Ricky Palasota, and Rick Palasota, Jr. share the same last name, we will use their first names to distinguish them in this opinion.

Court of Appeals of Texas, Waco.

Kenny JONES, Appellant

v.

NRG TEXAS, LLC, Appellee

No. 10–16–00260–CV

|

Opinion delivered and filed April 26, 2017

From the 77th District Court, Limestone County, Texas, Trial Court No. 30,721–A

Attorneys & Firms

John E. Wall Jr., for Kenny Jones.

Amir H. Alavi, for NRG Texas, LLC.

Before Justice Fancy Jezek2

MEMORANDUM OPINION

AL SCOGGINS, Justice

*1 Kenny Jones filed suit again NRG Texas, LLC for wrongful termination based upon a claim of workers’ compensation retaliation. The trial court granted summary judgment in favor of NRG Texas, LLC. We affirm.

Background

Jones began his employment with NRG on March 17, 2008.1 On February 21, 2011, Jones was replacing the seals on covers in the plant’s ductwork. Jones was instructed to remove the old seal covers, which are made of steel and weighed about ten to fifteen pounds, and transport them to the shop for new seals to be installed. As Jones was removing a seal cover, it slipped from his hand and struck him in the thigh. Jones informed his crew leader, David Scott, about the injury and the pain he was experiencing. Scott instructed another worker to take Jones to the locker room and put ice on his thigh.

After putting ice on his thigh, Jones went to the plant’s first aid clinic for treatment. At the plant’s first aid clinic, Jones saw the plant Safety Leader, Monte Atchley, and told him about the injury. Atchley instructed Jones to go home for the day. Jones reported for work the next morning. Jones says that he asked to be assigned to another job that would not require him to go up and down stairs, but his request was denied. Jones sought out a Union Steward who escorted Jones to the plant first aid clinic for medical treatment. On February 23, 2011, Craig Warren, the Operations Manager in Maintenance, took Jones to the Limestone Medical Clinic Emergency Room for treatment. Jones was evaluated, and x-rays were taken of his leg. Jones was instructed to take Motrin as need for pain, and he was released to return to work.

After returning to work, Jones again asked to be assigned to a position that did not require him to climb stairs, but his request was denied. Jones had conflicts with his crew leaders and others after his return. On September 12, 2011, Jones was terminated for insubordination, and he filed a grievance. The arbitrator ruled in Jones’s favor finding that Jones should have received progressive discipline, but also finding that Jones did engage in actionable misconduct. As a condition of his reinstatement, Jones agreed that “if at any time in the next two years he should engage in insubordinate conduct his employment may be summarily ended.”

Jones returned to work in October 2012, and he reported to a different crew leader. Jones was late for work on a few occasions because he did not have reliable transportation. Jones also returned to work without a valid driver’s license which was a requirement of his employment. Jones was given time off from work to obtain a driver’s license, but he did not obtain his license. Jones admitted to driving company trucks on the property with other employees in the vehicle.

Jones took medical leave from April 1, 2013 until May 15, 2013, due to stress and anxiety he was experiencing at work and in his personal life. NRG contends that Jones failed to timely and correctly report his absences from work. His medical leave was extended until June 15, 2013 when he was released to return to work. NRG suspended Jones pending an investigation for failing to properly report his absences from work. NRG was also investigating Jones for drawing threatening messages and images on his toolbox. On June 28, 2013, Jones was terminated.

Summary Judgment

*2 Jones argues in five issues on appeal that the trial court erred in granting NRG’s no evidence and traditional motion for summary judgment. We review the trial court’s granting of a motion for summary judgment de novo. The movant in a traditional summary judgment motion must show that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. See W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

Wrongful Termination

Section 451.001 of the Texas Labor Code provides that:

A person may not discharge or in any other manner discriminate against an employee because the employee has:

(1) filed a workers’ compensation claim in good faith;

(2) hired a lawyer to represent the employee in a claim;

937 S.W.2d 444 (Tex. 1996)).

But, when an employer moves for summary judgment asserting that the employee’s termination was unrelated to his compensation claim, the employee has not been called on to produce evidence of the employer’s motive. Jenkins, 16 S.W.3d at 442.

Employer’s Reasons for Discharge

In the motion for summary judgment, NRG alleged that NRG Texas, LLC was not Jones’s employer and that NRG Energy, Inc. is his actual employer. NRG contends that there can be no retaliation between NRG Texas, LLC and Jones because NRG Texas, LLC did not employ Jones. The workers’ compensation report lists NRG Energy, Inc. as Jones’s employer. The explanation of benefits lists NRG Energy, Inc. as Jones’s employer and as the insured. Jones’s current W–2 form states that NRG Energy, Inc. is his employer, and Jones’s pay stub and earnings statement lists NRG Energy, Inc. as his employer.

*3 NRG also argues in the motion for summary judgment that NRG Energy, Inc., Jones’s actual employer, provided legitimate reasons for terminating his employment. NRG contends that after an investigation, Jones was terminated for insubordination, arguments with co-workers and threats to co-workers, failure to obtain a valid driver’s license, and failure to properly report absences from work.

The summary judgment evidence established that Jones did not have a valid driver’s license as required by his employment. The summary judgment evidence further established that Jones had confrontations with his co-workers and supervisors, and that he drew the images and statements on his tool box. Jones was late for work on multiple occasions and was absent from work without properly reporting his absence. NRG established a legitimate, non-discriminatory reason for terminating Jones.

Causal Link

Jones must show that “but for” his filing of a workers’ compensation claim, the termination would not have occurred when it did. See Jenkins v. Guardian Indus. Corp., 16 S.W.3d 431, 435 (Tex.App.–Waco 2000, pet. denied). Jones filed the workers’ compensation claim in February of 2011, and he was terminated in June of 2013. Jones’s workers’ compensation claim for $330 was paid in 2011, and Jones did not miss any work because of the claim. The two year lapse between the filing of the claim and the termination impedes a finding of retaliation.

Knowledge

Gary Mechler, the general manager for NRG, stated in his affidavit that it was his decision to fire Jones. Mechler further stated that his decision was based upon the investigation report of Human Resources Manager Rebecca Sheets and that he was unaware Jones had filed a workers’ compensation claim in 2011. Rebecca Sheets also stated in her affidavit that she was unaware that Jones had ever sought or received workers’ compensation benefits. This evidence is not controverted.

Negative Attitude

Jones alleges that Scott, his crew leader at the time of his injury, and Atchley, the plant safety leader, made negative comments about his injury. Stray remarks by people not involved in the termination decision are generally insufficient to show discrimination. Clevinger v. Fluor Daniel Services Corp., No. 10–11–00288–CV, 2012 Tex.App. LEXIS 3128 at *11, 2012 WL 1366575.

Failure to Adhere to Established Company Policies

Jones argues that NRG failed to follow established company policies by not applying the progressive discipline policy and also by not following its drug testing policy. As a condition for reinstatement, Jones signed an acknowledgement that he could be terminated at any time if he engaged in insubordinate conduct. On August 16, 2011, Jones was required to take a drug test because his supervisor allegedly observed Jones with glassy eyes, shakes, agitation, loud speech, and sweating. The record shows that NRG documented odd behavior from Jones and filled out the reasonable suspicion drug test form. Jones has not shown a failure to follow company policy.

Discriminatory Treatment in Comparison to Similarly Situated Employees

*4 Jones provides examples of other employees who he claims were treated better than him. “Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.” Ysleta Independent School District v. Monarrez, 177 S.W.3d 915, 917 (Tex.2005). Most of the employees cited by Jones held different positions than he did or had different supervisors. Jones cites one employee who had the same supervisor and position as he did who completed computer training for another employee and was not terminated. That conduct is not similarly situated to that of Jones. Jones provided no evidence of discriminatory treatment for an employee with the same job title and supervisor who was insubordinate, did not have a valid driver’s license, drew threatening images on a tool box, and failed to correctly report absences.

Stated Reason for Termination is False

Jones has not provided any evidence that the stated reasons for his termination were false. Jones admits that he does not have a valid driver’s license. He further admits altercations with other employees and supervisors and drawing the images on his toolbox. Jones also admits that he did not comply with attendance rules.

NRG presented evidence of a legitimate non-discriminatory reason for Jones’s termination. The summary judgment evidence presented by Jones amounts to no evidence of a retaliatory motive by NRG. We find that the trial court did not err in granting NRG’s no evidence and traditional motion for summary judgment. We overrule Jones’s five issues on appeal.

Conclusion

We affirm the trial court’s judgment.

Footnotes

2 The Honorable Judge Fancy Jezek, Judge of the 426th District Court, sitting by assignment of the Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 74.003(a) (West 2013).
1 There is a dispute over whether Jones’s employer was NRG Texas, LLC or NRG Energy, Inc. We will refer to Jones’s employer as NRG except where relevant to the argument before us.

Court of Appeals of Texas, Waco.

TRACTOR SUPPLY CO. OF TEXAS, L.P., Appellant

v.

Kenneth Edd MCGOWAN, Appellee

No. 10–14–00132–CV

|

Opinion delivered and filed April 28, 2016

From the 170th District Court McLennan County, Texas, Trial Court No. 2012–2652–4

Attorneys & Firms

Ashley Carr and Madeleine Dwertman, for Tractor Supply Co. of Texas, L.P.

Rachel A. Ekery, for Kenneth Edd McGowan.

Before Chief Justice Scoggins

MEMORANDUM OPINION

AL SCOGGINS, Justice

*1 Kenneth Edd McGowan brought a personal injury suit against Tractor Supply Company, Tractor Supply Company of Texas, L.P., and Dwight Bledsoe. The parties filed cross-motions for summary judgment on an affirmative defense. The trial court granted McGowan’s motion, and denied the defendants’ motion. This Court declined to accept jurisdiction on the interlocutory appeal on the affirmative defense. Prior to trial, McGowan settled with Tractor Supply Company. After a trial, the jury found Tractor Supply 100 percent negligent, and Bledsoe not negligent. The trial court entered judgment ordering Tractor Supply Company of Texas, L.P. to pay McGowan $8,767,375.81 in damages. We reverse and render.

Background Facts

Job Link Personnel Services, Inc., is a temporary staffing company in Waco, Texas. Tractor Supply Company of Texas, L.P.1 operates a distribution center in Waco, and is a client of Job Link. Job Link assigned McGowan to work in the Tractor Supply distribution center. Tractor Supply employees trained, supervised, and instructed McGowan in his job duties at Tractor Supply.

