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Court of Appeals of Texas, Eastland.

PEDRO DE LA ROSA AND ANGELINA DE LA ROSA, Appellants

v.

BASIC ENERGY SERVICES, L.P., BY AND THROUGH ITS GENERAL PARTNER, BASIC ENERGY SERVICES GP, LLC, Appellee

No. 11-19-00123-CV

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filed April 8, 2021

On Appeal from the 441st District Court

Midland County, Texas

Trial Court Cause No. CV52579

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

MEMORANDUM OPINION

W. STACY TROTTER JUSTICE

Opinion filed April 8, 2021

Appellants, Pedro and Angelina De La Rosa, appeal the trial court’s order granting Appellee’s, Basic Energy Services, L.P., plea to the jurisdiction. Because the trial court possessed subject-matter jurisdiction over Appellants’ pleaded claims, we reverse and remand.

I. Factual Background

The facts set forth here, with respect to the incidents that gave rise to this suit, were derived from the allegations in Appellants’ operative pleadings filed in this cause. While employed by Appellee as a tanker-truck driver, Pedro De La Rosa was severely injured in a rollover accident as he was transporting water from an oil well operated by Endeavor Energy Resources to a disposal site. The rollover occurred in the early morning hours on an unpaved dirt road near Mentone, Texas. Pedro had worked throughout the night and was transporting his third consecutive load of water. It was still dark outside, and Pedro was driving slowly because the road, for the approximately fifteen miles leading to and from the well, was unpaved and “poorly-maintained.” A large animal ran onto the road as Pedro was maneuvering the tanker truck around a large pothole; the tanker truck he was operating then rolled over as he attempted to avoid the animal.

Because of the extent of Pedro’s injuries, he was transported by helicopter to a hospital in Odessa. Freddie Garcia, the “Area Superintendent” of Appellee’s office in Pecos, introduced himself to Pedro at the hospital, and at some point, Pedro heard Garcia direct the attending doctor not to provide certain medical care to Pedro “in an apparent effort to minimize the records of Pedro’s injuries.” Specifically, Pedro heard the attending doctor state that he needed to insert stitches on Pedro’s eye cavity; Pedro then heard Garcia instruct the doctor not to do so because “Pedro [was] fine.” Later, Pedro applied for and received workers’ compensation benefits to pay his incurred medical expenses; he also received income benefits.

Appellants subsequently filed suit against Appellee and others. As to Appellee, Appellants alleged that Pedro’s injuries from the rollover were intentionally caused (1) by Appellee’s failure to provide a safe place to work and (2) by Appellee’s knowledge that its drivers were fatigued and its requirement that the drivers nevertheless drive excessive hours with minimal rest. On behalf of Pedro, Appellants further alleged that Appellee’s subsequent conduct during Pedro’s post-accident treatment at the hospital in Odessa caused Pedro to sustain independent injuries because Garcia, as Appellee’s agent, pressured and coerced the medical staff to withhold medical care from Pedro and to release him prematurely. On behalf of Angelina, Appellants also pleaded a claim against Appellee for intentional loss of consortium.

In its third amended answer, Appellee included a plea to the jurisdiction in which it asserted that Appellants’ claims were barred by the Texas Workers’ Compensation Act (the Act) and the affirmative defense of election of remedies. Appellants filed a motion to strike Appellee’s plea. After a hearing, the trial court denied Appellants’ motion to strike and granted Appellee’s plea to the jurisdiction.

In their sole issue on appeal, Appellants contend that the trial court erred when it granted Appellee’s plea.1 We agree.

II. Standard of Review

Before a court may dispose of a case, it is essential that the court possess subject-matter jurisdiction. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). A plea to the jurisdiction is a dilatory plea and a proper method by which to challenge a trial court’s subject-matter jurisdiction. Id. at 554. Whether a trial court has subject-matter jurisdiction over a case is a question of law that we review de novo. Harris Cty. v. Annab, 547 S.W.3d 609, 612 (Tex. 2018) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004)); Ector Cty. v. Breedlove, 168 S.W.3d 864, 865 (Tex. App.—Eastland 2004, no pet.).

The purpose of a plea to the jurisdiction is to defeat a pleaded cause of action without reaching the merits. Blue, 34 S.W.3d at 554. A plea to the jurisdiction may challenge the pleadings, the existence of jurisdictional facts, or both. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018); City of Merkel v. Copeland, 561 S.W.3d 720, 723 (Tex. App.—Eastland 2018, pet. denied). When the plea challenges the pleadings, as in the case before us, we determine whether the pleader has alleged facts that affirmatively demonstrate the trial court’s subject-matter jurisdiction to hear the case. Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 160 (Tex. 2016) (citing City of El Paso v. Heinrich, 284 S.W.3d 366, 378 (Tex. 2009)). Therefore, our review requires that we accept as true all factual allegations in the pleadings, that we examine the pleader’s intent, and that we construe the pleadings liberally in the pleader’s favor. Id.; Miranda, 133 S.W.3d at 226; Cty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002); Tex. Mun. League Intergovernmental Risk Pool v. City of Abilene, 551 S.W.3d 337, 342–43 (Tex. App.—Eastland 2018, pet. dism’d).

III. Analysis

Appellants assert that the trial court erred when it granted Appellee’s plea because they had pleaded sufficient facts to affirmatively show that the trial court had subject-matter jurisdiction over their claims. Appellee maintains that the trial court properly granted its plea because (1) the Act provides the exclusive remedy for Appellants’ claims, (2) Appellants failed to exhaust their administrative remedies, and (3) Appellants elected to receive workers’ compensation benefits.2 We will address each ground raised by Appellee upon which the trial court could have granted the plea.

A. Exclusive Remedy

The Act provides remedies for the prompt payment of medical expenses and lost wages for covered employees who sustain work-related injuries, without the injured employee’s needing to prove liability under a common-law tort theory. TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 72 (Tex. 2016) (citing HCBeck, Ltd. v. Rice, 284 S.W.3d 349, 350 (Tex. 2009)). In fact, in exchange for the guarantee of the payment of workers’ compensation benefits to the injured employee, the Act prohibits an injured employee from seeking common law remedies from his employer. Id.; see TEX. LAB. CODE ANN. § 408.001(a) (West 2015). Under its exclusive-remedy provision, the Act provides an employer that subscribes to workers’ compensation insurance immunity from common-law negligence claims that may be brought by its employees. LAB. § 408.001(a); Mo-Vac Serv. Co. v. Escobedo, 603 S.W.3d 119, 120 (Tex. 2020).

However, the Act’s exclusive-remedy provision does not prohibit an injured employee from pursuing intentional-injury claims against his employer. Escobedo, 603 S.W.3d at 124–25 (noting that the legislature has never codified or rejected Middleton’s intentional-injury exception and stating: “Notwithstanding the breadth of some of its terms, [the Act’s] evident purpose was to confine its operation to only accidental injuries, and its scope is to be so limited.” (quoting Middleton v. Tex. Power & Light Co., 185 S.W. 556, 560 (Tex. 1916))); Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985) (“The Texas Workers’ Compensation Act is the exclusive remedy for work-related injuries with the exception of intentional injury.”). Under Middleton’s intentional-injury exception, an injured employee may pursue common law remedies for the intentional torts committed by his employer if he can establish the employer’s specific intent to inflict injury. Escobedo, 603 S.W.3d at 125; Reed Tool, 689 S.W.2d at 406; see Berkel & Co. Contractors, Inc. v. Lee, 612 S.W.3d 280, 285 (Tex. 2020). As such, to prevail on an intentional-injury claim, the injured employee must establish that his employer intended for, or believed that, its actions were substantially certain to result in injury to the employee. Berkel, 612 S.W.3d at 285; Escobedo, 603 S.W.3d at 125; Reed Tool, 689 S.W.2d at 406.

Because the present case is before us on a plea to the jurisdiction, we look to Appellants’ pleadings and determine only whether sufficient facts were alleged to affirmatively bring their claims within the trial court’s subject-matter jurisdiction. In their first amended petition, the “operative pleading” below, Appellants alleged, with respect to the rollover incident, that “Basic Energy knew that it was subjecting its truck drivers to fatigue by virtue of requiring them to drive excessive hours and Basic Energy believed that [these] injury-producing events were substantially certain to result therefrom, especially when traversing poorly-maintained dirt roads such as the roadway at issue.” Regarding the post-rollover incidents at the hospital, Appellants alleged that Basic Energy, through its agent (Garcia), pressured hospital staff to withhold medical care from Pedro and that “with respect to said withholding and premature release, Basic Energy desired at all relevant times to cause the consequences (including the injuries to Pedro and Angie ...), or alternatively, Basic Energy believed at all relevant times that said consequences are [sic] substantially certain to result from said withholding and premature release.”

Because Appellants’ operative pleading alleged that Appellee believed that its conduct was substantially certain to result in Pedro’s injuries and Angelina’s loss of consortium, we find that Appellants’ pleaded claims fall within the purview of the intentional-injury exception to the Act’s exclusive-remedy provision. Therefore, Appellants’ factual allegations affirmatively demonstrate that the trial court has subject-matter jurisdiction over these claims.

B. Failure to Exhaust

Appellee also asserts that the Act deprives the trial court of subject-matter jurisdiction over Appellants’ pleaded claim with respect to the post-rollover events that occurred at the hospital in Odessa. Specifically, Appellee characterizes this pleaded claim as a dispute over medical benefits and argues that Appellants’ post-rollover claims are barred by the Act because Appellants failed to comply with the Labor Code’s medical dispute resolution procedures and exhaust their administrative remedies. See LAB. § 413.031(k)–(k-1) (West Supp. 2020). Appellee’s reliance on this statute is misplaced.

The Labor Code provision advanced by Appellee is only applicable to medical benefit disputes and medical fee disputes. See id. In this case, Appellants have alleged neither. Therefore, the Labor Code’s medical dispute resolution procedures and exhaustion requirements would not be triggered.

Instead, Appellants alleged that Garcia’s undue influence, and the pressure he exerted on hospital personnel to withhold medical care for Pedro, ultimately resulted in further injury to Pedro. Appellants further alleged that Garcia’s post-rollover conduct was “not job-related and [was] separate from the event for which a workers[’] compensation claim was filed and the[se] [post-rollover] acts produced an independent injury separate from the injuries for which any workers[’] compensation claim was filed.” Appellants pleaded an intentional-injury claim, alleging that Garcia’s post-rollover affirmative conduct resulted in an independent injury to Pedro. Therefore, Appellants’ factual allegations affirmatively demonstrate that the trial court has subject-matter jurisdiction over this claim.

C. Election of Remedies

Finally, although the Act’s exclusive-remedy provision does not exempt intentional-injury claims, the Act also does not expressly exclude workers’ compensation coverage for injuries that result from an employer’s intentional tort. Medina v. Herrera, 927 S.W.2d 597, 600 (Tex. 1996). In fact, an injured employee’s receipt of workers’ compensation benefits and his pursuit of common law damages from his employer for the same intentional injury are mutually exclusive remedies. Id. Here, Appellee argues that Pedro’s receipt of workers’ compensation benefits divests the trial court of subject-matter jurisdiction over Appellants’ present claims. Appellee submits that Appellants’ intentional tort claims are barred as a matter of law because Pedro elected to file for and receive workers’ compensation benefits; therefore, Pedro’s “election” deprives the trial court of subject-matter jurisdiction over Appellants’ claims. We disagree.

“The doctrine of ‘election of remedies’ is an affirmative defense that, under certain circumstances, bars a person from pursuing two inconsistent remedies.” Id. (citing Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850–52 (Tex. 1980)). However, whether Appellee can establish this affirmative defense to Appellants’ claims does not bear on the trial court’s subject-matter jurisdiction over the case.3 We additionally note that, under Reed Tool, an injured employee’s acceptance of workers’ compensation benefits does not bar an employee-spouse’s derivative claim against the employer for intentional impairment of consortium because the employee-spouse’s own claim for intentional injury is not excluded by the Act. Reed Tool Co. v. Copelin, 610 S.W.2d 736, 740 (Tex. 1980) (holding that wife’s derivative claim of negligent impairment of consortium was barred by husband’s workers’ compensation agreement but that her action for intentional impairment of consortium was not); see also Reed Tool, 689 S.W.2d at 407–08 (holding that summary judgment in wife’s action for intentional impairment of consortium was proper because wife could not establish employer’s requisite intent to injure).

Here, because Appellants’ claims are not within the Texas Department of Insurance’s exclusive jurisdiction and because Appellee’s election of remedies defense is not an impediment to the trial court’s exercise of subject-matter jurisdiction over the case, we hold that the trial court’s determination that it lacked subject-matter jurisdiction over Appellants’ claims and its order granting Appellee’s plea were erroneous. Accordingly, we sustain Appellants’ sole issue on appeal.

IV. This Court’s Ruling

Appellants pleaded sufficient facts to affirmatively show that the trial court has subject-matter jurisdiction over their asserted claims. Therefore, we reverse the order of the trial court and remand the cause to the trial court for further proceedings.

Footnotes

1

Appellants argue that affirmative defenses may not be raised by a plea to the jurisdiction. Although the Texas Supreme Court and some of our sister courts have generally adopted this premise, see State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 361 n.22 (Tex. App.—Fort Worth 2018, pet. denied); Dallas Cty. v. Cedar Springs Invs. L.L.C., 375 S.W.3d 317, 321 (Tex. App. —Dallas 2012, no pet.); Univ. of Tex. Med. Branch at Galveston v. Barrett, 112 S.W.3d 815, 817 (Tex. App.—Houston [14th Dist.] 2003), aff’d, 159 S.W.3d 631 (Tex. 2005); Martinez v. Val Verde Cty. Hosp. Dist., 110 S.W.3d 480, 484–85 (Tex. App.—San Antonio 2003), aff’d, 140 S.W.3d 370 (Tex. 2004); Tex. Dep’t of Mental Health v. Olofsson, 59 S.W.3d 831, 833 (Tex. App.—Austin 2001, pet. dism’d); Anders v. Weslaco Indep. Sch. Dist., 960 S.W.2d 289, 292 (Tex. App.—Corpus Christi–Edinburg 1997, no pet.), the application of this principle is not necessary to our disposition of Appellants’ issue on appeal.

2

We note that Appellee also filed a motion for summary judgment challenging the merits of Appellants’ pleaded claims on the same grounds; however, this motion was never presented to the trial court for a ruling.

3

In their briefs, the parties argue whether Appellee has established the elements of its election-of-remedies defense. Because the only issue before us is whether the trial court has subject-matter jurisdiction over the case, our review on appeal does not consider that merits determination.

Court of Appeals of Texas, Eastland.

IN RE SENTRY INSURANCE A MUTUAL COMPANY

No. 11-20-00240-CV, No. 11-20-00241-CV

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Opinion filed November 6, 2020

Original Mandamus Proceeding

Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.3

Willson, J., not participating.

MEMORANDUM OPINION

KEITH STRETCHER JUSTICE

*1 Relator, Sentry Insurance a Mutual Company (Sentry), filed these original petitions for writ of mandamus in which it requests that we instruct the Honorable Glen Harrison, Presiding Judge of the 32nd District Court of Nolan County, to dismiss for lack of jurisdiction Real Party in Interest, Donald Bristow’s counterclaims against Sentry and third-party claims against Judson Francis, Jr., a Professional Corporation (the Corporation), in Cause Nos. DO-92-17,178 and 19,940. We conditionally grant the petitions for writ of mandamus as to Bristow’s claims based on Sentry’s alleged delayed payment of, and failure to pay, medical expenses. We deny the petitions for writ of mandamus in all other respects.

Background

On September 17, 1990, Bristow was rendered a paraplegic from an accidental injury suffered in the course and scope of his employment for Nunn Manufacturing Company. Sentry was the workers’ compensation carrier for Nunn. Bristow’s injury occurred before January 1, 1991, and his claim for workers’ compensation benefits was determined based on the law in effect at the time of the injury. See Act of Dec. 11, 1989, 71st Leg., 2nd C.S., ch. 1, § 17.18(a), (c), 1989 Tex. Gen. Laws 1, 122.

Bristow filed Cause No. DO-92-17,178 against Sentry in the 32nd District Court.1 Sentry and Bristow settled the lawsuit on March 31, 1993. Pursuant to the parties’ Compromise Settlement Agreement (CSA), Sentry agreed to pay Bristow (1) $30,000 on his claim that he was entitled to a van, (2) $30,000 every six years for the rest of his life in order to replace the van, and (3) $125,000 for the cost of home health care that Bristow had received before March 31, 1993. The parties also agreed that Sentry would pay a monthly sum of $3,650 for future home health care to “Bristow and his attorney” and that the amount of Sentry’s monthly obligation would not “increase or decrease” from $3,650. Sentry was required to pay for home health care “only for so long as Bristow [was] at his home residence and not absent in a hospital or other health care facility.” Finally, Sentry’s obligation to make the monthly home health care payments commenced on April 3, 1993, and was required to be paid “monthly, thereafter, as incurred, and by the 3rd day of each month” to Bristow and his attorney, Francis & Cross, P.C., at the attorney’s address.

The parties agreed that, based on Bristow’s physical condition, Sentry could contest that he no longer needed home health care. Sentry was required to provide written notice to Bristow and his attorneys that it contended that Bristow’s physical and mental condition no longer reasonably required home health care. After Sentry gave this notice, any dispute as to home health care would be submitted to the trial court.

The trial court approved the CSA and incorporated it into a final judgment on April 6, 1993. The trial court dismissed with prejudice all claims asserted by Bristow or that could have been asserted by Bristow prior to March 22, 1993.

*2 On January 12, 2018, and January 16, 2018, respectively, Sentry filed a motion to terminate home health care services and an amended motion to terminate home health care services. Sentry requested that the trial court order that Bristow’s physical and mental condition did not reasonably require home health care and that Sentry had no further obligations under the CSA to make the monthly payments of $3,650.

Sentry also filed a motion to abate home health care payments. Sentry alleged that, pursuant to the CSA, it was required to pay Bristow $3,650 per month for home health care, as incurred; that it had made the monthly payments; and that, since 2014, Bristow had incurred only a total of $7,686.75 for home health care costs. Sentry alleged that it was entitled to a credit or offset against future payments for home health care costs of at least $167,513.25 and requested that the trial court abate Sentry’s obligation to make the monthly home health care payments until the actual amount of the credit or offset could be determined.

On June 8, 2018, Judge Harrison denied Sentry’s motion to abate. Judge Harrison specifically found that the CSA was still in effect and required Sentry to pay $3,650 per month to Bristow for as long as he incurred home health care expenses and that Bristow continued to use, and incur expenses for, home health care. The record does not reflect that Judge Harrison ruled on Sentry’s amended motion to terminate home health care services.

On August 13, 2018, Sentry filed Cause No. 19,940 and requested a declaration that it was entitled to a credit or offset of at least $167,513.25 against any future amounts that it might owe Bristow for home health care pursuant to the CSA. Judge Harrison subsequently consolidated Cause No. 19,940 with Cause No. DO-92-17,178.

Bristow sent three letters to the Texas Department of Insurance – Workers’ Compensation Division (the Division) on February 14, February 21, and February 22, 2019.2 Bristow provided the Division with a copy of Sentry’s petition for declaratory judgment and requested a prehearing conference (1) on a dispute over the CSA and as to attorney’s fees, (2) on Sentry’s failure or refusal to replace dressing for a wound care vac machine, and (3) on medical benefits for nursing care services, wound care, and home health care beginning April 1, 1993, to the present and continuing into the future.

The Division denied Bristow’s request for a prehearing conference on the ground that, after a final award or a court judgment, it has jurisdiction only to issue successive awards regarding liability on medical disputes for the cost or expense of medical equipment or services actually furnished to and received by the employee. According to the Division, “any dispute as to home health care must be submitted to the court in accordance with the terms of” the CSA. Finally, the Division indicated that, if Bristow wanted to pursue an award on unpaid bills for medical services received by him and denied by Sentry, he could submit a written request to the Division for a formal hearing to adjudicate the unpaid, disputed medical bills.

*3 Bristow filed a third-party petition against the Corporation. Bristow alleged that, pursuant to the law in effect at the time of his injury, his attorney, Judson Francis, Jr., was to receive attorney’s fees in connection with the CSA. Sentry sent the monthly checks to Francis, and Francis would disburse funds to Bristow. After Francis died in 1996, his surviving spouse, Bettie Francis, became the president and registered agent for the Corporation. Although Bettie is not an attorney, the Corporation continued to deduct attorney’s fees from the monthly payments from Sentry. At some point after Sentry filed the motion to abate, the Corporation ceased making payments to Bristow. Bristow asserted that the payments of attorney’s fees to a nonlawyer and a nonlawyer entity were illegal and against public policy.

On November 25, 2019, Bristow filed a third amended answer and counterclaim against Sentry in which he requested an accounting of the attorney’s fees paid to the Corporation. Bristow also alleged that Sentry (1) violated the Texas Deceptive Trade Practices Act (the DTPA) because it engaged in a course of conduct meant to avoid its liability under the CSA; (2) breached the duty of good faith and fair dealing when it paid attorney’s fees to a deceased attorney, made multiple attempts to avoid payment of benefits to Bristow, and failed to pay benefits timely; (3) violated the duties of good faith and fair dealing and the duty to engage in fair settlement practices imposed by Chapter 541 of the Texas Insurance Code; and (4) committed fraud based on representations when it signed the CSA that certain benefits would be paid to Bristow and then attempted to “vitiate the agreement.”

Bristow filed a fifth amended answer and counterclaim on September 25, 2020, in which he expanded his common law and statutory claims. As to his claim that Sentry violated the DTPA, Bristow also alleged that Sentry attempted to avoid its obligations under the CSA even though it had received medical advice and opinions that were “in favor of Bristow and adverse to Sentry.” Under his bad faith claim, Bristow added allegations that, since 2015, Sentry had engaged in a “pattern of conduct” to delay and fail to pay for medical expenses for the treatment of ulcers that Bristow developed as a result of his confinement to a wheelchair. Bristow alleged that the purpose of Sentry’s conduct was to cause the ulcers to become infected so that Bristow would be hospitalized and Sentry would not be required to pay for home health care. Bristow also expanded his fraud claim to allege that Sentry “conducted a fraudulent scheme by deception and omission of material facts” when it failed to disclose to Bristow that it had obtained medical opinions that were adverse to its position that Bristow no longer needed home health care. Finally, Bristow added a claim for enforcement of the CSA on the grounds (1) that Sentry had denied payment of reasonable and necessary medical expenses and (2) that he was in continuing need of home health care.

Sentry filed a plea to the jurisdiction. Sentry asserted that the Division had exclusive jurisdiction over all compensability and medical disputes in the workers’ compensation context and that a claimant’s failure to secure a determination by the Division that benefits were due precluded a suit for those benefits as well as for all damages that resulted from a denial of those benefits. Sentry specifically argued that Bristow had not obtained an award in his favor from the Division on any claim asserted against Sentry; that Bristow had failed to give notice of his intent not to abide by the Division’s decision that it did not have jurisdiction over any dispute about home health care and failed to submit his claims that Sentry delayed payment of, or failed to pay, medical expenses to the Division; and that, based on the Texas Supreme Court’s decision in Texas Mutual Insurance Co. v. Ruttiger, 381 S.W.3d 430 (Tex. 2012), Bristow was precluded from asserting any claim for common law or statutory bad faith.

*4 Sentry also filed a nonsuit of its petition for declaratory judgment. Sentry stated that Judge Harrison did not have jurisdiction over the request for a credit or offset because Sentry had not presented the claim to the Division. Sentry indicated that it intended to “fully exhaust the required remedies with the Division” and then, if necessary, appeal the Division’s final ruling.

Judge Harrison denied Sentry’s plea to the jurisdiction. Sentry filed these petitions for writ of mandamus in which it requests that we direct Judge Harrison to dismiss for lack of subject-matter jurisdiction Bristow’s counterclaims against Sentry and third-party claims against the Corporation. Sentry specifically argues that Judge Harrison does not have jurisdiction over any of Bristow’s claims because he did not exhaust his administrative remedies and does not have jurisdiction over Bristow’s common law and statutory bad faith claims because those claims are no longer viable after Ruttiger.

Analysis

Mandamus is an extraordinary remedy and is warranted only when the trial court clearly abused its discretion and there is no adequate remedy by appeal. In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding); In re Murrin Bros. 1885, Ltd., 603 S.W.3d 53, 56 (Tex. 2019) (orig. proceeding). The relator bears the burden to prove both of these requirements. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding).

A trial court abuses its discretion when its ruling is arbitrary and unreasonable or is made without regard for guiding legal principles or supporting evidence. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). “Similarly, a trial court abuses its discretion when it fails to analyze or apply the law correctly.” Id.; see also In re Geomet Recycling LLC, 578 S.W.3d 82, 91 (Tex. 2019) (orig. proceeding). “A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts.” In re Geomet Recycling, 578 S.W.3d at 91 (quoting Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding)).

Under the law in effect at the time of Bristow’s injury, “[a]ll questions” arising under the workers’ compensation act generally are required to be determined by the Division. Act of May 23, 1977, 65th Leg., R.S., ch. 412, § 1, 1977 Tex. Gen. Laws 1113, 1113. “After the first such final award or judgment,” the Division has continuing jurisdiction “to render successive awards to determine the liability of the [carrier] for the cost or expense” of medical services “actually furnished to and received” by the employee not more than six months prior to the date of the successive award. Id. at 1114.

A party is required to give notice within twenty days of the Division’s final ruling or decision that he will not abide by the ruling or decision. Id. at 1113. The party must then file suit within twenty days of when he filed the notice not to abide. Id. If the party fails to timely file suit, the Division’s final ruling or decision is binding on all parties to the ruling or decision. Id. at 1114.

When, as in this case, the suit is settled and the settlement is approved by the court in an agreed judgment, any dispute that subsequently arises over “the payment of medical, hospital, nursing, chiropractic or podiatry services or aids or treatment, or for medicines or prosthetic appliances” must be “first presented” to the Division. Act of May 20, 1983, 68th Leg., R.S., ch. 501, § 1, 1983 Tex. Gen. Laws. 2934, 2934. A dispute arises when a “written refusal of payment” is filed with the Division. Id. However, the Division does not have jurisdiction “to rescind or set aside” an agreed judgment approved by the court. Id. at 2935.

*5 If the Division has jurisdiction over a dispute under an agreed judgment, the party is required to first submit that dispute to the Division. City of Houston v. Rhule, 417 S.W.3d 440, 443 (Tex. 2013) (per curiam). A claimant’s failure to exhaust his administrative remedy divests the trial court of subject-matter jurisdiction. Id.

Because Sentry filed a notice of nonsuit of its request for declaratory relief, the matters pending before the trial court are Bristow’s counterclaims against Sentry and third-party claims against the Corporation. Bristow’s claims fall within two categories—claims based on Sentry’s obligations under the CSA and claims based on Sentry’s alleged delay in payment of, or failure to pay, medical expenses related to ulcers suffered by Bristow.

Under the first category of claims, Bristow requests an accounting of the attorney’s fees paid by Sentry in connection with the monthly payments under the CSA and asks that the CSA be enforced because he is in continuing need of home health care. Bristow also alleges (1) that Sentry violated the DTPA because it engaged in a course of conduct to avoid the payments of benefits to Bristow and attempted to avoid liability under the CSA after it received “medical advice and opinions” that were adverse to its position that Bristow no longer needed home health care, (2) that Sentry breached the duty of good faith and fair dealing when it paid attorney’s fees to a deceased attorney, (3) that Sentry violated Chapter 541 of the Texas Insurance Code “based on the same facts,” and (4) that Sentry committed fraud because it made representations when it entered into the CSA that certain benefits would be due and payable to Bristow and then attempted to avoid the agreement and because it failed to disclose to Bristow that it had obtained medical opinions that were adverse to its position.

We have reviewed the petitions for writ of mandamus and the mandamus record as it pertains to Bristow’s common law and statutory claims related to Sentry’s performance under the CSA, request for an accounting, and request for enforcement of the CSA on the ground that Bristow still requires home health care. As to those claims, we hold that Sentry has failed to show that it is entitled to the requested relief. Therefore, we deny Sentry’s petitions for writ of mandamus as to those claims. See TEX. R. APP. P. 52.8(a) (stating that, if the appellate court determines that the relator is not entitled to the relief sought, it must deny the petition).