On May 21, 2012, McGowan was working as a “picker” at the Tractor Supply distribution center. Dwight Bledsoe, an employee of Tractor Supply, was loading a pallet onto a high, gravity-flow rack, and he pushed another pallet loaded with a thousand pounds of dog food off of the rack. The pallet landed on McGowan causing severe injuries.

Exclusive Remedy Defense

In the first issue, Tractor Supply argues that the trial court erred when it deprived Tractor Supply of the exclusive remedy defense of the Texas Workers’ Compensation Act that bars McGowan’s recovery as a matter of law. The Texas Workers’ Compensation Act provides that, “Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 (Tex.2005). Tractor Supply argues that at the time of the injury McGowan was a Tractor Supply temporary employee and that Tractor Supply had workers’ compensation coverage with respect to temporary employees assigned by Job Link.

An employee may have more than one employer within the meaning of the Texas Workers’ Compensation Act, and each employer who subscribes to workers’ compensation insurance may raise the exclusive-remedy provision as a bar to claims about the injury. Garza v. Exel Logistics, Inc., 161 S.W.3d at 477.

*2 The Workers’ Compensation Act states that “an ‘employee’ means each person in the service of another under a contract of hire, whether express or implied, or oral or written.” Garza v. Exel Logistics, Inc., 161 S.W.3d at 477.

As in Garza, the record shows that at the time of his injury, McGowan was working on Tractor Supply’s premises, in furtherance of Tractor Supply’s day-to-day business, and the details of his work that caused his injury were specifically directed by Tractor Supply. The record shows that McGowan worked at all times under the supervision of Tractor Supply employees. McGowan was trained by Tractor Supply employees and given his daily assignments by Tractor Supply employees. As in Garza, the evidence shows that for worker’s compensation purposes, McGowan was an employee of Tractor Supply within the meaning of Garza v. Exel Logistics, Inc., 161 S.W.3d at 477. We turn to whether Tractor Supply was covered by a workers’ compensation insurance policy.

Tractor Supply is a “non-subscriber” to Texas workers’ compensation insurance for its permanent, full-time employees. Tractor Supply provides an accident and injury occupational benefits plan for its permanent, full-time employees. Tractor Supply argues that it is covered by the workers’ compensation policy obtained by Job Link for its temporary employees.

In Garza, the client company’s contract with the temporary employment agency included a “markup” that was paid to the employment agency to purchase worker’s compensation insurance. Garza v. Exel Logistics, Inc., 161 S.W.3d at 478. The temporary employment agency did purchase workers’ compensation insurance; however, the Court found that the evidence did not indicate that coverage was extended to the client company. Id. The Court stated that the Worker’s Compensation Act does not permit a temporary employment agency to obtain coverage for a client simply by obtaining coverage for itself. Id. There must be explicit coverage for the client company. Id.

The agreement between Tractor Supply and Job Link provided that Tractor Supply would pay a “markup” of 29.50 percent to include payroll taxes, general liability, workers’ compensation insurance, drug screens, employment eligibility, and criminal background checks. The agreement indicated a workers’ compensation code of “8107” for Tractor Supply.

Job Link maintained a workers’ compensation policy issued by Texas Mutual. The policy included an Alternate Employer Endorsement. The Alternate Employer Endorsement provides:

This endorsement applies only with respect to injury to your employees while in the course of special or temporary employment by the alternate employer in the state named in the Schedule. Part One (Workers Compensation insurance) and Part Two (Employers Liability Insurance) will apply as though the alternate employer is insured.

The Alternate Employer Endorsement lists the alternate employer as “Blanket” and the address as “Various Locations in Texas Only”.

The record shows that Job Link submitted a “Temp Employee Data Worksheet for Temp Services” to the Texas Mutual Underwriting Department. The document listed the client companies of temporary service for Job Link and the zip codes for those companies. That list of client companies provided to Texas Mutual states that there would be 40 employees at Tractor Supply and gives the description of operations as “warehouse order pickers”. The “8107” classification code for workers’ compensation insurance referenced in the agreement between Tractor Supply and Job Link is included in the workers’ compensation policy issued by Texas Mutual. The “8107” classification code refers to “forklift sales, service and repair & drivers”.

*3 The Court in Garza held that there must be explicit coverage for the client company. Garza v. Exel Logistics, Inc., 161 S.W.3d at 481. The agreement excluded workers’ compensation as a category in which the client company was to be named as an additional insured. The Court found that the client company did not show it was “covered by workers’ compensation insurance coverage” for a “work-related injury sustained by the employee.” Id.

Unlike Garza, the record before us shows that the workers’ compensation insurance policy obtained by Job Link includes an Alternate Employer Endorsement. The Alternate Employer Endorsement specifically provides coverage for bodily injury in the course of special or temporary employment by the alternate employer. Although Tractor Supply is not named in the policy as an alternate employer, the policy refers to the alternate employer as “blanket” and Job Link provided Texas Mutual with a list of client companies and their respective job descriptions. The agreement between Tractor Supply and Job Link is distinguishable from that in Garza where the Court found that two employers cannot agree that one workers’ compensation policy will name only one employer but cover both. Garza v. Exel Logistics, Inc., 161 S.W.3d at 479. We find that Tractor Supply established that it is covered by workers’ compensation insurance coverage for the injury sustained by McGowan.

Tractor Supply was entitled to the exclusive remedy defense set out in TEX.R.APP.P. 47.1.

Conclusion

Having sustained Tractor Supply’s first issue on appeal, we reverse the trial court’s judgment and render judgment that Kenneth Edd McGowan take nothing by this suit. TEX.R.APP.P. 43.3.

Footnotes

1 We will refer to Tractor Supply Company of Texas, L.P. as Tractor Supply throughout the remainder of this opinion.

Court of Appeals of Texas, Waco.

INSURANCE COMPANY OF the STATE of Pennsylvania, Appellant

v.

Merle A. HUGHES, Appellee

No. 10–12–00414–CV

|

Opinion delivered and filed April 16, 2015

From the County Court at Law, Hill County, Texas, Trial Court No. 46131, A. Lee Harris, Judge

Attorneys & Firms

Michael J. Shipman, Fletcher Farley Shipman & Salinas LLP, Dallas, TX, for Appellant/Relator.

Bruce K. Thomas, Attorney at Law, Dallas, TX, for Appellees/Respondents.

Before Chief Justice Scoggins

MEMORANDUM OPINION

AL SCOGGINS, Justice

*1 Merle A. Hughes filed a claim for benefits with the Texas Worker’s Compensation Commission, and a contested case hearing was heard before the Texas Department of Insurance, Division of Worker’s Compensation (DWC). The DWC made the following decision:

[Hughes] sustained an injury, in the form of an occupational disease. Because [Hughes] did not sustain a compensable injury, she did not have disability.

Carriers are relieved from liability under TEX. LABOR CODE ANN. § 409.002, because of [Hughes] failure to timely notify her employer pursuant to § 409.001.

The date of injury is July 28, 2004.

Hughes filed suit seeking judicial review of the DWC decision and order. After a jury trial, the trial court entered judgment setting aside the DWC decision and order and finding that Hughes sustained a compensable injury on August 31, 2006 while in the course of her employment and that she sustained a disability beginning on October 6, 2006. The trial court also awarded attorney’s fees and costs to Hughes out of the benefits. The Insurance Company of the State of Pennsylvania (ISOP) appeals from the trial court’s judgment. We affirm.

Sufficiency of the Evidence

In the first issue on appeal, ISOP argues that the evidence is legally and factually insufficient to support the jury’s finding on the issue of compensability. In the second issue, ISOP argues that the evidence is legally and factually insufficient to support the jury’s answer on the issue of disability.

The Texas Workers’ Compensation Act provides that a party who has exhausted its administrative remedies and is aggrieved by a final decision of the appeals panel may seek judicial review of the appeals panel decision. TEX. LABOR CODE ANN. 410.302(b) (West 2006).

ISOP argues on appeal that Hughes failed to show that the injury arose out of her job. ISOP contends that the expert who testified at trial was not qualified and that his testimony did not establish causation related to Hughes’s employment. In its findings, the DWC decision and order states that Hughes “sustained damage or harm to the physical structure of her body due to repetitive work activities.” The DWC determined that Hughes sustained an injury in the form of occupational disease. Because Hughes was not aggrieved of the DWC’s decision that she sustained occupational disease, she did not seek judicial review of that determination. See TEX. LABOR CODE ANN. 410.302(b) (West 2006). ISOP did not seek review of the DWC’s determination that Hughes sustained occupational disease. The DWC determination that Hughes sustained occupational disease was not presented for judicial review. We overrule the first and second issues on appeal.

Timely Notice to Employer

*2 In the third issue, ISOP argues that Hughes did not seek judicial review on the issue of timely notice to her employer which relieves ISOP from all liability. The DWC decision found Hughes date of injury to be July 28, 2004 and that Hughes notified her employer of the injury on August 31, 2006, more than 30 days after the date of injury. The DWC found Hughes notice to be untimely based upon the finding of the date of injury.

In her petition, Hughes stated that she was aggrieved by the determinations: 1) that she did not sustain a compensable injury; 2) that she did not have disability; and 3) that the date of injury was July 28, 2004. Again, the Workers’ Compensation Act provides that a trial is limited to issues decided by the appeals panel and on which judicial review is sought. Section 410.302(b). We overrule the third issue.

Improper Verdict

In the fourth issue, ISOP argues that the jury verdict is improper and that Hughes failed to object to the improper verdict. Question 4 asked “Did Merle Hughes have disability resulting from the injury?” The jury answered “yes”. Question 4 then continued, “If YES, for what time period?” The jury answered “FROM Oct 2 ‘06 THRU unknown”. ISOP contends that the verdict is “incomplete on the disability period except to the limited extent of a disability of a single day.” ISOP further contends that because Hughes would benefit from the incomplete answer, she was required to object to the jury’s improper answer at the time it was given.

The DWC decision determined that because Hughes did not sustain a compensable injury, she did not have disability. The DWC decision was based upon its finding that Hughes date of injury was July 28, 2004 and that Hughes did not notify her employer until August 31, 2006. Because the DWC found that Hughes did not have disability, the DWC did not determine the duration of the disability.