Under the second category of claims, Bristow alleges (1) that Sentry violated the DTPA based on a “course of conduct” that was intended to avoid its liability under the CSA, (2) that Sentry breached the duty of good faith and fair dealing when it engaged in a “pattern of conduct” to delay and fail to pay for medical expenses for the treatment of ulcers that Bristow had developed as a result of his confinement to a wheelchair and when it failed to pay benefits timely, and (3) that Sentry violated Chapter 541 of the Texas Insurance Code “based on the same facts alleged above.” Bristow also seeks enforcement of the CSA because “Sentry has denied payment of reasonable and necessary medical expenses.”

The Division has continuing jurisdiction to render a successive award to determine Sentry’s liability for medical services and expenses provided to Bristow after March 31, 1993. See Act of May 23, 1977, 65th Leg., R.S., ch. 412, § 1, 1977 Tex. Gen. Laws 1113, 1113. Therefore, Bristow was required to submit to the Division any claim based on Sentry’s alleged delayed payment of, or failure to pay, medical expenses for treatment provided to Bristow after March 31, 1993. Indeed, the Division informed Bristow that he needed to submit a request for a formal hearing to adjudicate any dispute over the payment of medical expenses. Bristow failed to submit to the Division any claim that Sentry delayed the payment of, or refused to pay, any medical expenses for services provided to Bristow and, therefore, did not exhaust his administrative remedies as to any claims based on or related to those expenses.

*6 Because Bristow failed to exhaust his administrative remedies as to any claims based on or related to the allegedly disputed or unpaid medical bills, Judge Harrison did not have subject-matter jurisdiction over those claims. See Rhule, 417 S.W.3d at 443 (holding that claimant’s failure to exhaust his administrative remedies for breach of a settlement agreement divested the trial court of jurisdiction); In re Liberty Mut. Fire Ins. Co., No. 04-14-00254-CV, 2014 WL 3747332, at *4 (Tex. App.—San Antonio July 30, 2014, orig. proceeding [mand. denied] ) (holding that, because the carrier’s obligation to pay any disputed expense was required to be determined by the administrative process before the trial court had jurisdiction to review the administrative determination, a claim for misrepresentation pursuant to the Texas Insurance Code must also be dismissed for lack of jurisdiction); see also Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 804 (Tex. 2001) (“[J]ust as a court cannot award compensation benefits, except on appeal from a Commission ruling, neither can it award damages for a denial of payment of compensation benefits without a determination by the Commission that such benefits were due.”). Therefore, Judge Harrison abused his discretion when he denied Sentry’s plea to the jurisdiction as to those claims. Further, relief by mandamus is appropriate when a claimant fails to exhaust his administrative remedies through the workers’ compensation system prior to filing suit. In re Accident Fund Gen. Ins. Co., 543 S.W.3d 750, 754–55 (Tex. 2017) (orig. proceeding) (per curiam); In re Crawford & Co., 458 S.W.3d 920, 928–29 (Tex. 2015) (orig. proceeding) (per curiam).

This Court’s Ruling

We deny Sentry’s petitions for writ of mandamus as to Bristow’s common law and statutory claims related to Sentry’s performance under the CSA, request for an accounting of the attorney’s fees paid pursuant to the CSA, and request for enforcement of the CSA on the ground that Bristow still requires home health care.

We conditionally grant Sentry’s petitions for writ of mandamus as to Bristow’s common law and statutory claims based on or related to Sentry’s alleged delayed payment of, or failure to pay, medical expenses incurred by Bristow after March 31, 1993. We direct Judge Harrison to dismiss for lack of subject-matter jurisdiction Bristow’s claims (1) that Sentry violated the DTPA based on a “course of conduct” related to the delayed payment of, or failure to pay, medical expenses that was intended to avoid Sentry’s liability under the CSA; (2) that Sentry breached the duty of good faith and fair dealing when it engaged in a “pattern of conduct” to delay or fail to pay medical expenses for ulcers that Bristow had developed as a result of his confinement to a wheelchair; and (3) that Sentry violated Chapter 541 of the Texas Insurance Code based on Sentry’s alleged delayed payment of, or failure to pay, medical expenses and Bristow’s request that the CSA be enforced because “Sentry has denied payment of reasonable and necessary medical expenses.” A writ of mandamus will issue only if Judge Harrison does not comply by November 13, 2020.

Footnotes

3

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.

1

Bristow’s petition is not included in the mandamus record.

2

The legislature created the Texas Workers’ Compensation Commission in 1989 to implement and enforce the provisions of the Texas Workers’ Compensation Act. Tex. Mut. Ins. Co. v. PHI Air Med., LLC, No. 18-0216, 2020 WL 3477002, at *2 (Tex. June 26, 2020). The Commission is now the Division of Workers’ Compensation at the Texas Department of Insurance. Id.; see also Act of May 29, 2005, 79th Leg., R.S., ch. 265, §§ 1.001–8.016, 2005 Tex. Gen. Laws 469, 469–610.

Court of Appeals of Texas, Eastland.

Penny RIGGS, Appellant

v.

OLD REPUBLIC INSURANCE COMPANY, Appellee

No. 11-18-00276-CV

|

Opinion filed October 1, 2020

On Appeal from the 35th District Court, Brown County, Texas, Trial Court Cause No. CV1310459

Attorneys and Law Firms

Robert D. Stokes, Colin Moore, for Appellee.

John E. Gibson, Tia A. Wilson, for Appellant.

Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.1

MEMORANDUM OPINION

KEITH STRETCHER, JUSTICE

*1 This is an appeal from a denial of workers’ compensation death benefits with the Texas Department of Insurance, Division of Workers’ Compensation (DWC). The DWC determined that the deceased did not sustain a compensable injury and that the injury occurred while the deceased was intoxicated, relieving the carrier of liability. The decedent’s wife subsequently sought judicial review. The trial court granted a no-evidence summary judgment and ordered that the decedent’s wife take nothing. We affirm.

Factual and Procedural History

In October 2012, 3M was starting a new production facility in Tuas, Singapore. Employees from 3M’s Brownwood facility assisted in setting up the new facility. The company provided rooms for its employees at the Swissotel and a shuttle service to transport the employees from the hotel to the plant. Ernest Riggs, an employee of 3M, traveled from Texas to Singapore on October 6, 2012, to assist with the new facility.

Riggs arrived in Singapore on October 7th and had breakfast at the hotel. He stated that he was tired after a long day of travel, and he retired to his room for a nap. That evening, Riggs attended a “cocktail hour” with other employees at the hotel’s executive lounge. Kenneth Campbell was with Riggs in the lounge. Campbell testified that he and Riggs stayed at the lounge from 6:00 p.m. to 8:00 p.m. drinking beer. Campbell did not remember how many beers Riggs had consumed. After the cocktail hour, Riggs and Campbell skipped dinner and left the hotel to go to Clarke Quay, an area near the hotel where employees would frequently sit and socialize after work. To reach Clarke Quay from the hotel, employees crossed a bridge on foot.

Once at Clarke Quay, employees could buy beer from a convenience store and mingle with other Americans who were in the area for business. Campbell testified that he and Riggs stayed in the area drinking beer and chatting with a group of people from Louisiana until around midnight. The two then crossed back over the bridge to the hotel side and met up with other employees as they returned from dinner. The employees stayed at the bridge and continued to drink; Campbell testified that he had “a couple” of beers and that Riggs probably did as well. Campbell continued to stay at the bridge with the other employees, and Riggs left to return to the hotel. Campbell did not remember Riggs slurring his speech, stumbling, or otherwise appearing intoxicated. Paul Barberie, one of the employees who crossed paths with Campbell and Riggs at the bridge, testified that he thought Riggs was “extremely intoxicated” and acting out of character. The next morning, Riggs was found dead in a grassy area outside the hotel underneath the window of his sixth-floor hotel room. Riggs appeared to have left his room through the window to access a balcony that was not attached to his room. Riggs died as a result of the fall.

Appellant, Penny Riggs, filed a claim for workers’ compensation death benefits. Appellee, Old Republic Insurance Company, disputed Appellant’s claim, and the DWC held a contested case hearing on May 28, 2013, to decide (1) whether Riggs suffered a compensable injury and (2) whether Riggs was intoxicated at the time of the injury. The DWC Hearing Officer decided both issues in favor of Appellee, finding that the deceased was not injured during the scope of his employment and that the deceased was intoxicated at the time of his death.

*2 Appellant timely appealed the DWC decision, and the Appeals Panel reviewed the matter and permitted the Hearing Officer’s decision to become final. See TEX. LAB. CODE ANN. § 410.204(c) (West 2015). Appellant then sought judicial review, asserting that Riggs suffered a compensable injury during the course and scope of his employment and that he was not intoxicated at the time of his death.

Both parties moved for summary judgment. Appellant filed a traditional motion for summary judgment; Appellee filed a combined no-evidence and traditional motion for summary judgment. In its no-evidence motion, Appellee asserted two grounds: (1) that there was no evidence that Riggs was in the course and scope of his employment when he died and (2) that there was no evidence that Riggs was not intoxicated at the time of his death. After a hearing on the motions, the trial court granted Appellee’s no-evidence motion for summary judgment. On appeal, Appellant presents two issues. In the first issue, she argues that the trial court erred when it granted summary judgment because Appellant produced some evidence that Riggs was not intoxicated. In the second issue, Appellant contends that the trial court erred in admitting an unredacted copy of the DWC Hearing Officer’s decision.

Standard of Review

We review an appeal from a summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review a no-evidence motion for summary judgment under the same legal sufficiency standard as a directed verdict. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Under this standard, the nonmovant has the burden to produce more than a scintilla of evidence to support each challenged element of its claims. Id.; King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750–51 (Tex. 2003). We review the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the movant. Merriman, 407 S.W.3d at 248. Where, as here, the trial court’s order granting the no-evidence summary judgment does not specify which of the two grounds it relied on, we must affirm the judgment if either of the grounds are meritorious. See Lucan v. HHS Systems, L.L.C., 439 S.W.3d 606, 609 (Tex. App.—Eastland 2014, no pet.) (citing FM Properties Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000)). We find one of Appellee’s grounds dispositive of this appeal: the element related to the course and scope of Riggs’s employment.

Analysis

The Texas Workers’ Compensation Act (the Act) provides for a modified de novo judicial review of a final DWC decision involving compensability or eligibility for death benefits. Rodriguez v. Service Lloyds Ins. Co., 997 S.W.2d 248, 253 (Tex. 1999); see LAB. § 410.301(a). The party appealing the final DWC decision has the burden of proof by a preponderance of the evidence. LAB. § 410.303. Additionally, the Act limits judicial review to “issues decided by the [DWC].” Id. § 410.302(b).

Under the Act, a compensable injury is “an injury that arises out of and in the course and scope of employment for which compensation is payable under [the Act]. Id. § 401.011(10). Course and scope of employment means “an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.” Id. § 401.011(12). “An essential element that an employee must prove in order to recover workers’ compensation benefits is that the injury was sustained in the course of employment.” Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 627 (Tex. 1981).

*3 The trial court granted Appellee’s no-evidence motion, in which Appellee had asserted that there was no evidence that Riggs was in the course and scope of his employment at the time of death and that there was no evidence that Riggs was not intoxicated at the time of his death. Thus, Appellant had the burden to produce some evidence that Riggs was acting in the course and scope of his employment at the time he fell from the sixth floor of the hotel. On appeal, Appellant appears to have essentially abandoned this element. Instead, Appellant argues that “[t]he DWC Hearings Officer found that Mr. Rigg’s [sic] business trip to Singapore originated in the business affairs of his employer” and that, because Appellee failed to challenge that finding, “it is now binding.”

It is true that the DWC Hearing Officer made such a finding of fact and that Appellee did not raise a challenge. However, Appellant’s reliance on the finding is misplaced. The relied-on finding is factual, and findings of fact are distinct from “issues decided.” LAB. § 410.302(b). Here, the issues decided by the DWC were (1) whether Riggs suffered a compensable injury resulting in his death and (2) whether Riggs was intoxicated at the time of his injury. Judicial review is limited to issues decided by the appeals panel. See id.

Accordingly, one of the issues before the trial court was whether Riggs suffered a compensable injury. The test for whether an employee was injured while acting in the course and scope of his employment—and thus suffered a compensable injury—encompasses more than identifying the origin of a business trip. See, e.g., Shelton v. Standard Ins. Co., 389 S.W.2d 290, 293 (Tex. 1965) (considering the scope of employment for an employee “whose work entails travel away from the employer’s premises”). Instead, the general rule is that a compensable injury “(1) must be of a kind or character originating in or having to do with the employer’s work, and (2) must have occurred while engaged in the furtherance of the employer’s business or affairs.” Biggs, 611 S.W.2d at 627. Although Riggs was traveling at the behest of his employer, to be compensable, his injury must have “its origin in a risk created by the necessity of sleeping or eating away from home” and must not bear the characteristics of “a distinct departure on a personal errand.” Shelton, 389 S.W.2d at 293.

Even assuming the issue has been properly raised on appeal, the record is absent any evidence showing that Riggs was acting in the course and scope of his employment when he fell from the sixth floor of his hotel.

Because Appellant did not meet her burden to present more than a scintilla of evidence regarding course and scope, and because it is an essential element of a workers’ compensation claim that the employee was injured while in the course and scope of employment, the trial court properly granted Appellee’s no-evidence motion for summary judgment. To the extent that Appellant raises this matter in her first issue, we overrule that issue.

Having now decided that summary judgment was proper because Appellant failed to produce evidence that Riggs was acting in the course and scope of his employment, we need not address the portion of Appellant’s first issue in which she complains that summary judgment was improper to the extent that it was based upon the matter of intoxication, nor need we address Appellant’s second issue in which she complains about Appellee’s summary judgment evidence. See TEX. R. APP. P. 47.1 (written opinion of appellate court must address only issues necessary for the final disposition of the appeal).

This Court’s Ruling

We affirm the judgment of the trial court.

Willson, J., not participating.

Footnotes

1 Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.

Court of Appeals of Texas, Eastland.

Garrett MARTIN, Appellant

v.

FASKEN OIL AND RANCH LTD., Appellee

No. 11-18-00111-CV

|

Opinion filed April 2, 2020

On Appeal from the County Court at Law No. 2, Midland County, Texas, Trial Court Cause No. CC18845

Attorneys & Firms

Anna E. Brandl, for Appellee.

Matthew J. Olivarez, San Antonio, for Appellant.

Panel consists of: Wright, S.C.J.1

MEMORANDUM OPINION

KEITH STRETCHER, JUSTICE

*1 This is an appeal from a summary judgment granted in favor of Appellee, Fasken Oil and Ranch Ltd., in a suit in which Appellant, Garrett Martin, sought to recover damages for retaliatory discharge under the Texas Workers’ Compensation Act. See TEX. LAB. CODE ANN. § 451.001 (West 2015). In a single issue, Appellant argues that the trial court erred when it granted Appellee’s motion for summary judgment. We affirm.

Background Facts

In September 2014, Appellant began working for Appellee. As of January 2015, Appellant was working in the pipe yard, which required him to inspect pipes used for oil production and load them onto storage racks, which were stacked as high as seven feet or more. By nature of his job position, Appellant was at times required to help load pipes as large as seventeen inches in diameter and thirty-five feet in length, which can weigh up to 700 pounds.

In March 2015, Appellant suffered a non-work-related injury to his knee while weightlifting. Accordingly, Appellant was placed on leave of absence until he returned to work in July. Upon his return, Appellant was placed on light duty work with restrictions from his doctor that prohibited him from climbing or lifting, which gradually reduced as his injury healed. On Appellant’s first day back at work, Tommy Taylor, Appellee’s Director of Oil and Gas Development, further instructed Appellant to comply with the restrictions from his doctor and to refrain from climbing and lifting.

On Tuesday, September 15, 2015, Appellant injured his back while he and two other men were loading pipe onto a forklift. According to Appellant and several of Appellee’s employees, the forklift operator motioned at Appellant and the two other men with three fingers, signaling for all three men to lift the pipe onto the forklift. Nevertheless, Appellant proceeded to lift the pipe by himself over express objections by his coworkers warning him that he could injure his back by lifting the pipe alone. Appellant then proceeded to finish his shift without pain but was unable to get out of bed the next morning.

On September 17, Appellant informed Taylor that he had injured his back while moving a pipe, and Taylor asked Vince Hancock, Appellee’s safety coordinator, to start an investigation into the cause of Appellant’s injury. Through Hancock’s investigation, Taylor learned that Appellant had moved the pipe by himself despite his medical restrictions and the admonitions of his coworkers. Importantly, Appellant’s e-mail to Taylor, notifying him of the injury, omitted the fact that Appellant had lifted the pipe by himself—a decision he later admitted was unsafe.

After injuring his back, Appellant did not return to work until Monday, September 21, 2015. When he arrived at work on the 21st, he was instructed to go meet with Hancock and Jimmy Carlile concerning his injury. According to Appellant, both Hancock and Carlile instructed Appellant that they could not tell him how to handle his injury. Carlile, however, also allegedly told Appellant about an employee who had injured his hand at work and took care of the medical expenses himself because he knew he caused his own injury. Appellant took Carlile’s comments to mean, “[b]asically, do not have a worker’s comp claim.” Later that afternoon, Appellant decided he wanted to file a workers’ compensation claim, which Appellee then reported to its insurance carrier.

*2 The next day, Appellant was observed climbing on top of pipe racks despite having been told to stay on the ground by more than one individual. On Wednesday, September 23, 2015, Taylor informed Appellant that he was being terminated in light of his “unsafe work practices, his inability to follow instructions and his untruthfulness and lack of candor regarding the details of the incident that occurred on September 15, 2015.”

Appellant filed the current cause of action on July 19, 2016, alleging that Appellee terminated him for filing a workers’ compensation claim. Appellee later filed a combined no-evidence and traditional motion for summary judgment, which the trial court granted. This appeal followed.

Analysis

On appeal, Appellant argues that the trial court erred when it granted Appellee’s motion for summary judgment. We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

In this case, Appellee asserted both no-evidence and traditional grounds in its motion for summary judgment. When parties move for summary judgment on both no-evidence and traditional grounds, we first consider the no-evidence grounds. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). Accordingly, we first review claims under the no-evidence standard, and any claims that survive the no-evidence review will then be reviewed under the traditional standard.

To defeat a no-evidence motion, the nonmovant must produce evidence raising a genuine issue of material fact as to the challenged elements. See Ridgway, 135 S.W.3d at 601).

In this case, Appellee’s no-evidence motion for summary judgment alleged that Appellant had not established a causal connection between his termination and the filing of his workers’ compensation claim. The motion additionally alleged that Appellant had no evidence to rebut Appellee’s evidence that the decision to terminate Appellant was non-retaliatory.

Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 453 (Tex. 1996)).

*3 To succeed on a retaliation claim, an individual must show that the termination would not have occurred when it did apart from the filing of the employee’s workers’ compensation claim. Id. (citing Kingsaire, 477 S.W.3d at 312. Such circumstantial evidence may 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.

Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 469 (Tex. App.—El Paso 2012, no pet.).

If the employee is able to establish a causal link between the termination and the filing of a workers’ compensation claim, the burden shifts to the employer to provide evidence of a non-retaliatory reason for the termination. Tex. Div.–Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994). If the employee fails to produce additional evidence rebutting an employer’s evidence of a non-retaliatory termination, the employer is entitled to summary judgment. Id.

In this case, Appellant’s claim rests entirely on the fact that he was fired two days after he filed his workers’ compensation claim and on his subjective interpretation of comments made by Carlile. Temporal proximity alone, however, is insufficient to create an issue of fact, and Appellant’s assertion that Carlile did not want him to file a workers’ compensation claim is no more than a conclusion and is not competent summary judgment evidence. See id.; Willis v. Nucor Corp., 182 S.W.3d 536, 546 (Tex. App.—Waco 2008, no pet.).

Other than the temporal proximity and the statements of Carlile, Appellant himself acknowledged during his deposition that he could not produce sufficient circumstantial evidence on a majority of the Continental Coffee factors:

Q. Do you have any personal knowledge as to who made the decision to end your employment with Fasken?

A. No, sir.

Q. Do you have any personal knowledge as to who participated in making the decision to end your employment?

A. No, sir.

Q. Do you have any personal knowledge of what information was provided to the person making the decision to end your employment at Fasken?

A. No, sir.

Q. Do you have any personal knowledge of what information was relied on by the person making the decision to end your employment at Fasken?

A. No, sir.

Q. Can you identify any policies or procedures at Fasken that the company didn’t comply with in separating your employment?

*4 A. No, sir.

Q. Did anybody ever express a negative attitude towards your injury?

A. No, sir.

Q. Can you identify any facts for me that cause you to believe that the reason Fasken has provided in this lawsuit as to why it separated your employment is false, untrue?

A. Facts?

Q. Let me rephrase it for you. Can you identify any facts that cause you to believe that the reason Fasken has given for its decision to separate your employment in this lawsuit is false?

[APPELLANT’S COUNSEL]: Objection; form.

A. No, I can’t give you any facts.

Q. Can you identify any other employee who did not follow the instructions of Tommy Taylor, and who never had a workers’ compensation claim at work who wasn’t terminated?

A. No, sir.

Because Appellant failed to produce any summary judgment evidence that would call into question Appellee’s non-retaliatory explanation, the trial court did not err in granting Appellee’s motion for summary judgment. See Willis, 282 S.W.3d at 555. Accordingly, we overrule Appellant’s sole issue.

This Court’s Ruling

We affirm the judgment of the trial court.

Willson, J., not participating.

Footnotes

1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.

Court of Appeals of Texas, Eastland.

Francis GONZALES, Individually and as Surviving Widow of Carlos Gonzales, Appellant

v.

Brad WILLIAMS d/b/a Brad Williams Farms, Appellee

No. 11-17-00130-CV

|

Opinion filed June 28, 2019

On Appeal from the 106th District Court, Dawson County, Texas, Trial Court Cause No. 15-05-19588

Attorneys & Firms

Ann Phillips Stegall, M. Kathleen Davidson, for Brad Williams.

David Martinez, for Virginia Gonzales and Francis Gonzales.

Panel consists of: Wright, S.C.J.1

MEMORANDUM OPINION

JOHN M. BAILEY, CHIEF JUSTICE

*1 Appellant, Francis Gonzales, individually and as surviving widow of Carlos Gonzales,2 appeals the trial court’s order granting summary judgment in favor of Appellee, Brad Williams d/b/a Brad Williams Farms. Appellant filed suit against Appellee for negligence and gross negligence arising out of a single-vehicle accident that resulted in Gonzales’s death. In a single issue, Appellant contends that the trial court improperly granted summary judgment in favor of Appellee. We affirm.

Background Facts

Carlos Gonzales was involved in a single-vehicle rollover accident involving a 1987 Freightliner that occurred near O’Donnell. It is undisputed that, at the time of the accident, Gonzales was acting within the course and scope of his employment with Appellee. Gonzales died from his injuries while being transported to a hospital. Appellant filed a wrongful death lawsuit against Appellee for negligence and gross negligence.

Appellee was a nonsubscriber under the Texas Workers’ Compensation Act. In reliance upon a statutory defense in the Act, Appellee filed a traditional motion for summary judgment alleging that Gonzales was intoxicated as a matter of law because Gonzales had multiple controlled substances in his body at the time of the accident. See fentanyl in his blood at the time of the accident. Dr. Rosen’s toxicology report concluded that, based on the level and ratio of methamphetamine in Gonzales’s blood, Gonzales “had to have introduced methamphetamines into his body prior to [the] accident and his death. The amounts indicate voluntary introduction and the substance is a controlled substance[.]” Thus, Appellee asserted that Appellant’s claims against Appellee were barred as a matter of law because Gonzales was intoxicated.

Appellant timely filed a response to Appellee’s motion for summary judgment, alleging that a fact issue existed as to whether Gonzales was intoxicated. Appellant’s argument was based solely on the affidavit of Texas Department of Public Safety Trooper Joshua Loftin, which detailed conversations Trooper Loftin had with Appellee and another witness, Alejandro Esparza, sometime after the accident. Trooper Loftin recalled that Appellee had said that, at breakfast on the morning of the accident, Gonzales “appeared to be normal and there were no indications that there was anything wrong” with his physical or mental abilities.

The trial court initially heard Appellee’s motion for summary judgment on January 2, 2016. Both Appellant and Appellee appeared, through their attorneys, at this hearing.3 At the end of the hearing, the trial court expressed concern that the only evidence offered to rebut Appellee’s argument that Gonzales was intoxicated at the time of the accident was Trooper Loftin’s affidavit. However, the trial court decided to “leave [the] motion for summary judgment open” to consider later after the parties had additional time to develop evidence.

*2 Over a year later, the trial court set another hearing on Appellee’s motion for summary judgment. The trial court set the hearing for February 22, 2017, in an order entered on February 8, 2017. Appellant filed a motion to set aside the hearing, arguing that, pursuant to Rule 166a(c) of the Texas Rules of Civil Procedure, she did not receive twenty-one days’ notice before the hearing. Appellant also asserted that the consideration of Appellee’s motion for summary judgment was premature because additional discovery had not been completed since the first hearing.

Appellee responded to Appellant’s motion, asserting that he had complied with Rule 166a(c) by timely filing his motion for summary judgment and supporting affidavits before the first hearing in January 2016. Appellee asserted that he was not required to provide twenty-one days’ notice for the February 2017 hearing because Appellee was “not submitting a new motion for summary judgment” but, rather, was “requesting a re-hearing on the same motion that was heard last year.”

The trial court conducted the second summary judgment hearing on February 22, 2017. Appellant did not present any additional summary judgment evidence. After hearing the arguments of counsel, the trial court concluded that no fact issue existed and that Gonzales was intoxicated at the time of the accident. Accordingly, the trial court granted Appellee’s motion for summary judgment.

Analysis

In a single issue on appeal, Appellant asserts that the trial court erred in granting Appellee’s traditional motion for summary judgment. Appellant presents two arguments in support of her sole issue on appeal: (1) Appellant did not have reasonable notice of the second summary judgment hearing and (2) there were genuine issues of material fact that precluded summary judgment. We review a summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).

A party moving for traditional summary judgment bears the burden of proving that there is no genuine issue of material fact as to at least one essential element of the cause of action being asserted and that it is entitled to judgment as a matter of law. City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

Appellant argues that summary judgment was improper because she did not receive “reasonable notice” and that the trial court erred “in not setting aside the hearing due to Appellant’s specific objection on the lack of twenty-one (21) day notice.” In her motion to set aside the summary judgment hearing, Appellant asserted that she was “entitled to twenty-one (21) days’ notice before the hearing.” The trial court disagreed with Appellant’s contention by noting that the hearing in February 2017 was not another hearing but rather was a continuation of the prior hearing.

*3 Except on leave of court, Id. at 556. The court based its holding in part on the principal that a ruling on a motion for summary judgment is interlocutory and may be changed or modified before final judgment is rendered without a further motion or prior notice to the parties. Id.

We agree with the reasoning in Winn and find that it is applicable to the circumstances in this case. There is no dispute that Appellant was provided with the requisite twenty-one days’ notice of the first hearing on Appellee’s motion for summary judgment. That hearing concluded without the trial court entering a ruling on the motion. Instead, the trial court invited the parties to submit additional summary judgment evidence as discovery occurred in the case. Over a year later, the trial court again considered Appellee’s motion for summary judgment. As was the case in Winn, the second hearing to reconsider the pending motion for summary judgment did not require twenty-one days’ notice to the parties.

Appellant also asserts that summary judgment was improper because there were genuine issues of material fact as to whether Gonzales was legally intoxicated at the time of the accident. Appellant contends that (1) the affidavit of Trooper Loftin, (2) a statement made in Dr. Rosen’s toxicology report, and (3) Appellant’s answers to Appellee’s interrogatories created a genuine issue of fact as to Appellee’s affirmative defense of intoxication. Conversely, Appellee asserts that the trial court properly granted summary judgment in favor of Appellee because Appellant failed to raise a fact issue to rebut his probative evidence of intoxication.

§ 406.033(c).

The relevant definition of intoxication as provided in Section 401.013(a)(2)(B) of the Labor Code is as follows:

(2) not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of:

....

(B) a controlled substance or controlled substance analogue, as defined by Section 481.002, Health and Safety Code.

Id. § 401.013(a)(2)(B). A controlled substance “means a substance, including a drug, an adulterant, and a dilutant, listed in Schedules I through V or Penalty Group 1, 1-A, 2, 2-A, 3, or 4.” TEX. HEALTH & SAFETY CODE ANN. § 481.002(5) (West 2017). A controlled substance analogue means the following:

*4 (A) a substance with a chemical structure substantially similar to the chemical structure of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, 2, or 2-A; or

(B) a substance specifically designed to produce an effect substantially similar to, or greater than, the effect of a controlled substance in Schedule I or II or Penalty Group 1, 1-A, 2, or 2-A.