TEX. LABOR CODE ANN. 410.302(b) (West 2006). Therefore, the duration of disability was not properly before the trial court.

A question is immaterial when it should not have been submitted, or when it was properly submitted but has been rendered immaterial by other findings. City of Brownsville v. Alvarado, 897 S.W.2d at 752.

*3 The question on the duration of the disability should not have been submitted to the jury. The jury found that the date of injury was August 31, 2006, and that Hughes sustained a compensable injury. The Workers’ Compensation Act provides in Section 410.207 that during judicial review of the appeals panel decision on any disputed issue relating to a workers’ compensation claim, the division retains jurisdiction of all other issues related to the claim. TEX. LABOR CODE ANN. 410.207 (West 2006). After the jury verdict finding that Hughes sustained a compensable injury, the claim must return to the DWC for a determination of the duration of disability. We find that the jury’s answer on the duration of disability was immaterial because its answer could not alter the effect of the verdict. We overrule the fourth issue.

Attorney’s Fees and Costs

In the fifth issue, ISOP argues that the trial court erred in awarding attorney’s fees in the judgment. The trial court’s judgment states:

IT IS FURTHER ORDERED, ADJUDGED and DECREED that Defendants, the Insurance Company of the State of Pennsylvania and Indemnity Insurance Company of North America are ORDERED to pay Clay Hinds, Attorney at Law the sum of $13,200.00 for attorneys fees out of the benefits of Merle Hughes in accordance with the rules and guidelines of the Texas Department of Insurance, Division of Workers’ Compensation.

Section 408.221 provides:

(a) An attorney’s fee, including a contingency fee, for representing a claimant before the division or court under this subtitle must be approved by the commissioner or court.

(b) Except as otherwise provided, an attorney’s fee under this section is based on the attorney’s time and expenses according to written evidence presented to the division or court. Except as provided by Subsection (c) or Section 408.147(c), the attorney’s fee shall be paid from the claimant’s recovery.

Texas Employers Insurance Association v. Motley, 491 S.W.2d 395, 397 (Tex.1973)).

The judgment states that the attorney’s fees are to be paid out of Hughes’s benefits. The attorney for ISOP agreed on the record that the fees were payable out of Hughes’s proceeds. We find that the trial court did not abuse its discretion in awarding the attorney’s fees out of Hughes’s benefits.

ISOP also complains that the trial court’s judgment incorrectly awards costs in the amount of $363 to Hughes. Caesar v. Bohacek, 176 S.W.3d 282,286 (Tex.App.–Houston [1 Dist.] 2004, no pet.). Hughes was the successful party. ISOP does not dispute the amount of costs or argue that the trial court miscalculated the costs. We do not find that the trial court abused its discretion in awarding costs. We overrule the fifth issue.

*4 Conclusion

We affirm the trial court’s judgment.

Court of Appeals of Texas, Waco.

Rhonda L FORSTHOFF, Appellant

v.

BRAZOS COUNTY , a self-insured County THROUGH the TEXAS ASSOCIATION OF COUNTIES RISK MANAGEMENT POOL, Appellees

No. 10–14–00297–CV

|

Opinion delivered and filed February 5, 2015

From the 272nd District Court, Brazos County, Texas, Trial Court No. 14–000052–CV–272, Robert M. Stem, Judge

Attorneys & Firms

Rhonda L. Forsthoff, Bryan, TX, pro se.

Larry J. Simmons, Germer & Gertz, Beaumont, TX, for Appellees/Respondents.

Before Chief Justice Scoggins

MEMORANDUM OPINION

AL SCOGGINS, Justice

*1 In this pro-se appeal, appellant, Rhonda L. Forsthoff, challenges the trial court’s granting of summary judgment in favor of appellee, Brazos County, a self-insured county through the Texas Association of Counties Risk Management Pool. We affirm.

I. BACKGROUND

This matter pertains to a claim filed by appellant for workers’-compensation benefits stemming from an on-the-job accident that occurred on May 30, 2012. Appellant, formerly a detention officer and quartermaster at the Brazos County jail, has alleged that she injured her lower back while lifting a case of toilet paper at the jail. In her filings, appellant has argued that she sustained a sacroiliac injury that was compensable.

The Texas Workers Compensation Commission conducted a contested case hearing, at appellant’s request, to determine whether appellant’s alleged sacroiliac injury was a “compensable injury.” At the conclusion of the hearing, the hearing officer issued an order stating that: (1) appellant sustained a compensable injury on May 30, 2012, but that the compensable injury did not extend to and include her alleged sacroiliac injury; (2) appellant reached maximum medical improvement (“MMI”) on August 23, 2012; and (3) appellant’s impairment rating (“IR”) was 5%. Accordingly, the hearing officer denied appellant benefits related to her alleged sacroiliac injury.

Unhappy with the hearing officer’s decision, appellant appealed. On November 25, 2013, the Texas Workers Compensation Appeals Panel affirmed the hearing officer’s decision. Thereafter, appellant appealed the decision of the Texas Workers Compensation Commission and filed suit in the 272nd Judicial District Court in Brazos County.

In response to appellant’s suit, appellee filed an answer denying appellant’s allegations and a motion for summary judgment. In its summary-judgment motion, appellee asserted that the undisputed medical evidence conclusively established that appellant’s May 30, 2012 accident was not the cause of her alleged sacroiliac injury. Appellee attached numerous medical records to its motion. The trial court set appellee’s motion for a hearing. Seven days prior to the hearing, appellant filed an unsworn pro-se response to the summary-judgment motion without attaching any evidence.

On July 14, 2014, the trial court conducted a hearing on appellee’s summary-judgment motion. Appellant was present and had an opportunity to argue her case. At the conclusion of the hearing, the trial court indicated that it would take the matter under advisement. A week after the hearing, appellant filed a pro-se brief, attaching evidence for the first time. Subsequently, on August 4, 2014, the trial court granted appellee’s motion for summary judgment and entered a final judgment dismissing appellant’s claim. This pro-se appeal followed.

II. STANDARD OF REVIEW

We review a trial court’s summary judgment de novo. id. at 756.

III. ANALYSIS1

*2 At the outset, we note that, in her brief, appellant does not cite any legal authority to support her contentions that the trial court erred. Instead, she merely reargues the facts that have been presented to the trial court and the Texas Workers Compensation Commission. Texas Rule of Appellate Procedure 38 requires a party to provide the reviewing court with “a succinct, clear, and accurate statement of the argument made in the body of the brief.” Tesoro Petroleum Corp., 106 S.W.3d at 128.

And even if appellant had adequately briefed her issues, viewing the evidence in the light most favorable to appellant, we cannot say that the trial court erred in granting summary judgment in favor of appellee. See TEX. R. EVID. 603 (“Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation ....”); see also id. at R. 702 (“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”). Accordingly, we overrule all of appellant’s issues on appeal.

IV. Conclusion

*3 Based on the foregoing, we affirm the judgment of the trial court.

Footnotes

1 Appellant’s pro-se brief does not contain a specific section for issues presented. See Tex. R. App. P. 38.1(f). However, based on a liberal reading of her brief, appellant appears to challenge the trial court’s conclusions of law that her sacroiliac injury was not compensable; that she achieved MMI on August 23, 2012; and that her IR is 5%.
2 We also recognize that appellant elected to represent herself on appeal. Under Texas law, prose litigants, as appellant is here, are held to the same standards as licensed attorneys with regard to compliance with applicable laws and rules of procedure. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978) (“There cannot be two sets of procedural rules, one for litigants with counsel and the other for litigants representing themselves. Litigants who represent themselves must comply with the applicable procedural rules, or else they would be given an unfair advantage over litigants represented by counsel.”)).
3 Treating Doctors Siva Ayyar and John P. Obermiller both determined that appellant’s “compensable injury” only included a lumbar strain. Moreover, in his report, Dr. Obermiller mentioned that appellant’s selected doctor, Catherine Locke, M.D., merely diagnosed appellant with back pain; Dr. Locke did not mention any neurologic losses attributable to sacroilitis. Doctors Hadley and Fino also concluded that appellant had a lumbar injury but did not mention any neurologic loss or sacroilitis. Nevertheless, appellant was later diagnosed with sacroiliac joint dysfunction; however, it was determined that this diagnosis was not caused by appellant’s May 30, 2012 accident. Appellant has not tendered any competent summary-judgment evidence to refute these findings.

Court of Appeals of Texas,

Waco.

Willie O. FLENTGE, Jr. and Charles Ray Flentge, Appellants

v.

Daniel W. JUNEK, Independent Executor of the Estate of Willie O. Flentge, Sr., Appellees.

No. 10–14–00010–CV.

|

Nov. 13, 2014.

From the 21st District Court, Burleson County, Texas, Trial Court No. 27,040.

Attorneys & Firms

Scott Williams, for Willie O. Flentge, Jr.

Jeffrey M. Burns, for Willie O. Flentge, Sr. and Daniel W. Junek.

Before Chief Justice SCOGGINS.

MEMORANDUM OPINION

AL SCOGGINS, Justice.

*1 Willie O. Flentge, Jr. and Charles Ray Flentge filed suit contesting the will of Willie O. Flentge, Sr. Daniel Junek, Independent Executor of the Estate of Willie O. Flentge, Sr. filed both a traditional and no evidence motion for summary judgment. The Flentges filed a motion for partial summary judgment. The trial court granted Junek’s motion for summary judgment. We affirm.

Background Facts

Willie O. Flentge, Sr. and Laverna Flentge were the parents of five children: Willie O. Flentge, Jr., Charles Ray Flentge, Carl Dean Flentge, Mary Flentge McAuley, and David Lynn Flentge. The seven family members owned equal shares of W.L. Ranch, Inc., a family corporation. Willie O. Flentge, Sr. executed a last will and testament in 1979. Then in 2008, Willie O. Flentge, Sr. executed another last will and testament that provided for his entire estate to be awarded to his wife, Laverna, including his shares of W.L. Ranch.

Willie Sr. died in 2010, and his 2008 Will was admitted to probate.