Id. § 481.002(6)(A)–(B). In cases involving controlled substances, “there is no level or test defined by the statute that establishes per se if a person has lost use of his or her physical and mental faculties.” § 401.013(a)(2).

If an employer “rebuts the presumption of sobriety with probative evidence of intoxication, the burden shifts to the employee to prove that he was not intoxicated at the time of injury.” § 401.013(c).

Appellee introduced summary judgment evidence that Gonzales was intoxicated as defined by 21 U.S.C. § 812.

Dr. Rosen concluded that, based on the levels of fentanyl are controlled substances and that amphetamine is an analogue. Dr. Rosen further explained:

Methamphetamine and Fentanyl is a sedative pain killer and would also cause difficulty driving a vehicle in someone who does not have significant tolerance to this drug.

....

... [I]t is ... likely that Mr. Gonzales had used Methamphetamine recently and that his impairment would have resulted in intense, distracting and overwhelming rapid flow of ideas with excitation, panic and potentially perceptual distortion, hallucinations and delusions. There is a significant decline in concentration and inability to divide attention following use of methamphetamine. Following use of this drug there are errors in judgement and perception.

*5 Based on the autopsy and toxicology report, we conclude that Appellee, a nonsubscriber under the Workers’ Compensation Act, rebutted the presumption of sobriety with probative evidence of Gonzales’s intoxication under § 406.033(c).

Appellant contends that the affidavit of Trooper Loftin created a genuine issue of material fact as to whether Gonzales had the normal use of his mental or physical faculties at the time of his injury. Trooper Loftin was one of the troopers who investigated the accident. The affidavit notes that sometime after the accident, Trooper Loftin spoke with Appellee and Alejandro Esparza, the passenger in the vehicle that Gonzales was operating at the time of the accident. In the affidavit, Trooper Loftin states that he recalled Appellee telling him that Appellee, Gonzales, and Esparza “met early for breakfast” on the day of the accident. Trooper Loftin notes in his affidavit:

During the breakfast[,] Carlos Gonzales[ ] appeared to be happy and in good spirits. Physically and mentally[,] he appeared to be normal and there were no indications that there was anything wrong with Carlos Gonzales[’s] physical or mental abilities.

Finally, Trooper Loftin notes that Appellee and Esparza did not express concern regarding Gonzales’s ability to operate the vehicle.

Trooper Loftin’s affidavit does not specify what time Gonzales, Appellee, and Esparza allegedly ate breakfast together on the day of the accident. The affidavit does not provide any indication of whether it was a matter of minutes or hours between the breakfast—where Gonzales allegedly appeared to have the normal use of his mental and physical faculties—and the accident, at which time he was intoxicated. As such, Trooper Loftin’s affidavit does not raise a genuine issue of material fact as to whether Gonzales was intoxicated at the time of the accident.

Appellant also asserts that there is evidence that the accident was caused by faulty breaks on the vehicle that Gonzales was operating—rather than intoxication. Specifically, Appellant points to her answer to Appellee’s Interrogatory No. 20, in which she asserted that the vehicle had faulty brakes and no inspection sticker. However, “a party cannot rely on its own answer to an interrogatory as summary judgment evidence.” Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000). Appellant also contends that the investigating officers concluded that the cause of Gonzales’s accident was the vehicle’s faulty brakes. The Texas Peace Officer’s Crash Report, attached to Trooper Loftin’s affidavit, included the “Investigator’s Narrative Opinion of What Happened”:

Unit #1 was traveling Southbound on FM 2370. The driver of Unit #1 attempted to stop at the intersection, but the brakes failed on the truck causing him to disregard the stop sign at the intersection, take faulty evasion action to the left, and roll Right Over Top through a fence. Unit #1 came to rest upright in the South barrow ditch facing Northwest.

Appellant also notes that the same crash report is referenced by Dr. Rosen in her toxicology report.

However, causation is not relevant to the intoxication defense. See LAB. Section 406.033 further identifies the defenses that implicate the employee’s conduct and on which a nonsubscribing employer may rely: the employee intended to bring about the injury, or the injury occurred while the employee was intoxicated.”). As such, Appellant’s argument that she provided evidence that the vehicle’s faulty brakes caused the accident is irrelevant to whether Gonzales was intoxicated at the time of the accident.

*6 We thus conclude that Appellant has not presented any evidence raising a genuine issue of material fact as to whether Gonzales was intoxicated at the time of his injury. See LAB. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). Accordingly, the trial court did not err in granting Appellee’s motion for summary judgment. We overrule Appellant’s sole issue on appeal.

This Court’s Ruling

We affirm the order of the trial court.

Willson, J., not participating.

Footnotes

1

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.

2

We will refer to Francis Gonzales as “Appellant,” and we will refer to Carlos Gonzales as “Gonzales.”

3

The Texas Supreme Court has held that a reporter’s record is neither necessary nor appropriate to the purposes of a summary judgment hearing. Schneider Nat’l Carriers, Inc. v. Bates, 147 S.W.3d 264, 292 n.141 (Tex. 2004). Irrespective of this directive, the parties have filed a reporter’s record for two hearings held on Appellee’s motion for summary judgment. We have been aided by the reporter’s record because it permits us to review the parties’ arguments concerning notice. The reporter’s record has also provided us with the details of the trial court’s rulings at each hearing. We have not considered the reporter’s record for determining the merits of Appellee’s motion for summary judgment.

Court of Appeals of Texas, Eastland.

Julie T. CHAU, Appellant

v.

SELECT MEDICAL CORPORATION d/b/a Regency Hospital of Odessa, LLP, Appellee

No. 11-17-00047-CV

|

Opinion filed July 19, 2018

*415 On Appeal from the 161st District Court, Ector County, Texas, Trial Court Cause No. B-136,673

Attorneys & Firms

Robert Chris Pittard, for Appellant.

Jon Mark Hogg, San Angelo, for Appellee.

Panel consists of: Wright, S.C.J.6

OPINION

MIKE WILLSON, JUSTICE

Julie T. Chau alleged claims of discrimination based on race, national origin, and age, and of retaliation against her employer, Select Medical Corporation d/b/a Regency Hospital of Odessa, LLP (Regency). Regency filed a traditional motion for summary judgment based upon the statute of limitations because Regency believed that Chau failed to timely file her petition. The trial court granted Regency’s motion for summary judgment, and on appeal, Chau asks this court to review whether a question of material fact exists concerning the timeliness of the filing of her petition under the mailbox rule in TEX. R. CIV. P. 5. We reverse and remand.

I. Summary Judgment Evidence

Chau filed a charge against Regency with the Texas Workforce Commission, Civil Rights Division, and she received her notice of the right to file a civil action on September 27, 2013. Chau had sixty days from this date, or until November 26, to file her petition. See TEX. LAB. CODE ANN. § 21.254 (West 2015).

Chau asserted that her lawyer mailed her petition to the district clerk on *416 November 25, and the clerk filed it on December 2. December 2 was the first business day after the Thanksgiving holiday.1 Chau contends that the filing was timely under the mailbox rule.2 As shown in Chau’s response to Regency’s motion for summary judgment, Chau’s attorney filed an affidavit and attached exhibits, including a copy of the cover letter that was mailed with the petition.

Chau’s attorney stated in the affidavit that “Plaintiff’s Original Petition was mailed to the Ector County district clerk on November 25[,] 2013, requesting citation,” and he cited to the attached letter. The letter was addressed to the Ector County district clerk and contained a heading, which read “Via Priority Mail, USPS Tracking,” above the recipient’s address block. The United States Postal Service tracking and return tracking numbers appeared in print at the bottom of the letter, and the corresponding tracking numbers were stamped in the bottom right-hand corner of the page. Chau’s attorney’s affidavit also stated that the Ector County district clerk received the petition on December 2 and issued citation on December 3. As Regency points out, Chau did not produce a copy of a stamped envelope, postmark, or mailing receipt.

II. Analysis

Chau argues that she produced more than a scintilla of evidence that raised a question of material fact on the timeliness of the filing of her petition, under the mailbox rule. Regency responds with two arguments. First, the mailbox rule in Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). Consequently, we address both of Regency’s arguments.

A. The mailbox rule in Section 21.254 of the Texas Labor Code.

Whether the mailbox rule applies to the limitations period in Rule 5 of the Texas Rules of Civil Procedure provides:

When by these rules ... an act is required ... within a specified time, the court for cause shown may, at any time in its discretion ... order the period enlarged ... or ... permit the act to be done after the expiration of the specified period where good cause is shown for the failure to act....

If any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service *417 shall be prima facie evidence of the date of mailing.

TEX. R. CIV. P. 5.

The second paragraph of TEX. R. CIV. P. 5.

Because the mailbox rule “does not extend the substantive limitations period” but instead “defines what constitutes ‘bringing suit,’ ” there is no conflict that prevents the application of Gutierrez are distinguishable.

The issue in Rule 5 as a reference only to “good-cause” extensions in the first paragraph of the rule.

Next, the Rule 5 is questioned.

We see no substantive distinction between the deadline in Section 21.254 “does not contain the mandatory dismissal language”).

There are two other reasons to hold that the 60-day deadline in Section 21.254, we now address whether Chau’s evidence was sufficient to create a material question of fact on the timeliness of the filing of her petition.

B. The affidavit of Chau’s attorney and attached documents are sufficient to create a question of material fact on Chau’s compliance with the mailbox rule.

Chau argues that her attorney’s affidavit and the attached cover letter are evidence that she complied with the mailbox rule. Regency does not dispute the affidavit, but it instead argues that this evidence was insufficient to prove “that the petition was sent by first class United States mail, that the envelope in which it was sent was properly addressed and stamped[,] or that it was deposited in the mail on or before the last day for filing.”

We review summary judgments de novo under a well-settled, multifaceted standard of review. Arnold, 24 S.W.3d at 471.

“A defendant moving for summary judgment on the affirmative defense of limitations has the burden to conclusively establish that defense.” Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985).

Generally, “a document is ‘filed’ when it is tendered to the clerk, or otherwise put under the custody or control of the clerk.” Arnold, 24 S.W.3d at 472.

An attorney’s uncontroverted affidavit can establish compliance with the mailbox rule. Jackson v. Texas Workforce Comm’n, No. 2-04-246-CV, 2005 WL 250872, at *1 (Tex. App.—Fort Worth Feb. 3, 2005, no pet.) (mem. op.). In this case, Chau adduced sufficient evidence for each element of the mailbox rule to create a question of material fact on the timeliness of the filing of her petition.

Chau’s attorney’s affidavit provides that he mailed the petition to the Ector County district clerk, which Chau asserts complied with the first element. The heading above the recipient’s address, which reads “Via Priority Mail, USPS Tracking,” and the stamped USPS tracking numbers show that Chau’s attorney used USPS priority mail, which Chau argues satisfied element two. See White, 554 F.Supp.2d at 690 (reasoning that the envelope was properly addressed because there was “no evidence that the petition was returned to White’s counsel for being improperly addressed, and the file-stamp shows that the petition reached the clerk’s office within forty-eight hours of mailing”). For the fourth and fifth elements, the attorney’s affidavit provides that he mailed the petition on November 25, 2013, which was before the deadline (fourth element) and that the clerk received the petition on December 2, which was within ten days of mailing (fifth element).

*421 Regency did not controvert Chau’s summary judgment evidence with competent summary judgment evidence to negate Chau’s compliance with the mailbox rule. On appeal, Regency argues that Chau lacks sufficient evidence on elements two, three, and four. In particular, Regency asserts that, because Chau did not produce a copy of the envelope, postmark, or mailing receipt, there is no prima facie proof of mailing. “But there are multiple forms of prima facie evidence by which a court may determine the filing date under the ‘mailbox rule.’ ” Rule 5. We sustain Chau’s sole issue.

III. This Court’s Ruling

We reverse the judgment of the trial court and remand this cause to the trial court for further proceedings consistent with this opinion.

Footnotes

6

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.

1

We may take judicial notice of state holidays. See, e.g., Martinez v. Windsor Park Dev. Co., 833 S.W.2d 950, 951 (Tex. 1992).

2

The parties do not dispute Chau’s diligence in serving process after the filing.

3

“First-Class Mail prices are the same regardless of how far the mail travels.” https://pe.usps.com/BusinessMail101?ViewName=FirstClassMail. In contrast, “[P]riority mail postage is determined by how far the mail piece must travel to get to its destination: the farther it travels the more you pay in postage.” https://pe.usps.com/BusinessMail101?ViewName=PriorityMail. “The actual distance is measured by ‘zones.’ ” Zones range from zone 1 (local, close to you) to zone 8 (very far away from you). The farther the mail travels, the more zones it crosses, and the more postage you pay. You can access zone charts online.” Id. “For some large, lightweight Priority Mail packages you will use dimensional weighting for postage if the package is going to zones 5-8.” Id.

4

See https://pe.usps.com/BusinessMail101/Index?ViewName=FirstClassMail.

5

In Rule 5, the mailbox rule.

Court of Appeals of Texas, Eastland.

Diana GODINES, individually and on behalf of Amando Godines, Sr., Deceased; Michael Godines; Amando Godines, Jr.; and Deanna Quitugua, Appellants

v.

PRECISION DRILLING COMPANY, L.P., Appellee

No. 11–16–00110–CV

|

Opinion filed May 31, 2018

On Appeal from the 238th District Court, Midland County, Texas, Trial Court Cause No. CV–52178

Attorneys & Firms

Greggory A. Teeter, for Diana Godines.

Stacy R. Obenhaus, for Precision Drilling Company, LP.

Greggory A. Teeter, for Amando Godines.

Greggory A. Teeter, for Deanna Quitugua.

Greggory A. Teeter, for Michael Godines.

Kevin P. Riley, for Parsley Energy Operations, LLC.

B. Calvin Hendrick, Tommy D. Sheen, for Briley Trucking, Ltd.

John Kenneth Woodard, for J.W. Mulloy Associates, Inc.