In 2011, Carl, David, Laverna, and Junek as Independent Executor of the Estate of Willie O. Flentge, Sr. filed a derivative suit against Willie Jr., Charles, and Mary seeking to prevent the unauthorized misappropriation of mineral royalties. In that suit, both parties moved for summary judgment on the issue of whether a restriction in the bylaws of the corporation prevented the testamentary transfer of shares. The trial court granted the summary judgment motion of Carl, David, Laverna, and Junek, finding that the bylaw restriction did not prevent a testamentary transfer of the corporation shares.

In 2012, the Flentges filed the present suit contesting the 2008 Will. The Flentges alleged in their original petition that the 2008 will of Willie O. Flentge, Sr. resulted entirely from the fraudulent conduct and undue influence of Carl Dean Flentge and that Willie O. Flentge lacked sufficient testamentary capacity to understand and make a will. The Flentges filed an amended petition that further alleged that the corporate bylaws of W.L. Ranch require that any transfer of shares must first be tendered to the corporation for it to exercise a right of first refusal. The amended petition states that the assets of the estate of Willie O. Flentge, Sr. include shares of W.L. Ranch stock and that they must be tendered to the corporation to exercise its right of first refusal.

Junek filed a motion for summary judgment alleging both traditional and no evidence grounds. The Flentges filed a motion for partial summary judgment requesting that the trial court order Junek to tender to W.L. Ranch any shares of the stock owned by the probate estate at the time of death of Willie O. Flentge, Sr. The trial court granted Junek’s motion stating in its order:

... that there are no genuine issues about any material fact and that there is no evidence to support Will Contestants Willie Otto Flentge, Sr. (sic) and Charles Ray Flentge claims for undue influence, lack of testamentary capacity, and fraud and finding further that Willis Contestants Willie Otto Flentge, Sr. (sic) and Charles Ray Flentge lack standing to bring such claims.

*2 The trial court denied all relief sought by the Flentges.

Summary Judgment

In the first issue, the Flentges argue that the trial court erred in denying their motion for partial summary judgment. When both parties move for summary judgment and the trial court grants one motion and denies the other, the reviewing court should review the summary judgment evidence presented by both sides and determine all questions presented and render the judgment the trial court should have rendered. Texas Workers’ Compensation Commissionn v. Patient Advocates of Texas, 136 S.W.3d at 648.

The Flentges filed a traditional motion partial for summary judgment. Under the traditional summary judgment standard, the movant has the burden to show that no genuine issues of material fact exist and that it is entitled to judgment as a matter of law. Van Es v. Frazier, 230 S.W.3d 770, 784 (Tex.App.-Waco 2007, pet. denied). Thus, a summary-judgment proceeding focuses on the merits of the plaintiff’s claim or on an affirmative defense.

The Flentges’ amended petition states that the transferability of the shares of W.L. Ranch stock is restricted by the corporate bylaws and requests the trial court to order Junek to tender the shares of stock owned by the estate to the corporation for it to exercise its right of first refusal. The Flentges’ partial motion for summary judgment argues that the testamentary transfer of stock is subject to the restriction on transfer of shares set out in the corporation’s bylaws. The motion requests the trial court to order Junek to tender the shares of stock owned by the estate to the corporation and to order that Carl Dean Flentge not be allowed to vote on whether the corporation may exercise its right of first refusal to purchase the shares.

The Flentges did not set out a cause of action and establish the elements of the cause of action on testamentary transfer. The Flentges did not conclusively establish each element of a claim so as to be entitled to summary judgment. The trial court did not err in denying the Flentge’s partial motion for summary judgment.

Standing

*3 In the second issue, the Flentges argue that the trial court erred in finding that they lacked standing to file the lawsuit. Junek alleged in the motion for summary judgment that there was no evidence of undue influence or fraud and that there was no evidence of lack of testamentary capacity. Junek further alleged that the Flentges lacked standing to bring the will contest. The trial court found that there was no genuine issues of material fact to support the claims for undue influence, fraud, and lack of testamentary capacity and the Flentges lacked standing to bring the claims. The Flentges did not present any evidence raising a fact issue on the causes of action for undue influence, fraud, and lack of testamentary capacity. The Flentges do not argue on appeal that there was evidence of undue influence, fraud, or lack of testamentary capacity. We must affirm the summary judgment if any of the summary judgment grounds are meritorious. Texas Workers’ Compensation Commissionn v. Patient Advocates of Texas, 136 S.W.3d at 648. Because summary judgment was proper on the grounds of undue influence, fraud, or lack of testamentary capacity, we affirm the trial court’s order granting summary judgment. We overrule the second issue.

Conclusion

We affirm the trial court’s order granting Independent Executor Daniel Junek’s motion for summary judgment.

(Chief Justice GRAY concurring).

CONCURRING OPINION

TOM GRAY, Chief Justice.

The pleadings and the briefing filed by the parties in this proceeding make a logical and internally consistent opinion virtually impossible. My colleagues have, nevertheless, addressed and resolved the issues raised and the responses thereto. In this concurring opinion I will endeavor to cut to the chase so that subsequent readers of the memorandum opinion understand its precedential limitations to the facts and legal arguments presented by the parties and not as an endorsement of the pleadings or the procedures used in this proceeding to obtain a result.

STANDING

There is little doubt that brothers Willie and Charles have standing to contest the validity of Father’s will. If the 2008 will was determined to be invalid, the 1979 will would be considered for probate. It is alleged that the provisions of the 1979 will provided that Willie and Charles would be beneficiaries thereof. As such, it is beyond dispute they are persons-interested-in-the-estate of Father within the meaning of the Estates Code.

But the real standing issue is whether they have standing in this proceeding to compel the independent executor of Father’s estate to tender the shares in Ranch to the corporation under the stock transfer clause in Ranch’s by-laws. This issue should not be before this Court at this time. First, that issue has been ruled on in another suit, which is apparently still pending, regarding corporate governance of Ranch. For Willie and Charles to have standing to bring that issue before any court, they, as shareholders of Ranch, would have to show the corporation had a right that it had failed to exercise on behalf of its owners, in essence a shareholders’ derivative suit. That is not what this suit is. This is a will contest. It is the shareholders’ derivative action attempted to be maintained in this will contest suit that Willie and Charles do not have standing to bring based on the evidence presented in the summary judgment proceeding; but that is a non-issue in this will contest suit.

UNDUE INFLUENCE, FRAUD AND LACK OF TESTAMENTARY CAPACITY

*4 Notwithstanding this is a will contest, Willie and Charles presented no evidence to show that Father’s will was the result of undue influence (fraud or coercion) or that Father lacked mental capacity at the time the will was executed. Because the will had already been admitted to probate, the burden was on Willie and Charles to establish the elements of a proper will contest and they wholly failed to do that in response to the Independent Executor’s no-evidence motion for summary judgment. Having failed to present sufficient evidence of even a prima facie claim regarding the invalidity of Father’s will, the trial court correctly granted the no-evidence motion for summary judgment.

ACTIONS OF THE INDEPENDENT EXECUTOR

The actions of the Independent Executor of Father’s will regarding the failure to tender Ranch stock to the corporation is a convoluted problem for Willie and Charles. If they had been successful in challenging the validity of Father’s will, the defrocked Independent Executor would have to account for his actions in the method of the disposition of Ranch stock. Alternatively, whether or not the challenge to Father’s will is successful, as discussed above, they have no standing in this will contest suit to challenge the actions of the duly appointed independent executor as it relates to the tender of shares of Ranch pursuant to the stock transfer restriction.1 But this gets really twisted when you consider that now Mother, the sole beneficiary of Father’s will has also passed. But whatever is going on in Mother’s estate has, apparently, not found its way into complicating what the independent executor is doing in Father’s estate.

SUMMARY

Thus, notwithstanding that the bulk of the briefs in this appeal related to the interpretation of a stock transfer restriction in the corporate bylaws of Ranch, that interpretation is not properly before this Court and is therefore not an issue upon which the Court is rendering an opinion or judgment.

CONCLUSION

With these comments, I respectfully concur in the judgment affirming the trial court’s order that denies Willie and Charles’s will contest and denies any other requested relief.2

Footnotes

1 Having lost the will contest, and because they are not beneficiaries of Father’s will, Willie and Charles are not in a position to compel an accounting of the actions of the independent executor or a distribution of Father’s estate.
2 Actually, the trial court erred when he found that because they failed to present any evidence of fraud, undue influence, or lack of testamentary capacity, Willie and Charles lacked standing and therefore dismissed Willie and Charles’s will contest. In its fundamental result, this disposition is essentially the same as entry of a take nothing judgment on their will contest claim which would have been the technically correct form of judgment. Given the confusion created by the parties and the failure to cleanly present and argue the issues, I cannot fault the trial court for this oversight; and the parties do not argue that dismissal of the claim was harmful error when a take nothing would have been the correct judgment.

Court of Appeals of Texas,

Waco.

SOUTHERN COUNTY MUTUAL INSURANCE COMPANY, Appellant

v.

GREAT WEST CASUALTY COMPANY, Appellee.

No. 10–14–00032–CV.

|

May 22, 2014.

Attorneys & Firms

*349 William David Farmer, Chad W. Schreiber, Curney Farmer House & Osuna, San Antonio, for Appellant.

Jeffrey S. Reddall, Law Office of Jeffrey S. Reddall, Sugar Land, for Appellee.

Before Chief Justice SCOGGINS.

OPINION

TOM GRAY, Chief Justice.

Southern County Mutual Insurance Company appeals the trial court’s grant of a summary judgment in favor of Great West Casualty Company. Great West sued Southern County to collect on a judgment in an amount of $31,162.02 rendered in favor of Great West against an insured of Southern County. Because the trial court did not err in granting Great West’s motion for summary judgment, the trial court’s judgment is affirmed.

BACKGROUND

Tyron Black was injured in a vehicle collision with an employee of Standard Lee Hodges and his business, UTB Trucking, while the employee was acting in the course and scope of his employment. Hodges’s insurance company, Southern County, denied coverage of Black’s claims because the vehicle involved in the collision was not covered by Hodges’s insurance policy with Southern County. Black then sought compensation for his injuries through his employer’s workers’ compensation carrier, Great West, which paid Black $31,162.02. Great West, as the subrogee of Black, sued Hodges, individually and doing business as UTB Trucking, to recoup the money Great West paid to Black. Great West obtained a judgment against Hodges in the amount of $31,162.02. When Hodges did not pay the judgment, Great West sued Southern County to enforce the judgment pursuant to a federal motor carrier endorsement, the MCS–90, attached to Hodges’s policy with Southern County.