Panel consists of: Wright, S.C.J.2

MEMORANDUM OPINION

MIKE WILLSON, JUSTICE

*1 Appellants, the surviving spouse and children of Amando Godines, Sr.,1 sued Precision Drilling Company, L.P., among others who are not parties to this appeal, for wrongful death under negligence and gross negligence theories. Precision answered the suit and moved for summary judgment on traditional and no-evidence grounds. Precision argued that (1) proof of its status as a workers’ compensation subscriber conclusively barred the negligence claim and (2) Appellants produced no evidence of gross negligence—no evidence of Precision’s awareness of the risk, of a vice principal’s gross negligence, or of proximate cause. The trial court granted summary judgment for Precision, and on appeal, Appellants raise four issues. We affirm.

I. Summary Judgment Evidence

Precision worked with a trucking company, Briley Trucking, Ltd., to move an oil and gas rig from one well site to another. At the original well site, Briley sought approval from Precision to transport the derrick using the “two-truck method,” in which the derrick was only partially collapsed (or “scoped in”) and moved using two trucks. Because the derrick dolly needed repairs, the two-truck method provided Precision a way to move the rig more quickly. Precision supervisors, Benjamin Franco and Salvador Ulloa, raised concerns with the Briley “truck pusher” that moving the derrick in this manner was dangerous. The Briley truck pusher and Precision supervisors called Precision’s drilling superintendents, Roger Dean Moran and Roel Soza, to discuss the move. After the Briley truck pusher told Moran that he could perform the move safely, the superintendents approved the two-truck method.

To prepare the rig move, two tractor-trailers trucks were backed up to one another. Briley and Precision partially collapsed sections of the derrick and secured them using pins. The derrick rested horizontally on both trailers, with one truck facing forward and the other truck facing backwards. Briley drove the rig over ten miles on a highway and rough lease roads to the new well site.

When the trucks arrived at the new well site, the suspension equipment was not ready for the derrick. The Precision crew was using the crane for tasks involved with building the substructure of the rig. Precision and Briley supervisors testified that they planned to finish the substructure, have a “Job Safety Analysis” (JSA) meeting, and then suspend the derrick with either the crane or the pole trucks. The parties dispute whether a JSA meeting took place before the crew “scoped in” the derrick at the original well site, but the parties agree that no JSA meeting occurred to discuss “scoping out” the derrick at the new well site. The derrick remained on the tractor-trailers for almost two hours while the Precision crew worked on the substructure.

At some point, the Briley truck pusher at the new well site had a radio conversation about the status of the derrick, and he walked toward the derrick to check the “diaper pins,” which held the larger pins in place under the derrick. The truck pusher testified that he picked up a sledgehammer and was only going to remove the diaper pins, as opposed to the larger pins, and that Godines insisted on removing the diaper pins because it was his job. The truck pusher also testified that Godines took the sledgehammer, but another Precision crew member testified that the truck pusher gave it to him. Other testimony also suggested that the Briley truck pusher instructed Godines to remove the pins. In any event, all Precision supervisors testified that the derrick was not ready to scope out and that they did not instruct Godines to check the pins.

*2 Godines was fatally injured after he positioned himself underneath the derrick and removed one of the load-bearing pins. After Godines removed the pin, the remaining pin sheared off and the derrick collapsed on top of him.

II. Issues Presented

On appeal, Appellants’ first issue is a global issue, which asks whether the trial court erred when it granted summary judgment. In the second issue, Appellants assert that the trial court erred when it considered late-filed evidence. Third, Appellants argue that the evidence precludes summary judgment on no-evidence grounds. Finally, Appellants argue that Precision failed to meet its burden on traditional grounds.

III. Analysis

We first consider Appellants’ second and fourth issues concerning the late-filed summary judgment evidence and its effect on the negligence claim. Then we consider the first and third issues related to the no-evidence summary judgment on the gross negligence claim.

A. Issues Two and Four: The trial court did not abuse its discretion when it granted leave to file the workers’ compensation policy late, and the exclusive remedy provision of the Texas Workers’ Compensation Act bars Appellants’ negligence claim.

In their second issue, Appellants argue that the trial court improperly considered Precision’s late-filed summary judgment evidence. Because of that, in their fourth issue, Appellants assert that Precision failed to conclusively establish that it was covered by workers’ compensation insurance and that the exclusive remedies provision barred their negligence claim.

1. Second Issue—Standard of Review

“Summary judgment evidence may be filed late, but only with leave of court.” Lawler v. Dallas Statler–Hilton Joint Venture, 793 S.W.2d 27, 30 (Tex. App.—Dallas 1990, writ denied) ).

2. The trial court did not abuse its discretion when it considered late-filed evidence.

Precision moved for summary judgment and attached the affidavit of a risk manager to prove that it was covered by a workers’ compensation policy at the time of Godines’s death. Appellants filed a response and argued that Precision failed to meet its burden because it did not attach the workers’ compensation policy to the summary judgment motion. Then, on the day before the summary judgment hearing, Precision filed a motion for leave to supplement its evidence and attached the policy. The policy listed Precision as covered on a rider to the information page.

*3 Appellants objected to the late filing, arguing that the length of the document and the time of filing prevented them from identifying potential problems with the coverage. Precision responded that filing the actual policy was unnecessary but that it sought to supplement the evidence as a precaution. Precision argued that Appellants did not suffer prejudice because Precision’s attorneys notified them about the policy two days after the accident and they had attempted to file a beneficiary claim under the policy. Precision produced e-mail correspondence between the attorneys for Precision and Appellants and also produced the beneficiary-claim form that Diana Godines had filed. The trial court sustained Appellants’ objection at the hearing but then later issued a written order that granted Precision leave to supplement the record. On the same day, the trial court granted summary judgment in Precision’s favor.

The trial court acted within its discretion to grant Precision leave to file late evidence. The trial court could have reasoned that Precision had good cause to file the workers’ compensation policy late because it was a response to Appellants’ argument that the initial affidavit from the risk manager was insufficient. The trial court could have also inferred from the e-mail correspondence and beneficiary claim that Appellants would not have suffered surprise from the late filing. Therefore, we cannot say that the trial court abused its discretion when it granted Precision leave to file late summary judgment evidence.

Appellants also argue that, because the trial court sustained the objection to the late-filed evidence at the summary judgment hearing, the trial court should not have considered the workers’ compensation policy. But “[a] trial court has the inherent authority to change or modify any interlocutory order or judgment until its plenary power expires.” TEX. R. CIV. P. 329b(d). Therefore, even after it initially sustained Appellants’ objection, the trial court had the authority to change its mind and grant the motion to admit late-filed evidence.

3. Workers’ compensation is the exclusive remedy, and Appellants’ negligence claim is barred.

“Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance.” Morales v. Martin Res., Inc., 183 S.W.3d 469, 471 (Tex. App.—Eastland 2005, no pet.).

The “information page of a workers’ compensation policy” and an affidavit by a risk manager who maintains that the coverage was effective at the time of the incident is sufficient to prove that an employer maintained workers’ compensation insurance. E.g., Martinez v. H.B. Zachry Co., 976 S.W.2d 746, 748 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (holding that the affidavit of a “claims manager” coupled with the information page of the policy established coverage). Here, Precision produced an affidavit by its risk manager stating that it maintained workers’ compensation insurance at the time of Godines’s death. Then Precision supplemented its evidence with the full policy, which included an information page listing Precision as a covered entity. This evidence conclusively established that Precision maintained workers’ compensation insurance. The trial court was within its discretion to consider the late-filed policy, which conclusively proved that the exclusive remedy provision of the Texas Workers’ Compensation Act applies. We overrule Appellants’ second and fourth issues.

B. Issues One and Three: The trial court properly granted summary judgment on Appellants’ gross negligence claim because Appellants failed to adduce evidence that raised a genuine issue of material fact that Precision was consciously indifferent to Godines’s safety.

*4 We now turn to the no-evidence summary judgment on Appellants’ gross negligence claim. The standard of review for summary judgment is the same for gross negligence as for ordinary negligence. See Barker v. Roelke, 105 S.W.3d 75, 82 (Tex. App.—Eastland 2003, pet. denied).

1. Standard of Review

We review summary judgment motions under a well-settled, multifaceted standard of review. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) ). Once such a motion is filed, the burden shifts to the nonmoving party to present evidence raising an issue of material fact as to the elements specified in the motion. Id.

2. Appellants failed to adduce evidence that raised a genuine issue of material fact that an act or omission by a vice principal of Precision proximately caused Godines’s death.

Precision moved for summary judgment on no-evidence grounds because it asserted that there was no evidence to establish an act or omission by a Precision vice principal that proximately caused Godines’s death. In response, Appellants produced four expert affidavits, two affidavits by Franco, and various deposition testimony.

Several witnesses provided evidence in either affidavits or depositions. Dr. Jahan Rasty, a mechanical engineering expert, concluded that the pin on the opposite side of the derrick fractured after Godines removed the first pin, which caused the collapse. John P. Hughett, an engineering and oilfield operations expert, stated that the rig manufacturer published a manual for moving the rig and that the two-truck method is against the recommended practice. Hughett concluded that Precision ignored these dangers, that Precision “failed to see that the pins were installed in the correct direction,” and that Precision “failed to properly train its rig crew on mast rig down and rig up operations.” Matthew Meyerhoff, a motor carrier consultant, outlined reasons that he believed that the two-truck method violated its permit and transportation regulations. He opined that Precision’s decision to transport the rig using the two-truck method was “made based upon the quickest way to get the oil rig up and running.” He also stated that the decision prioritized “profits over safety and created an extreme degree of risk of harm to all personnel involved in the transportation of the derrick.” Appellants’ expert, Gary S. Nelson, described the elements of a workplace safety program and the JSA process. Specifically, if Precision had used a derrick dolly, “the rig would have to have been triple scoped to accommodate its use, and since a derrick dolly cannot be used to scope out a rig, then the rig would have automatically been supported by pole/gin trucks before scope out.” However, none of these individuals were vice principals of Precision, and none testified that a Precision supervisor had proceeded to “unscope” the rig or had instructed Godines to do so.

*5 Precision’s superintendent, Moran, who approved the two-truck method, confirmed that JSA meetings are required before scoping in or scoping out a rig and that a failure to perform a JSA “likely will lead to significant harm and injury on a work site.” Moran testified that the rig manager on site is responsible for ensuring that a JSA meeting occurs. Precision does not train its rig managers in a single safe way to move a rig; instead, “they have a rig move plan ... that they get with the trucking company” who moves the rig. The rig managers and the trucking company jointly create guidelines for a rig move at the job site. The rig manager is the Precision supervisor who is responsible for “[a]ll safety issues,” and Ulloa was the rig manager for Rig 305.

Precision still needed to move the derrick from where it was parked to the location where “it was going to be pinned into position and raised.” Setting up an oil and gas rig is a process with several steps, and Franco confirmed that he “follow[ed] the typical steps that you follow in setting up the pieces of the rig necessary to put it in position.” When asked about whether the rig manager would take instructions from a third party, Moran testified that the rig manager might have taken direction from a truck pusher in some circumstances. When asked about whether Precision’s protocol would have allowed a third party to instruct a Precision employee, Moran said, “[T]hey do job tasks if everything is done safely. We’ve—we’ve taken instruction from [a] third party.” Regarding Godines, Moran testified that “on a critical task you have to ... get the rig manager involved. And he wasn’t aware of the job task that was being done.”

Precision created a JSA for scoping out Rig 305 a couple of years before Godines’s death. Although Ulloa knew about the written JSA and the “risk potentials” that it listed, he did not use it. Ulloa maintained that he did not hold a verbal JSA at the new well site because it was not yet time to scope out the derrick. Moran also testified that Precision was not ready to scope out the derrick at the time of the accident, and he consistently maintained that Precision supervisors did not know that anyone was scoping out the derrick.

Franco, who was a driller for Precision, stated that Precision “knew that having people work around the derrick without it being supported with pole trucks, stands or a crane was extremely dangerous.” According to him, “[t]here was no reason for anyone to be near the rig” while the crane or pole trucks were not in place. In his deposition, Franco stated that Precision was not ready to scope out the rig at the time of Godines’s death. When asked whether the derrick “pose[d] any danger to anybody while it was just parked” at the new well site, Franco said, “No, sir.”

When asked how many crew members it would take to safely scope out the derrick, Franco replied, “As many as possible.” He confirmed that Godines could not have scoped out the rig alone. Franco characterized Godines as an experienced worker who had worked in the oilfield most of his life, and Franco said that he did not instruct Godines to check the pins. Franco blamed himself for the accident because he supervised Godines and he “wasn’t there to stop” him. Franco testified that he and the other crew members did not see Godines strike the pin under the derrick because they were doing other tasks.

Eduardo Quezado, a Precision floor-hand employee, saw Godines underneath the derrick striking the pin, but he did not realize Godines was performing a dangerous task. Quezado testified that the radios were only used by the Briley truck pushers, not Precision.

In sum, Precision argues that none of this evidence shows that a vice principal of Precision proximately caused Godines’s death or that any negligent act amounted to gross negligence. Even if we assume, without deciding, that Moran, Ulloa, Franco, and Quezado were all vice principals of Precision, we conclude that there was no evidence that raised a genuine issue of material fact that any Precision supervisor’s acts or omissions proximately caused the accident and Godines’s death.

*6 Appellants suggest that Precision knew that using the two-truck method was likely to damage the derrick mast during transportation and risk collapse. Appellants’ experts’ affidavits support the assertion that moving a rig in this way can cause damage to the derrick, but there is no evidence that any such damage actually caused the collapse. A plaintiff must prove all the elements of negligence as a prerequisite to a gross negligence claim. Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992).

Dr. Rasty indicated in his affidavit that the two-truck method was a factor contributing to stresses on the failed travel pin, but he also stated that further analysis would be needed “to quantify the contribution of transportation-induced stresses” on the pins. Hughett’s affidavit stated that the two-truck method could cause damage to the derrick mast, and Meyerhoff averred that the two-truck method was dangerous because it violated motor carrier regulations.

We agree with Precision that these affidavits do not raise a genuine issue of material fact on a causal connection between the risks of transportation and Godines’s death. The parties do not dispute that the derrick collapsed after Godines removed one of the travel pins. None of the experts’ statements indicate that a single pin—even one in brand new condition—could have supported the weight of the derrick. Appellants failed to adduce evidence that raised a genuine issue of material fact that the transportation method damaged the derrick’s pins and substantially contributed to Godines’s death.

3. Appellants failed to adduce evidence that raised a genuine issue of material fact that Precision was consciously indifferent to the extreme risk that created the likelihood of serious injury to Godines.