Southern County and Great West each filed traditional motions for summary judgment: Southern County arguing that Great West could not recover through the MCS 90 endorsement because the endorsement was not applicable to disputes among *350 insurers, and Great West arguing that the endorsement inures to the benefit of an insurer asserting its subrogation rights pursuant to the Texas Labor Code. The trial court granted Great West’s motion for summary judgment. In three issues argued together, Southern County argues that the trial court erred in granting Great West’s motion for summary judgment and in denying Southern County’s motion for summary judgment because a workers’ compensation carrier may not use the MCS–90 endorsement to recover its subrogation interest.

SUMMARY JUDGMENT

We review a trial court’s decision to grant or to deny a motion for summary judgment de novo. See Lotito v. Knife River Corporation–South, 391 S.W.3d 226, 227 (Tex.App.-Waco 2012, no pet.).

The MCS–90 Endorsement

There is no dispute that Hodges had an insurance policy with Southern County which denied coverage of Black’s personal injury claims because Hodges’s vehicle involved in the collision was not covered by the insurance policy with Southern County. There is also no dispute that the policy contained the federally-mandated “Endorsement for Motor Carrier Policies of Insurance for Public Liability under Sections 29 and 30 of the Motor Carrier Act of 1980,” referred to as an MCS–90, which must be attached to any liability policy issued to a registered motor carrier pursuant to 31139(b)(2) and 49 C.F.R. § 387. Further, there is no dispute that Great West obtained a judgment against Hodges for the amount Great West paid to Black and that Hodges failed to pay that judgment. The dispute is whether Great West, standing in the shoes of Black, may enforce the MCS–90 endorsement and require Southern County to pay the final judgment Great West recovered against Hodges for the benefits Great West paid to Black as a result of the collision. This particular dispute has not been addressed by any court in Texas.

The MCS–90 in Southern County’s policy states in pertinent part?

In consideration of the premium stated in the policy to which this endorsement is attached, the insurer (the company) agrees to pay, within the limits of liability described herein, any final judgment recovered against the insured for public liability resulting from negligence in the operation, maintenance or use of motor vehicles subject to the financial responsibility requirements of Sections 29 and 30 of the Motor Carrier Act of 1980 regardless of whether or not each motor vehicle is specifically described in the policy .... It is understood and agreed that *351 no condition, provision, stipulation, or limitation contained in the policy, this endorsement, or any other endorsement thereon, or violation thereof, shall relieve the company from liability or from the payment of any final judgment, within the limits of liability herein described, irrespective of the financial condition, insolvency or bankruptcy of the insured.

T.H.E. Ins. Co. v. Larsen Intermodal Servs., 242 F.3d 667, 671 (5th Cir.2001). Such is the case in this appeal.

But Southern County argues that the MCS–90 is limited to recovery by the injured party, not an insurance company. The purpose of the MCS–90, Southern County argues, is to assure that injured members of the public would be able to obtain judgments collectible against negligent authorized carriers. In support of its argument, Southern County relies on various courts’ opinions interpreting the applicability of the MCS–90 to the facts of those particular opinions. However, none of those cases involve disputes between a subrogee of an injured member of the public and the insurer of the negligent motor carrier. See e.g. Carolina Cas. Ins. Co. v. Underwriters Ins. Co., 569 F.2d 304 (5th Cir.1978) (dispute between insurers of the owner of the tractor and the owner of the trailer and the insurers of the lessee and sub-lessee of the tractor and trailer).

We understand and agree with the general principle stated in those opinions that as between an insurer with an MCS–90 endorsement and its insured or between joint insurers of the insured, the MCS–90 endorsement is not triggered. See e.g. T.H.E. Ins. Co. v. Larsen Intermodal Servs., 242 F.3d 667, 673 (5th Cir.2001). However, in this case, the situation is different. The dispute is not between joint insurers of Hodges or between Hodges and Southern County. The dispute is between Great West, who paid Black’s personal injury expenses, and Southern County who was obligated pursuant to the MCS–90 to pay the judgment against Hodges, Southern County’s insured, for Black’s expenses.

The dispute here is much like that found in Tri–Nat’l, Inc. v. Yelder, No. 1:12CV209 SNLJ, 2014 WL 520989, 2014 U.S. Dist. LEXIS 15526 (E.D.Mo. Feb. 7, 2014, no review h.).

Workers’ Compensation Subrogation

In this case, Black was injured and claimed workers’ compensation benefits as he was entitled to do. See Reliance Ins. Co. v. Hibdon, 333 S.W.3d 364, 375 (Tex.App.-Houston [14th Dist.] 2011, pet. denied).

Subrogation places one party in the place of another so that the new party gains the rights of the former party regarding a claim. Guillot v. Hix, 838 S.W.2d 230, 232 (Tex.1992). The carrier’s right overrides that of the employee after it pays or agrees to pay compensation. Id. And, because it has a statutory right to subrogation, a carrier’s right to reduce liability upon payment by a third party must not be “compromised.” Id.

Southern County does not argue that Black could not recover under the MCS–90 had Black chosen to sue Hodges and obtain a judgment against Hodges rather than accepting benefits from the workers’ compensation carrier, Great West. Because of the subrogation provision, Great West gained Black’s right to sue Hodges and recover from Southern County the unpaid judgment pursuant to the MCS–90 endorsement once Great West paid benefits to Black. In essence, Great West became Black. Since Black could recover from Southern County pursuant to the MCS–90 endorsement, so too could Great West. See Ft. Worth Lloyds v. Haygood, 151 Tex. 149, 246 S.W.2d 865, 870 (1952) (“there is nothing unjust in giving to the carrier who pays the compensation the right to recoupment under the statute.”).

CONCLUSION

The MCS–90 endorsement is triggered because Hodges’ underlying insurance policy with Southern County did not provide liability coverage for the accident and Hodges did not pay the judgment against him. As a result, Great West is entitled to payment from Southern County under the MCS–90 endorsement and the Workers’ Compensation Act to satisfy the judgment against Hodges. Therefore, Great West is entitled to judgment as a matter of law. For these same reasons, Southern County *353 is not entitled to judgment as a matter of law.

The trial court’s judgment is affirmed.

Court of Appeals of Texas,

Waco.

Dan DANIELS, Appellant

v.

INDEMNITY INSURANCE CO. OF NORTH AMERICA, Appellee.

No. 10–11–00142–CV.

|

July 18, 2013.

|

Rehearing Overruled Sept. 25, 2013.

From the 18th District Court, Johnson County, Texas, Trial Court No. C2007–00092. John Edward Neill, Judge.

Attorneys & Firms

Larry R. Wright, Larry R. Wright PC, Winnsboro, TX, for Appellant/Relator.

Julie B. Tebbets, Ayers & Ayers, Colleyville, TX, for Appellee/Respondent.

Before Chief Justice SCOGGINS.

MEMORANDUM OPINION

REX D. DAVIS, Justice.

*1 Dan Daniels sued Indemnity Insurance Company of North America (Indemnity), the workers’ compensation insurance carrier of his former employer, ThyssenKrupp Elevator Corporation, seeking judicial review of an adverse administrative decision of the Texas Department of Insurance, Division of Workers’ Compensation (DWC). The trial court entered summary judgment for Indemnity and denied Daniels’s motion for partial summary judgment and request for attorney’s fees. Raising seven issues, Daniels appeals. We will affirm.

Background

After suffering compensable injuries while employed by ThyssenKrupp as an elevator installer, Daniels filed a claim for workers’ compensation benefits, underwent surgery, and reached maximum medical improvement with a 19% impairment rating. Daniels later obtained employment as a State of Missouri elevator inspector with post-injury earnings of $691.25 per week, including the use of a vehicle for work-related purposes. Because he had an impairment rating of more than 15% and had returned to work allegedly earning less than 80% of his pre-injury average weekly wage and was otherwise qualified, Daniels sought and was awarded Supplemental Income Benefits (SIBs) for the first quarter qualifying period in the amount of $1,634.92. See TEX. LAB.CODE ANN. § 408.142(a) (West 2006). Indemnity disputed the award of SIBs and sought administrative review.

The decision of the hearing officer at the contested case hearing noted that Daniels had failed to show that, for the purpose of Daniels’s pre-injury average weekly wage (AWW) determination, ThyssenKrupp’s payments to a “health plan” were health insurance premium payments or the value of such premiums. Also, the decision noted that, for the purpose of Daniels’s post-injury wage determination, Daniels had failed to show the value of the benefit of the vehicle provided by the State of Missouri. The hearing officer determined that Daniels’s pre-injury AWW was $1,071.53 and that his post-injury earnings were $691.25 per week but denied the award of SIBs, ruling that Daniels had failed to establish that he earned less than 80% of his AWW during the first quarter qualifying period. The appeals panel of the DWC sustained the hearing officer’s decision, and this suit followed.

Daniels had the burden to establish his AWW. Tex. Mut. Ins. Co. v. Cruz, 307 S.W.3d 925, 931 (Tex.App.-Eastland 2010, pet. denied). Daniels moved for partial summary judgment, asserting that the hearing officer’s AWW calculation was legally incorrect because it understated his AWW by excluding a $358 weekly payment made by ThyssenKrupp to Daniels’s union for “health and other benefits.” Daniels also asserted that the benefit of his employer-provided vehicle was not properly includable in his post-injury earnings because the vehicle could be used for official business only. Indemnity moved for summary judgment on the ground that the hearing officer’s determination was correct and that Daniels was not entitled to SIBs as a matter of law.

Agreed Judgment?

*2 We first address Indemnity’s contention that Daniels’s appeal fails because he agreed to the judgment. We disagree.

The record shows that the trial court initially denied both sides’ motions for summary judgment. After further briefing, in a letter the trial court agreed with Indemnity on the exclusion of the payment by ThyssenKrupp to Daniels’s union for the AWW calculation. In another letter, the trial court ruled that Daniels could not recover attorney’s fees. Daniels then filed a motion for the trial court to clarify or reconsider its rulings. Thereafter, Indemnity’s attorney sent a proposed judgment to the trial court, stating: “As you have requested, attorneys for both plaintiff and defendant have signed the proposed Final judgment.” After the judgment was entered, Daniels filed a motion for new trial complaining about the same issues raised in this appeal.

Below the trial judge’s signature on the judgment is the word “AGREED:,” below which are the signatures of counsel for Daniels and for Indemnity. The signature of Daniels’s attorney is the sole basis for Indemnity’s contention that the judgment is a consent judgment or an agreed judgment that can only be collaterally attacked. See, e.g, Baw v. Baw, 949 S.W.2d 764, 766 (Tex.App.-Dallas 1997, no writ) (“A party cannot appeal from a judgment to which it has consented or agreed absent an allegation and proof of fraud, collusion, or misrepresentation.... A party’s consent to the trial court’s entry of judgment waives any error, except for jurisdictional error, contained in the judgment, and that party has nothing to properly present for appellate review.”).

Notably, the judgment itself does not indicate that the trial court is making a disposition of the case according to an agreement between the parties. See Morse v. Delgado, 975 S.W.2d 378, 381 (Tex.App.-Waco 1998, no writ) (“When counsel submits a proposed judgment to the court, he generally obtains consent from opposing counsel indicating that the opposing party approves the proposed judgment as to form or as to form and substance. This practice allows the court to enter judgment without conducting a hearing to determine whether the opposing party has any objections to the proposed judgment. It facilitates the prompt entry of judgment and the initiation of the appellate process.”).

*3 And finally, that Daniels filed his motion for new trial on the merits of the summary judgment strongly tends to show that he was not entering into a consent judgment or an agreed judgment. See Hill v. Bellville Gen. Hosp., 735 S.W.2d 675, 678 (Tex.App.-Houston [1st Dist.] 1987, no writ) (“The notation, ‘Approved’, standing alone, is too indefinite to justify declaring, as a matter of law, that a judgment is a consent judgment. Here, there are no other indicia of consent or agreement. To the contrary, the Hills had already filed an appeal bond and a request to the clerk to include material in the transcript. Such existing indications of the intent to appeal strongly tend to prove that the Hills did not consent to the judgment rendered by the court, but rather sought to nullify and reverse that judgment. ‘Consent’ must be explicitly and unmistakably given, and the record does not show that it was so given in this case.”).

Standard of Review

We review a trial court’s summary judgment de novo. American Housing Found. v. Brazos County Appraisal Dist., 166 S.W.3d 885, 887 (Tex.App.-Waco 2005, pet. denied).

Pre–Injury AWW and Employer’s Payments to Union

In issues one, three, four, and five, Daniels contends that the trial court erred in granting summary judgment to Indemnity because the $358 weekly payment made by ThyssenKrupp to Daniels’s union for “health and other benefits” should have been included in calculating Daniels’s AWW and because the DWC should have required Indemnity and ThyssenKrupp to file an AWW statement that included the $358 weekly payment. In his deposition, Daniels said that he did not know if he received health insurance from his union.

The Labor Code defines wages to include “all forms of remuneration payable for a given period to an employee for personal services. The term includes the market value of board, lodging, laundry, fuel, and any other advantage that can be estimated in money that the employee receives from the employer as part of the employee’s remuneration.” TEX. LAB.CODE ANN. § 408.041(a) (West 2006). The Texas Administrative Code further provides for the calculation of AWW as follows:

*4 (b) Except as provided by § 128.7, an employee’s wage, for the purpose of calculating the AWW, shall include:

(1) all pecuniary wages (as defined by § 126.1 of this title (relating to Definitions Applicable to All Benefits)) paid by the employer to the employee even if the employer has continued to provide the wages after the date of injury (in which case these wages could be considered post-injury earnings under § 129.2 of this title (relating to Entitlement to Temporary Income Benefits)); and

(2) all nonpecuniary wages (as defined by § 126.1 of this title) paid by the employer to the employee prior to the compensable injury but not continued by the employer after the injury (though only during a period in which the employer has discontinued providing the wages).

28 TEX. ADMIN. CODE § 128.1(b).

Rule 126.1 defines and gives examples of nonpecuniary wages:

(2) Nonpecuniary Wages—Wages paid to an employee in a form other than money. Examples of nonpecuniary wages include but are not limited to:

(A) Health insurance premiums;

...

(C) Clothing/uniforms;

...

(E) Payment of professional license fees;

...

(G) Provision of a vehicle/fuel.

28 TEX. ADMIN. CODE § 126.1.

The affidavit of Pamela Carr, ThyssenKrupp’s Payroll Manager, states in part:

While employed by ThyssenKrupp Elevator Corporation, Dan Daniels was a member of the International Union of Elevator Constructors (“the Union”). During Mr. Daniels[’s] employment, the Union was subject to the Company Agreement (the “CBA”) with the Union, which was effective from July 9, 2002 through July 8, 2007. The CBA provided for health insurance benefits for Union members, among other things.

ThyssenKrupp does not include monies for health insurance benefits on the Form TWCC–3 if, as in this case. [sic ] ThyssenKrupp pays National Elevator Benefit Plans (“NEBP”), who is the plan administrator for the labor Union health insurance plan, at a certain rate per hour worked by the employee, as required by a CBA. ThyssenKrupp does not pay employees directly for health insurance benefits.

Relying on the plain language of Rule 128.1(b), Indemnity argues that the payments made by ThyssenKrupp to Daniels’s union should not be included in the AWW calculation because they are not fringe benefits “paid by the employer to the employee,” but are negotiated payments by ThyssenKrupp to the union for a number of union expenses, including health benefits for union members,1 and because they are not payments of health insurance premiums.2 We agree that summary judgment for Indemnity was proper on this basis and therefore overrule issues one, three, four, and five for this reason.

Post–Injury Benefits

In issue two, Daniels complains that the trial court erred in affirming the DWC decision pertaining to Daniels’s failure to prove the value of the vehicle provided to him by the State of Missouri in meeting his burden of showing that his post-injury weekly earnings were less than 80% of his pre-injury AWW. Daniels argues that the benefit of his employer-provided vehicle was not properly includable in his post-injury earnings as nonpecuniary wages because the vehicle could be used for official business only and thus had no personal value to him.

*5 As noted above, it is undisputed that, for pecuniary wages, Daniels’s pre-injury AWW was $1,071.53 and that his relevant post-injury earnings were $691.25 per week. Eighty percent of his $1,071.53 AWW is $857.22, and $691.25 is $165.97 less than the 80% figure. Indemnity argues that the nonpecuniary wages (fringe benefits), including the use of a vehicle, that Daniels receives through his employment with the State of Missouri as an elevator inspector should be considered in determining whether the trial court’s affirmance of the DWC decision is correct and that their value exceeds $165.97.

As for the vehicle, Daniels admitted at the contested case hearing that it was a benefit to him, but he could not place a value on it. In his deposition, Daniels said that he was provided the car on his first day at work, and he admitted that he had used the vehicle for personal use in the past. Daniels and Donna Moore, a State of Missouri personnel analyst with the Division of Fire Safety (the state agency Daniels works under), both testified that Daniels’s vehicle was an “assigned vehicle,” and the Division’s regulations provide that employees who “use assigned vehicles for commuting purposes are subject to IRS reporting requirements.” Moore also said that the State provides Daniels with a gas card for his state vehicle.

Daniels testified that when he began his state employment, the State paid for him to complete around six months of self-study courses to obtain necessary certifications, and Daniels estimated the value of those courses to be between $3,500 and $5,000. Moore testified that two of the classes that Daniels had to take cost $1,295 and $480, respectively. The State also provides Daniels with health insurance, and Moore said that it began two weeks after Daniels started. She testified that while the employee pays a “fee,” the State pays the premium, which was $550 a month at the time of her deposition. The State also pays the premiums on life insurance and long-term disability insurance for Daniels.

Daniels and Moore also both testified that the State provides Daniels with uniforms, and Daniels said that he therefore does not have to buy clothes for work. The State also provides Daniels with a laptop computer and a digital camera, and Daniels said that he uses both items for personal use.

We agree with Indemnity that the summary judgment evidence on Daniels’s post-injury nonpecuniary wages (in the form of the benefits noted above) establishes as a matter of law that his post-injury pecuniary and nonpecuniary wages are not less than 80% of his pre-injury AWW and that he is not entitled to SIBs. The trial court properly granted summary judgment for Indemnity and denied summary judgment for Daniels on this issue. Issue two is overruled.

Attorney’s Fees and Costs

In issue six, Daniels complains that the trial court erred in denying his motion for attorney’s fees. See Liberty Mut. Ins. Co. v. Montana, 49 S.W.3d 599, 603–04 (Tex.App.-Fort Worth 2001, no pet.). And in issue seven, Daniels complains about the trial court’s assessment of costs against him.

*6 The parties dispute whether Daniels could recover attorney’s fees were he to prevail in this appeal on his claim for SIBs, but because Daniels concedes that he can recover attorney’s fees only if he prevailed on his claim for SIBs—and he has not—we need not resolve that dispute. Because Daniels has not prevailed on his claim for SIBs, he cannot recover attorney’s fees. Montana, 49 S.W.3d at 604. We overrule issue six.

As for trial court costs, Daniels likewise concedes that the taxing of costs against him in the trial court is reversible only if he prevailed on his claim for SIBs. Because we have affirmed the trial court’s decision that Daniels is not entitled to SIBs, we overrule issue seven.

Having overruled all of Daniels’s issues, we affirm the trial court’s judgment.

Chief Justice GRAY concurs without opinion.

Footnotes

1 Indemnity is correct that Daniels’s summary judgment evidence does not show that the payments at issue are actual premiums for health insurance.
2 We also agree with Indemnity that Daniels’s reliance on a DWC appeals decision, Tex. Workers Comp. Comm’n, Appeal No. 060272–s, 2006 WL 1067866 (Tex.Work.Comp. Apr. 6, 2006), is misplaced. There the issue was whether the self-insured employer’s payment of health and dental insurance premiums to the self-insured’s health and dental insurance program, which was administered by a union health and welfare trust, should be calculated in the post-injury AWW as discontinued nonpecuniary wages.

Court of Appeals of Texas,

Waco.

TUTLE & TUTLE TRUCKING, INC., Appellant

v.

EOG RESOURCES, INC., Appellee.

No. 10–11–00062–CV.

|

Nov. 15, 2012.

Attorneys & Firms

*242 Diana L. Faust, Cooper & Scully, Dallas, TX, for appellant.