Gross negligence has two elements: an objective and a subjective element. U–Haul, 380 S.W.3d at 141.

In Andrade, the plaintiff failed to produce any evidence that the defendant’s managers were consciously indifferent to the risk of electrocution by an energized crane. Diamond Shamrock Ref. Co. v. Hall, 168 S.W.3d 164, 172 (Tex. 2005) (holding there was no evidence the defendant was conscious that a “compressor was unsafe as designed and operated,” although the defendant’s efforts to protect against the dangers of working in an oil refinery were “imperfect” and “may have been negligent”).

*7 In contrast, the plaintiffs in Burk Royalty produced circumstantial evidence that the district superintendent of an oil well site was consciously indifferent to the risk of a fire on a rig. Lee Lewis, 70 S.W.3d at 784, 786 (holding that the subjective element of gross negligence was satisfied where a “job superintendent” saw employees working on the ninth floor of a building that was under construction with an “ineffective fall-protection system” and “did nothing to remedy it”).

The present case is more like Andrade because there was no evidence that a Precision supervisor was conscious that one of its employees was about to scope out the derrick from the two trucks but, nonetheless, allowed the employee to continue doing so without conducting a JSA meeting beforehand. There is no evidence that a Precision supervisor instructed Briley or any employees to begin scoping out the rig. All Precision supervisors, including Franco, testified that it was not yet time to scope out the derrick when Godines went to remove the pins and that the derrick was not in the position to begin that process.

Although Franco testified that he knew it was dangerous to work around the rig, his admission that the derrick did not pose a risk while it was parked on the tractor-trailers shows that he was not subjectively aware of the risk at the time Godines removed the pin. Like the managers in Andrade who all testified that they believed that they locked out the crane, all Precision managers subjectively believed that there was no risk to the crew at the particular time that Godines went under the derrick to remove the travel pins. Franco also testified that “[t]he instructions from the truck pusher to Godines were not cleared through” him, and he admitted that there was no reason for his crew to be around the derrick at that time.

Furthermore, Godines was an experienced employee with the authority to stop work if he thought an activity was unsafe. Employee experience and “stop work authority” are factors that decrease the foreseeability that a worker would encounter an extreme risk without specific instructions. See Petri v. Kestrel Oil & Gas Props., L.P., 878 F. Supp. 2d 744, 768 (S.D. Tex. 2012) (holding that there was not clear and convincing evidence that the employer was subjectively aware that an experienced worker with stop work authority “would miscalculate the danger, not comply with company safety standards, nor use a readily available life vest, despite the clear sign requiring it, nor exercise his stop work authority”).

Appellants argue that circumstantial evidence indicates that Precision was aware that the process of scoping out the derrick had begun. Another Precision employee, Quezado, was in the area around the derrick when Godines went to remove the pins, and Quezado heard the Briley truck pusher discuss scoping out the derrick on his radio. However, Quezado testified that he was working on the mud boat nearby, and the uncontroverted evidence shows that only Briley truck pushers used the radios. Without evidence that Precision supervisors communicated with Briley or were otherwise aware of Briley’s actions, the radio conversation does not raise a question of material fact that Precision supervisors consciously allowed their crew to begin scoping out the rig without a JSA meeting. Standing alone, circumstantial evidence of the proximity of one other employee performing different tasks in the same area is too meager to impute actual awareness to Precision’s supervisors. See Blount v. Bordens, Inc., 910 S.W.2d 931, 933 (Tex. 1995) ). Therefore, these facts do not create the inference that a Precision supervisor was aware that the Briley truck pusher or any employee would begin the process of scoping out the derrick and consciously disregarded the risk to Godines. Appellants failed to adduce evidence that raised a genuine issue of material fact that a Precision supervisor was aware of the risk to Godines and that such supervisor began scoping out the derrick with conscious indifference to Godines’s safety. Thus, Appellants failed to raise a genuine issue of material fact on the mental state required to prove gross negligence. We overrule Appellants’ third issue.

IV. Conclusion

*8 The trial court did not abuse its discretion when it allowed and considered the late-filed evidence, and the trial court properly granted summary judgment in favor of Precision on Appellants’ negligence claim. Because Appellants failed to raise a genuine issue of material fact on one or more elements of their gross negligence claim, the trial court did not err when it granted Precision’s no-evidence motion for summary judgment. In light of this court’s disposition of Appellants’ second, third, and fourth issues, we also overrule Appellants’ global first issue.

V. This Court’s Ruling

We affirm the judgment of the trial court.

Footnotes

2

Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland, sitting by assignment.

1

Godines died while working for Precision Drilling Company, L.P. as a motorman on the rig crew.

Court of Appeals of Texas, Eastland.

Earnie L. RANDELL, Appellant

v.

Jeffery B. GALBREATH, Individually and d/b/a Galbreath Law Firm, and Frederick Dunbar, Appellees

No. 11–15–00056–CV

|

Opinion filed June 22, 2017

On Appeal from the 350th District Court, Taylor County, Texas, Trial Court Cause No. 10376–D

Attorneys & Firms

Lana P. Beverly, for Jeffrey B. Galbreath, Individually d/b/a Galbreath Law Firm and Frederick Dunbar.

Coby D. Smith, for Earnie L. Randell.

Panel consists of: Bailey, J.

MEMORANDUM OPINION

MIKE WILLSON, JUSTICE

*1 After Earnie L. Randell became dissatisfied with the legal services provided by his former lawyers, including Jeffery B. Galbreath and Frederick Dunbar, he sued them for breach of contract, negligence, and other causes of action. Galbreath and Dunbar answered and moved for summary judgment on traditional grounds on their affirmative defenses of release and actual or apparent authority. They asserted that Randell had authorized another lawyer, Donald MacPhail, to settle Randell’s claims with them and to sign a Release and Compromise Agreement (the Release) on Randell’s behalf. After a hearing, the trial court granted Galbreath and Dunbar’s traditional motion for summary judgment and later severed Randell’s claims against Galbreath and Dunbar from the original cause.

On appeal, Randell asserts that the trial court erred when it granted summary judgment in Galbreath’s and Dunbar’s favor for two reasons. First, he claims that he had raised genuine issues of material fact on whether he signed the Release. Second, he argues that the trial court could not rule on a ground that was not advanced in the summary judgment motion. We affirm.

I. Background Information

While on the job in December 2005, Randell suffered injuries when his vehicle was struck by a bus, and he incurred significant medical expenses from two surgeries. He retained Galbreath and Dunbar to represent him in a personal injury lawsuit against the driver and the owner of the bus. Galbreath and Dunbar negotiated a proposed settlement of Randell’s suit for $700,000 and sought his permission to settle the suit. Randell’s contract with his lawyers provided that their contingency fee was forty percent of the “amount recovered” and that Randell had to pay all incurred expenses from his share of the recovery. Randell authorized the settlement, agreed to and signed the disbursement agreement on September 15, 2009, and received $198,817.30; he also agreed to dismiss his personal injury lawsuit with prejudice.

Afterward, Randell spoke to another lawyer, Donald MacPhail, about his case. Randell thought he was owed more money from Galbreath. Randell thought that the settlement had adversely affected his workers’ compensation benefits and claimed that he was owed more money because he had a verbal agreement with Galbreath, prior to September 15, 2009, to pay him an additional $100,000. Randell acknowledged that he had hired MacPhail “to get more money” from the Galbreath Law Firm. MacPhail testified that Randell had retained him to negotiate Randell’s claims, but Randell later claimed that MacPhail was only his workers’ compensation lawyer.

MacPhail spoke and corresponded with Galbreath and Dunbar, both of whom provided him with settlement offers in writing. Later, MacPhail and Randell met at Galbreath’s office where MacPhail signed the Release, and Randell received $8,500 in checks from Galbreath and Dunbar. MacPhail testified at his deposition that he saw Randell sign the Release and that he gave Randell a copy of the signed Release, but Randell has denied that he signed the Release and denied that he received a copy of it. Afterward, Randell spoke to another lawyer, Burt Burnett, who then filed the instant suit against Galbreath and Dunbar.

II. Standard of Review

*2 The movant for traditional summary judgment must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Plunkett v. Conn. Gen. Life Ins. Co., No. 11–13–00129–CV, 2015 WL 3484985, at *4 (Tex. App.–Eastland May 29, 2015, pet. denied) (mem. op.).

We review summary judgment motions with a well-settled, multifaceted standard of review. Nixon v. Mr. Prop. Mgmt.Co., 690 S.W.2d 546, 548–49 (Tex. 1985).

If differing inferences may reasonably be drawn from the summary judgment evidence, a summary judgment should not be granted. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).

III. Analysis

Randell asserts that, because he presented evidence that he did not sign the Release, he raised a question of material fact on whether he had released his claims. He also asserts that the trial court could not have granted summary judgment on the ground that he gave MacPhail actual or apparent authority to sign the Release because Galbreath and Dunbar did not advance that ground in their motion and adduced no evidence to support it. Because the resolution of the second issue is dispositive, we begin there.

A. Issue Two: Randell cloaked MacPhail with actual authority to negotiate a settlement on his behalf and apparent authority to sign the Release that settled all of his claims against Galbreath and Dunbar.

In his second issue, Randell asserts that Galbreath and Dunbar did not assert actual or apparent authority as a ground for summary judgment and adduced no evidence to support that ground. We address each argument in turn.

1. Galbreath and Dunbar pleaded their affirmative defenses of actual and apparent authority and moved for summary judgment on those grounds.

*3 Randell asserts that the affirmative defenses of actual and apparent authority were not before the trial court. City of Houston, 589 S.W.2d at 677. On October 3, 2011, Galbreath and Dunbar answered Randell’s lawsuit and asserted the affirmative defense of release; they later supplemented their answers and asserted the defenses of actual and apparent authority. On November 8, 2011, Galbreath and Dunbar filed a motion for summary judgment with evidence. Later, they filed a supplemental motion for summary judgment with additional evidence and asserted that they had proven actual and apparent authority as a matter of law because Randell had retained MacPhail to negotiate a settlement of his claims against them. They also asserted that Randell had given actual and apparent authority to MacPhail to sign the Release in return for the $8,500 payment to Randell.

Later, on August 18, 2014, Galbreath and Dunbar filed a second supplemental motion with evidence. Their counsel sent two notices, one on August 28, 2014, and a second on September 5, 2014, that notified Randell that the summary judgment motion would be heard on September 29, 2014. On September 29, 2014, the trial court held a hearing on the motion for summary judgment and the supplements. Because Galbreath and Dunbar’s motion and two supplemental motions were filed well before the summary judgment hearing, which was held more than twenty-one days after notice had been provided to Randell, Galbreath and Dunbar’s motion and supplemental motions were before the court. See City of Houston, 589 S.W.2d at 677. We overrule the first part of Randell’s second issue and now analyze whether the summary judgment evidence conclusively established that he gave MacPhail actual or apparent authority to negotiate a settlement and sign the Release.

2. Randell gave MacPhail actual and apparent authority to negotiate and settle his claims against Galbreath and Dunbar and to sign the Release on his behalf.

In the second part of his second issue, Randell asserts that Galbreath and Dunbar adduced no evidence that he gave MacPhail actual or apparent authority to negotiate and settle his claims and sign the Release. Generally, a court will indulge every reasonable presumption to support a settlement agreement that is made by a duly employed attorney. Sw. Bell Tel. Co. v. Vidrine, 610 S.W.2d 803, 805 (Tex. Civ. App.–Houston [1st Dist.] 1980, writ ref’d n.r.e.) (“mere employment of counsel does not clothe the counsel with authority to settle the cause without specific consent of the client”)).

We note that there are two types of authority: actual and apparent. Id. “Actual authority is authority that the principal intentionally conferred on the agent or allowed the agent to believe was conferred.” Id. (citing Biggs v. U.S. Fire Ins. Co., 611 S.W.2d 624, 629 (Tex. 1981)).

*4 To establish such authority, the principal must make some manifestation to the agent (actual authority) or to a third party (apparent authority) that the principal is conferring such authority. Id. (citing Walden v. Sanger, 250 S.W.2d 312, 316 (Tex. Civ. App.–Austin 1952, no writ)).

In this case, Randell testified in a disqualification hearing and in a deposition that was taken in two parts; he also filed an affidavit in opposition to the summary judgment motion. During the disqualification hearing, when he was asked if he had hired MacPhail to recover additional money from the Galbreath Law Firm that he thought he was entitled to, Randell answered, “Yes.” He was also asked if it was correct that MacPhail was representing him when he was presented with the Release at Galbreath’s office, and Randell answered, “Correct.” When asked if it was correct that the Release of the claims that MacPhail was pursuing on Randell’s behalf was for claims against the Galbreath Law Firm, Randell answered, “Correct.”

In Randell’s deposition, when asked what MacPhail was authorized to do with respect to any claims that he had against the Galbreath Law Firm, Randell responded, “He was just seeking to get more money.” When asked what did he authorize MacPhail to do in pursuing a claim for Randell to get more money, Randell said that MacPhail “was just going to check into it and see how much more money he—that was owed to me.” When asked if he authorized MacPhail to communicate with Galbreath and Dunbar with respect to claims that Randell had against them for services they provided in his personal injury lawsuit, Randell responded, “[MacPhail] was my workers’ comp attorney and he was checking into it.” Randell explained that, by “it,” he meant, “To more money owed to me.” Still later, Randell confirmed that he had previously been asked the following question and that he had provided the following answer:

Q. .... My question: “You retained Mr. MacPhail to pursue a claim against the Galbreath Law Firm because you were dissatisfied with the representation received under the employment agreement that is Exhibit No. 1. Correct?”

And your answer was?

A.Correct.”

Randell said that he was asked by MacPhail to go to Galbreath’s office on November 12, 2010, to discuss the situation—“[t]o see about money and go from there.” With these statements by Randell, which are not contradicted by anyone else and are clear and unequivocal, we hold that MacPhail had received authority to negotiate, or at least Randell had led him to believe that he could negotiate, a proposed settlement of Randell’s claims with Galbreath and Dunbar. See Erdeljac, 94 S.W.3d at 256. We now turn to the issue of whether Randell authorized MacPhail to sign the Release on Randell’s behalf.

Randell maintains that he did not sign the Release and did not authorize MacPhail to sign it. Apparent authority is created by written or spoken words or conduct by the principal to a third party. Id. at 550–51.