J.J. Knauff Jr., The Miller Law Firm, Dallas, TX, for appellee.

Before Chief Justice SCOGGINS.

OPINION

REX D. DAVIS, Justice.

In one issue, Appellant Tutle & Tutle Trucking, Inc. complains about a summary judgment granted in favor of Appellee EOG Resources, Inc. In its summary-judgment order, the trial court concluded that, based on language contained in a Master Services Contract (MSC) between Tutle and EOG, Tutle owes duties to defend and indemnify EOG and its contractor, Frac Source Services, Inc., in the underlying personal-injury lawsuit. We will affirm.

I. BACKGROUND

This dispute arose after Archie Henderson, a Tutle employee, sued Tutle and Frac Source to recover damages for injuries that he allegedly sustained on the job.1 Henderson alleged:

On or about September 5, 2007, Plaintiff ARCHIE HENDERSON, an employee of Defendant TUTLE & TUTLE, was, in the course and scope of his employment, assisting FRAC SOURCE personal [sic] unloading sand from a FRAC SOURCE “Sand King” to a truck. The Sand King being used as [sic] the time of the incident was owned, operated, and controlled by Defendant FRAC SOURCE. As Plaintiff was assisting with unloading sand from the Sand King and as FRAC SOURCE personnel operated the Sand King, Plaintiff HENDERSON was struck by a falling conveyor that was part of the Sand King. This incident caused Plaintiff HENDERSON to suffer severe and permanent head, shoulder, and back injuries. Upon information and belief, Defendant FRAC SOURCE had modified or removed a safety device from the Sand King, thus rendering the equipment unreasonably dangerous. In addition, Defendant FRAC SOURCE employees failed to properly utilize the Sand King conveyor’s secondary safety system.

After learning that it was sued in the Henderson suit, Frac Source made a demand on EOG to defend and indemnify it under a separate master service contract between EOG and Frac Source. EOG then made a demand on Tutle for defense and indemnity in the Henderson suit, even though Henderson did not sue EOG.

In asserting that Tutle has a duty to defend and indemnify it, EOG relied on several provisions contained in the MSC. Those relevant provisions are:

*243 6A. CONTRACTOR [Tutle] AGREES TO PROTECT, DEFEND, INDEMNIFY AND HOLD COMPANY [EOG], ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES AND ITS AND THEIR CO–LESSEES, PARTNERS, JOINT VENTURERS, CO–OWNERS, AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES (HEREINAFTER COLLECTIVELY REFERRED TO AS “COMPANY GROUP”) HARMLESS FROM AND AGAINST ALL DAMAGE, LOSS, LIABILITY, CLAIMS, DEMANDS AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER, INCLUDING COSTS OF LITIGATION, ATTORNEYS’ FEES AND REASONABLE EXPENSES IN CONNECTION THEREWITH, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF, INCLUDING BUT NOT LIMITED TO STRICT LIABILITY OR THE UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, OR THE NEGLIGENCE OF ANY PARTY, INCLUDING BUT NOT LIMITED TO THE SOLE OR CONCURRENT NEGLIGENCE OF THE COMPANY GROUP, ARISING IN CONNECTION HEREWITH IN FAVOR OF CONTRACTOR’S AGENTS, INVITEES AND EMPLOYEES, AND CONTRACTOR’S SUBCONTRACTORS AND THEIR AGENTS, INVITEES AND EMPLOYEES ON ACCOUNT OF DAMAGE TO THEIR PROPERTY OR ON ACCOUNT OF BODILY INJURY OR DEATH.

6B. COMPANY AGREES TO PROTECT, DEFEND, INDEMNIFY AND HOLD CONTRACTOR, ITS AGENTS, OFFICERS, DIRECTORS AND EMPLOYEES (HEREINAFTER COLLECTIVELY REFERRED TO AS “CONTRACTOR GROUP”) HARMLESS FROM AND AGAINST ALL DAMAGE, LOSS, LIABILITY, CLAIMS, DEMANDS AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER, INCLUDING COSTS OF LITIGATION, ATTORNEYS’ FEES AND REASONABLE EXPENSES IN CONNECTION THEREWITH, WITHOUT LIMIT AND WITHOUT REGARD TO THE CAUSE OR CAUSES THEREOF, INCLUDING BUT NOT LIMITED TO STRICT LIABILITY OR THE UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, OR THE NEGLIGENCE OF ANY PARTY, INCLUDING BUT NOT LIMITED TO THE SOLE OR CONCURRENT NEGLIGENCE OF THE CONTRACTOR GROUP, ARISING IN CONNECTION HEREWITH IN FAVOR OF COMPANY’S AGENTS, INVITEES AND EMPLOYEES, COMPANY’S CONTRACTORS (OTHER THAN CONTRACTOR) AND THEIR AGENTS, INVITEES AND EMPLOYEES, AND SUCH CONTRACTORS’ SUBCONTRACTORS, OR THEIR AGENTS, INVITEES OR EMPLOYEES ON ACCOUNT OF DAMAGE TO THEIR PROPERTY OR ON ACCOUNT OF BODILY INJURY OR DEATH.

The language contained in paragraphs 6A and 6B of the MSC between EOG and Tutle is set forth in all capital letters and in an apparently slightly larger font than the rest of the contract. Another relevant provision of the MSC—paragraph 6E—was not capitalized or differentiated using an apparently larger font. Paragraph 6E provides:

6E. The terms and provisions of this Paragraph 6 shall have no application to claims or causes of action asserted against Company or Contractor by reason *244 of any agreement of indemnity with a person or entity not a party to this Agreement in those instances where such contractual indemnities are not related to or ancillary to the performance of the work contemplated under the Agreement or are indemnities uncommon to the industry. The terms and provisions of this Paragraph 6 shall expressly apply to claims or causes of action asserted against Company or Contractor by reason of any agreement of indemnity with a person or entity not a party to this Contract where such contractual indemnities are related to or ancillary to the performance of the work contemplated under the Agreement and or Company’s project and are indemnities not uncommon in the industry.

When demanding that Tutle defend and indemnify it in the Henderson suit, EOG relied on paragraphs 6A and 6E of the MSC.

After receiving EOG’s demands for defense and indemnity, Tutle filed a declaratory-judgment action against EOG, Frac Source, and Tutle’s insurer, Carolina Casualty Company, seeking a declaration that Tutle owed no defense or indemnity obligation to EOG in the Henderson suit. In the alternative, Tutle sought a declaration that Tutle’s insurance policy with Carolina covered any indemnity obligation that Tutle owed to EOG as an “insured contract.” EOG counterclaimed for a declaratory judgment that it was entitled to defense and indemnity from Tutle in the Henderson suit based on the MSC and because Henderson was an employee of Tutle who was furnishing services to EOG at the time of the accident. EOG also made a demand upon Tutle for indemnity that EOG owes to Frac Source under the “pass through” provision (paragraph 6E) of the MSC. In addition, EOG sought a declaration that Carolina owed a duty to EOG as its primary liability policy as a matter of law.

EOG moved for partial summary judgment, arguing that: (1) Tutle breached its contract with EOG; (2) Carolina had a contractual obligation to provide a defense and indemnity to EOG and Frac Source with regard to the claims asserted in the Henderson suit; (3) Tutle had a contractual obligation to provide a defense and indemnify EOG and Frac Source with regard to the claims asserted in the Henderson suit; and (4) Tutle and/or Carolina have a contractual obligation “to pay all costs, expenses, and reasonable attorney’s fees incurred by or on behalf of EOG/Frac Source in the defense of the Underlying Lawsuit from at least April 2, 2008 through the present date and for all such future costs, expenses, and attorney’s fees.”

Tutle filed its own motion for summary judgment, asserting that, as a matter of law, it owed no contractual duty to defend or indemnify Frac Source under the MSC because the applicable provisions did not satisfy Texas law’s “fair-notice” requirements—the express-negligence test and conspicuousness. Tutle also contended that it did not owe a duty to defend or indemnify EOG under the MSC for obligations that EOG owed to Frac Source in the Henderson suit.

The trial court denied Tutle’s motion and granted EOG’s motion. In granting EOG’s motion, the trial court specifically declared that Tutle: (1) breached the MSC it had with EOG; (2) has a contractual duty to defend and to indemnify EOG and Frac Source in the underlying Henderson suit; and (3) owes EOG reimbursement for all defense costs, expenses, and indemnity incurred in the Henderson suit. Thereafter, the trial court granted EOG’s motion to sever all claims brought against EOG *245 into a separate cause number, and this appeal followed.

II. STANDARD OF REVIEW

We review the grant or denial of a traditional motion for summary judgment de novo. See Tex. Workers’ Compensation Comm’n v. Patient Advocates of Tex., 136 S.W.3d 643, 648 (Tex.2004).

III. THE FAIR–NOTICE DOCTRINE

In its sole issue, Tutle contends that the trial court erred in granting summary judgment in favor of EOG because the provisions in the MSC that EOG relies on do not meet the fair-notice requirements established by the Texas Supreme Court for interpreting the validity and enforceability of a contractual-indemnity obligation. And, because the MSC provisions allegedly do not meet the fair-notice requirements, Tutle asserts that the trial court erred in concluding that Tutle breached the contract and owes EOG and Frac Source duties to defend and indemnify them in the underlying Henderson suit. EOG counters that the provisions meet the fair-notice requirements and that Tutle judicially admitted that they did in the trial court.

Indemnity provisions are valid and enforceable if they satisfy two fair-notice requirements. Dresser, 853 S.W.2d at 508 (noting that, under express-negligence doctrine, a party’s intent to be released from all liability caused by its own future negligence must be expressed in unambiguous terms within contract’s four corners).

The other requirement, conspicuousness, requires that something appear on the face of the contract to attract the attention of the person looking at it. Dresser, 853 S.W.2d at 509.

Indemnity agreements are construed under the normal rules of contract construction. Id.

A. Conspicuousness

On appeal, Tutle complains that paragraph 6—the section of the MSC at issue in this case—is not conspicuous as a matter of law. To analyze this complaint, we must examine the entire MSC. It provides *246 that Tutle was a contractor on EOG’s project. Paragraphs 6A and 6B, as shown above, outline the parties’ duties to defend and indemnify “AGAINST ALL DAMAGE, LOSS, LIABILITY, CLAIMS, DEMANDS AND CAUSES OF ACTION OF EVERY KIND AND CHARACTER, INCLUDING COSTS OF LITIGATION, ATTORNEYS’ FEES AND REASONABLE EXPENSES IN CONNECTION THEREWITH ....” Compared to the remainder of the MSC, the language in paragraphs 6A and 6B is capitalized and appears to be a larger font size. Paragraph 6, however, contains three additional sections that further clarify the indemnity provisions. In demanding that Tutle defend and indemnify EOG regarding Frac Source’s alleged liability, EOG relies heavily on paragraph 6E. This paragraph is not capitalized, and the font size is similar to the remainder of the MSC, though the numbering for it—6E—and its location in the MSC indicate that its purpose is to clarify the duties outlined in paragraph 6. Tutle admits that paragraphs 6A and 6B are conspicuous, but it argues that paragraph 6E, the “pass through” provision, is not conspicuous.2

Although the Business and Commerce Code defines “conspicuous” to include language in which both the heading and text are in larger or contrasting type, it does not require both the heading and the text to be in larger or contrasting type. See Sydlik v. REEIII, Inc., 195 S.W.3d 329, 332–33 (Tex.App.-Houston [14th Dist.] 2006, no pet.).

We conclude that paragraph 6E is sufficiently conspicuous to provide fair notice. The numbering for the “pass through” provision is capitalized and is different from other provisions in the MSC. And, perhaps more importantly, the location of paragraph 6E, being numerically linked to paragraphs 6A and 6B, is such that a reasonable person ought to have noticed it. Paragraph 6E is not buried within the contract or located away from paragraphs 6A and 6B, which establish the defense and indemnification duties. In fact, paragraph 6E is on the same page as the last couple of lines of paragraph 6B, which, as stated earlier, is written in all-capital letters and in apparently slightly larger font. It is not the case that the complained-of language appeared in small, light type on the back of a form and was surrounded by unrelated terms. See, e.g., Enserch Corp. v. Parker, 794 S.W.2d 2, 9 (Tex.1990) (concluding that indemnity provision was sufficiently conspicuous to afford fair notice of its existence when entire contract appeared on one page and language was on front side of contract, not hidden under separate heading or surrounded by unrelated terms). Accordingly, we reject Tutle’s assertion that paragraphs 6A–6E do not satisfy the conspicuousness requirement.

B. The Express–Negligence Doctrine

Tutle also argues that paragraphs 6A and 6E fail to meet the express-negligence test and thus do not obligate Tutle to indemnify EOG for EOG’s contractual obligation to indemnify Frac Source. Specifically, Tutle asserts that paragraph 6E “is vague, ambiguous, and if enforced, violates the express[-]negligence test where there is nothing within [p]aragraph 6E that indicates that Frac Source is seeking to be indemnified by Tutle from the consequences of its own negligence.” EOG counters that the express-negligence doctrine does not apply when an indemnitee does not seek indemnity for its own negligence and that the “pass through” indemnity provision in paragraph 6E is neither vague nor ambiguous.

As stated earlier, the express-negligence test states that if a party intends to be released from its own future negligence, it must express that intent in clear, unambiguous terms within the four corners of the contract. Atl. Richfield Co. v. Petroleum Personnel, Inc., 768 S.W.2d 724, 726 (Tex.1989)).

Several courts, however, have stated that the express-negligence doctrine does not apply when an indemnitee, such as EOG here, does not seek indemnity for its own negligence. See Transcon. Gas Pipeline Corp. v. Texaco, Inc., 35 S.W.3d 658, 669 (Tex.App.-Houston [1st Dist.] 2000, pet. denied).3 In this *248 case, EOG seeks indemnity from Tutle for Frac Source’s alleged negligence. Thus, EOG argues that the express-negligence doctrine does not apply in this case.

Tutle responds that paragraph 6E constitutes an extraordinary transfer of risk to which the express-negligence doctrine applies. See, e.g., Green Int’l v. Solis, 951 S.W.2d 384, 386 (Tex.1997) (“We held that such extraordinary risk-shifting clauses must meet certain fair notice requirements.”). Both parties acknowledge that there is scant Texas case law addressing the fair-notice requirements as it relates to a “pass through” provision such as the one in this case. Nevertheless, assuming that Tutle is correct, we do not believe that the language of the provision is vague and ambiguous as to violate the express-negligence doctrine.

In arguing that paragraph 6E is neither vague nor ambiguous, EOG relies heavily on Badlands Power Fuels are substantially similar.

EOG, the owner and operator of the Zacher Oil Well in Mountrail County, North Dakota, entered into identical master service contracts with its contractors, Petroleum Experience, B.O.S. Roustabout & Backhoe Service, Inc., and Badlands Power Fuels. Id. at 1155.

*249 Thus, at least one court has approved the “pass through” provision at issue. See id. Furthermore, we do not believe that the “pass through” indemnity provision of the MSC was required to have the specificity that Tutle suggests or else run the risk of being deemed vague and ambiguous. Tutle and EOG, both sophisticated business entities, entered into a contract in which Tutle agreed to defend and indemnify EOG under paragraph 6E, which required the duties of defense and indemnification with regard to non-parties to the MSC for claims or causes of action “related to or ancillary to the performance of the work contemplated under the Agreement and[/]or Company’s project and are indemnities not uncommon in the industry.” We conclude that the language of paragraph 6E is neither vague nor ambiguous.

As a final argument, Tutle asserts that EOG did not tender sufficient evidence demonstrating that the MSC is applicable to the facts of the Henderson suit. In particular, Tutle contends that the record contains no evidence indicating that Henderson was injured while “transporting dry bulk commodity,” as stated in the MSC. For several reasons, we disagree with Tutle’s interpretation.

First, the MSC states in paragraph 1:

This Agreement shall control and govern all work performed by Contractor for the Company, under subsequent verbal and/or regular work orders, and any agreements or stipulations in any such work order, delivery ticket, or other instrument used by Contractor not in conformity with the terms and provisions hereof shall be null and void.

Tutle judicially admitted in its summary-judgment motion that Henderson was injured while working for Tutle on EOG’s project.

Second, in making its argument that the MSC does not apply to Henderson’s injuries, Tutle relies on the recital in the MSC stating that Tutle is in the business of “transporting dry bulk commodity.” Texas courts have held that recitals in a contract will not control the operative clauses thereof unless the latter are ambiguous. See Neece v. A.A.A. Realty Co., 159 Tex. 403, 322 S.W.2d 597, 600 (1959)). Based on the record, we conclude that Henderson’s injuries are within the scope of the MSC.

Based on the foregoing, we conclude that the trial court did not err in declaring that the MSC covers the injuries sustained by Henderson. Furthermore, we hold that the MSC satisfies the fair-notice doctrine. The trial court did not err in granting EOG’s summary-judgment motion. Accordingly, we overrule Tutle’s sole issue and affirm the judgment of the trial court.

Chief Justice GRAY dissenting.

TOM GRAY, Chief Justice, dissenting.

After studying this several different times, I have concluded that, based on *250 what is briefed, I would have to reverse due to lack of evidence to conclusively establish the second predicate fact, that the indemnity agreement is common to the industry (which may include which industry, oil and gas, or sand and gravel). The only basis the Court relies upon to support this factual determination is that the provision appears in one other reported case, a federal case from North Dakota (see Maj. Op. footnote 4). But that case involved the same party, EOG. Contrary to the Court’s conclusion, I think the fact that this type provision shows up nationally in only one other case and that case involved the same company is a clear indication the provision is not widely used in the industry.

I also think EOG, and the Court, has misapplied the concept of a judicial admission to the other predicate fact needed for the concept to apply. A statement in a pleading is an admission, but it can be controverted. It is a binding judicial admission only if it is a factual allegation in a live pleading and there is no unobjected-to evidence contrary to the allegation in the summary judgment record.

In any event, it appears that conflicting evidence may have been offered on the issue of whether the employee was injured in the process of transporting bulk dry material.

For either of these reasons, the result would at least be a reverse and remand for fact development.

But I have some issue with paragraph 6E, the pass through provision, as well. I think the issue here is very wide open, especially in Texas. If 6E has to meet the Express Negligence or the fair notice doctrine—it fails; particularly since the pass through provision EOG is relying upon is buried at the end of a provision that does nothing to highlight it and addresses another topic as well.

Further it seems to be a very unusual provision in that it essentially provides “you agree to indemnify me for anything I have agreed with another contractor for which to indemnify them.” You probably cannot bury another company’s agreement to indemnify for an act of negligence much deeper than that.

But I am not at all sure that the doctrine applies, because it is an indemnity of contractual indemnity, which may include a negligence claim but at the pass through level is only a contract claim.

This case also seems to potentially have some huge policy implications in it that I do not understand. Specifically, how workers compensation coverage and limits on recovery will be implicated, if at all. Does this now pit a workers compensation carrier against a general liability carrier?

For the foregoing reasons, I respectfully dissent to the judgment of the Court to the extent it does not reverse the trial court’s judgment and remand the proceeding to the trial court for further development.1

Footnotes

1

In its summary-judgment motion, Tutle acknowledged that Henderson works for Tutle and that the injuries were suffered while working on the project as an employee for Tutle, though the project was supervised by EOG.

2

EOG asserts that Tutle waived its conspicuousness argument with respect to paragraph 6E. We disagree. A review of Tutle’s motion for summary judgment shows that Tutle argued that paragraph is inconspicuous because the font is not bolded, capitalized, or otherwise written in such a way “that would capture the attention of a reasonable person.”

3

In Transcontinental Gas Pipeline Corp. v. Texaco, Inc., the First Court of Appeals noted the following with respect to the express-negligence doctrine:

Transco asks this Court to expand the express[-]negligence doctrine to cover any indemnity provision that is ambiguous, despite the obvious refusal of our sister courts to expand the doctrine. The Texas Supreme Court declined to extend the express[-]negligence doctrine to an insurance-shifting provision. Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 387 (Tex.1997).

35 S.W.3d 658, 669 (Tex.App.-Houston [1st Dist.] 2000, pet. denied) (internal footnotes omitted).

4

We recognize that the federal court in id.

1

Recognizing that I have not garnered a second vote for my position, I have provided this quite informal dissent rather than delay the ultimate disposition of this proceeding. See 156 S.W.3d 574 (Tex.2005).

Top