*5 Although Randell stated that he did not sign the Release and that he did not know how his signature got on the Release, his signature is not required where his lawyer has signed on his behalf. See NationsBank, N.A. v. Dilling, 922 S.W.2d 950, 952–53 (Tex. 1996)).

Randell does not dispute that he and MacPhail met at Galbreath’s office on November 12, 2010, to discuss the situation; in Randell’s words, it was “to see about money and go from there.” Randell confirmed that he and MacPhail met there for “negotiations” with Galbreath “to discuss quite a few of the things due me” and “checking as to what was owed to me.” Randell said that, at Galbreath’s office, MacPhail discussed “stuff” with Randell, then talked to Galbreath in his office, then talked to Randell again, and then talked to Galbreath some more.

Randell testified that he read the Release “fairly” carefully when he was at Galbreath’s office. Randell said that MacPhail asked him to sign the Release on November 12, 2010. At that meeting, Randell said, “I told MacPhail if he had to have a signature on [the Release], he could sign it but I wasn’t going to sign it.” When asked if he had endorsed and cashed those checks, he replied, “Yes.”

MacPhail said that he explained the settlement and the Release to Randell at the meeting, that both signed the Release and got copies of it, and that Randell took the checks. Randell denied this occurred but conceded that he had received from MacPhail three checks—one from Dunbar and two from Galbreath—that totaled $8,500 and that, later, he had endorsed and cashed the checks. We hold that Galbreath and Dunbar proved as a matter of law that Randell retained MacPhail to negotiate a settlement of his claims against them. We also hold that Randell gave MacPhail actual authority, or at least acted with such a lack of ordinary care that he clothed MacPhail with an indicia of apparent authority, to sign the Release and settle Randell’s claims in return for $8,500 in checks from Galbreath and Dunbar.

3. Where Randell’s later affidavit directly contradicts his earlier testimony without explanation or states conclusions of law, his affidavit is insufficient to create a fact question.

We will now address Randell’s affidavit. A party cannot file an affidavit to contradict his own deposition testimony, without any explanation for the change in the testimony, in an attempt to create a fact issue and avoid summary judgment. Farroux, 962 S.W.2d at 111.

*6 “If a party’s own affidavit contradicts his earlier testimony, the affidavit must explain the reason for the change.” Pando, 242 S.W.3d at 79–80.

In addition, even if we are incorrect on the “sham affidavit,” Randell cannot use conclusory statements or statements that state legal conclusions to create a fact question. See Gail, 343 S.W.3d at 522.

B. The Release signed by MacPhail was a broad-form release of all Randall’s claims against Galbreath and Dunbar.

Galbreath and Dunbar assert that the Release signed by MacPhail was a full and complete release of all claims Randell had against them. They assert that Randell, in return for the $8,500 payment, gave up all claims he had against them that involved or arose out of their representation of him in the personal injury lawsuit. As we explain below, we agree.

A release is a contract, and its construction is governed by the general rules that relate to the construction of contracts. Id. at 393.

*7 In Texas, in order to release a claim, the releasing instrument must mention the claim to be released. Keck, Mahin & Cate v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 698 (Tex. 2000).

The Release in this case specifically provides as follows:

[Randell and Galbreath and Dunbar] previously entered into an agreement(s) ... in connection with [Randell’s] claim for damages resulting from injuries he sustained in a motor vehicle accident that occurred on or about December 16, 2005, and [Randell] alleges that [Galbreath and Dunbar] have breached the agreement(s) and that [Randell] has been damaged thereby, all of which is hereinafter referred to as the “Occurrence.”

The Release also provides that “[Randell] desires to dispose of the controversy and all disputes arising from the Occurrence” and that Randell accepted $8,500 “in exchange for a full, complete and unconditional release of all claims held or owned by [Randell] as a direct or indirect result of the Occurrence.” The Release provides that Randell “does hereby fully, completely and unconditionally release, acquit, and forever discharge” Galbreath and Dunbar. The Release further provides that all claims arising from “all actions, causes of action, liens, claims or demands of any nature whatsoever” are released. The Release also provides that all claims to recover damages “pursuant to a contract, statute (state or federal) or under common law, attorney’s fees, and any other form or category of damage, loss or expense of any nature whatsoever” are released. The Release further provides in bold capital letters that Randell released any and all claims and causes of action of whatever nature that he had or could have had against Galbreath and Dunbar. The Release contains the following acknowledgment:

THE RELEASING PARTY UNDERSTANDS AND AGREES THAT BY SIGNING THIS DOCUMENT, HE IS RELEASING ANY AND ALL CLAIMS AND CAUSES OF ACTION OF WHATEVER NATURE THAT HE MAY NOW OR HEREAFTER OWN OR HOLD AGAINST THE RELEASED PARTIES TO RECOVER FOR ANY DAMAGE, LOSS, EXPENSE OR INJURY OF ANY NATURE WHATSOEVER WHICH HAS RESULTED, OR WHICH MAY IN THE FUTURE RESULT, FROM THE OCCURRENCE, EVEN IF SUCH DAMAGE, LOSS, EXPENSE OR INJURY WAS CAUSED, IN WHOLE OR IN PART, BY THE NEGLIGENCE (WHETHER SOLE, CONCURRENT, ORDINARY AND/OR GROSS), MALICE OR OTHER ACTS OR OMISSIONS (WRONGFUL OR OTHERWISE) OF THE RELEASED PARTY.

Until set aside, a release that is valid on its face is a complete bar to any later action based on matters covered by the release. McCall v. Trucks of Texas, Inc., 535 S.W.2d 791, 794 (Tex. Civ. App.–Houston [1st Dist.] 1976, writ ref’d n.r.e.).

*8 In this case, Randell argued that he did not sign the Release and that he did not authorize MacPhail to sign the Release on his behalf, but as we previously explained, his signature was unnecessary where he had given MacPhail either actual or apparent authority to sign the Release. Because Randell advances no other evidence of a legal justification to set aside the Release, we hold, as a matter of law, that the Release is valid and enforceable. See Vera v. North Star Dodge Sales, Inc., 989 S.W.2d 13, 18 (Tex. App.–San Antonio 1998, no pet.) (holding that language “any and all liability regarding the purchase of a 1993 Mazda,” where purchase terms were not satisfied, released claims on vehicle purchase, unlawful debt collection, conversion, and wrongful repossession claims).

C. Conclusion

Galbreath and Dunbar have pleaded, adduced summary judgment evidence, and proven as a matter of law their affirmative defense of release because Randell granted MacPhail the authority to negotiate a settlement and sign the Release, which was a broad-form release of any and all claims, in return for a payment of $8,500 from Galbreath and Dunbar. We hold that the trial court did not err when it granted their summary judgment motion. We overrule Randell’s second issue on appeal. In light of this resolution of the second issue, which is dispositive, we need not address Randell’s first issue on whether he signed the Release.

IV. This Court’s Ruling

We affirm the judgment of the trial court.

Court of Appeals of Texas, Eastland.

LIBERTY INSURANCE CORPORATION, Appellant

v.

Mary Ann TARANGO, Surviving Spouse of Manuel Tarango, Deceased, Appellee

No. 11–15–00123–CV

|

Opinion filed October 20, 2016

On Appeal from the 118th District Court, Martin County, Texas, Trial Court Cause No. 6349

Attorneys & Firms

Charles E. Morse, for Liberty Insurance Corporation.

Chadwick Lee, S. Scott West, for Mary Ann Tarango, Surviving Spouse of Manual Tarango, deceased.

Panel consists of: Bailey, J.

MEMORANDUM OPINION

JIM R. WRIGHT, CHIEF JUSTICE

*1 This is an appeal from the judicial review of an administrative decision by a Texas Division of Workers’ Compensation Appeals Panel that affirmed the hearing officer’s denial of workers’ compensation benefits to Mary Ann Tarango, the surviving spouse of Manuel “Benny” Tarango, a deceased employee. After a bench trial, the trial court entered judgment in which it reversed the appeals panel decision and ordered that Mary Ann was the proper legal beneficiary of Benny and that she was entitled to workers’ compensation death benefits. Because we hold that the trial court improperly placed the burden of proof on Liberty Insurance Corporation to prove that Mary Ann abandoned Benny, we reverse and remand.

Benny sustained fatal injuries at work due to an explosion and fire. His surviving spouse, Mary Ann, filed a claim for death benefits. Liberty disputed Mary Ann’s claim. Liberty contended that Mary Ann was not the proper legal beneficiary because she abandoned Benny for more than one year preceding his death. A workers’ compensation hearing officer determined that Mary Ann was not the proper legal beneficiary, and the appeals panel affirmed the hearing officer’s decision. Mary Ann sought judicial review, and after a bench trial, the trial court entered judgment in favor of Mary Ann.

Liberty presents eight issues for our review. In its first issue, Liberty contends that the trial court misapplied Rule 132.3 of the Texas Workers’ Compensation Administrative Rules when it determined that Mary Ann was the proper legal beneficiary of Benny. Liberty argues in its second issue that the trial court erred when it placed the burden of proof on Liberty to prove abandonment when Section 410.303 of the Texas Labor Code provides that the burden of proof is on the party seeking judicial review of a decision of a Division of Workers’ Compensation Appeals Panel. Liberty asserts in its third issue that the trial court erred when it determined that abandonment was an affirmative defense that must be pleaded. In its fourth and fifth issues, Liberty challenges the legal and factual sufficiency of the evidence regarding the trial court’s finding that Mary Ann had good cause for her abandonment of Benny. In its sixth and seventh issues, Liberty challenges the legal and factual sufficiency of the evidence regarding the trial court’s finding that Mary Ann did not abandon Benny for more than one year preceding Benny’s death. And, in its eighth and final issue, Liberty argues that the trial court abused its discretion when it excluded the testimony of Florencia “Flo” Ortiz Stone and Elizabeth Perez regarding Benny’s divorce and marriage.

We will first address Liberty’s third issue in which it claims that the trial court erred when it determined that abandonment is an affirmative defense that must be pleaded. Mary Ann objected to Liberty asking any questions about or presenting any evidence of the issue of abandonment because Liberty had not pleaded the issue as an affirmative defense. Although the trial court found that abandonment was an affirmative defense that should be specifically pleaded, the trial court also noted that Mary Ann specifically addressed the issue of abandonment in her original petition. Because the trial court found that Mary Ann anticipated the defense of abandonment, it overruled Mary Ann’s objection and considered the issue of abandonment in its determination of whether Mary Ann was the proper legal beneficiary. Ultimately, the trial court found that Mary Ann did not abandon Benny or, if so, that she abandoned him with good cause. Thus, while Liberty’s argument may have merit based on our disposition of Liberty’s second issue that we discuss below, the issue of abandonment was litigated by the parties and was decided by the trial court. Therefore, at this juncture, the issue is moot. We overrule Liberty’s third issue.

*2 In Liberty’s second issue, it claims that the trial court improperly placed the burden on Liberty to prove that Mary Ann abandoned Benny. We agree. Section 408.182 of the Labor Code place the burden of proof of abandonment on the party asserting abandonment. Mary Ann further asserts that, after she established a legal marriage, Liberty was required to establish that Mary Ann had abandoned Benny and that only if Liberty presented clear evidence of abandonment did the burden shift to Mary Ann to present evidence to rebut Liberty’s evidence that she abandoned Benny. Mary Ann contends that the question before the trial court was whether Mary Ann was the proper legal beneficiary, not whether Mary Ann abandoned Benny.

The trial court’s judgment provides that “[t]he issue decided at the administrative level below and on which Judicial Review was sought by [Mary Ann] herein is as follows: Is Mary Ann Tarango the proper legal beneficiary of the deceased, Manuel Tarango, entitling her to death benefits?” Morales, 241 S.W.3d at 516. Here, the hearing officer specifically found that Mary Ann abandoned the marriage for more than one year immediately preceding Benny’s death, without good cause, and that she was not an eligible beneficiary for death benefits. The appeals panel affirmed the hearing officer’s decision.

As the trial court noted in its ruling on Mary Ann’s affirmative defense objection, Mary Ann specifically challenged the issue of abandonment in her original petition. In her original petition, she states that “[t]he adverse determination that Mary Ann Tarango disputes is the erroneous finding that she abandoned the Decedent for more than one year immediately preceding Decedent’s death without good cause.” Thus, the finding that Mary Ann specifically challenged was the finding that she abandoned Benny, and it was this issue that Mary Ann had the burden to prove by a preponderance of the evidence. The issue of whether Mary Ann was the proper legal beneficiary of Benny necessarily encompasses the issue of whether she abandoned Benny without good cause. See LAB. § 408.182 (a surviving spouse is an eligible spouse unless the spouse abandoned the employee).

The trial court specifically found that the burden of proof on the issue of abandonment was on Liberty. In addition, the trial court’s third conclusion of law was as follows: “Liberty Insurance Corporation did not prove by a preponderance of the evidence that Mary Ann Tarango abandoned her husband, Manuel “Benny” Tarango, within the meaning of 28 Tex. Admin. Code, Rule 132.3.” Because the burden of proof should have been placed on Mary Ann and not Liberty, the trial court erred.

We must next determine whether such error requires reversal. “No judgment may be reversed on appeal ... unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals.” TEX. R. APP. P. 44.1. Here, the trial court erred when it placed the burden of proof on the wrong party, with the result that the trial court could not make appropriate findings of facts and conclusions of law. The trial court’s findings and conclusions were made based on the incorrect determination that Liberty had the burden of proof. Furthermore, the trial court’s error affected the judgment because the trial court ruled in favor of Mary Ann based upon its determination that Liberty’s evidence did not meet a burden of proof that it did not have. We cannot speculate as to whether the trial court would have entered the same findings and conclusions, and ultimately the same judgment, if the burden of proof had been properly placed on Mary Ann. Therefore, we sustain Liberty’s second issue.

*3 Our disposition of this issue makes it unnecessary for us to review Liberty’s other issues on appeal. See TEX. R. APP. P. 47.1. Although generally we would also determine whether the evidence was legally sufficient to support the challenged findings because a finding of legally insufficient evidence would require rendition instead of remand, we cannot do so in this case because the party with the burden of proof was not required to prove her case by a preponderance of the evidence.

We reverse the judgment of the trial court and remand this cause to the trial court for further proceedings not inconsistent with this opinion.

Court of Appeals of Texas, Eastland.

IN RE AMERICRANE & EQUIPMENT, INC. d/b/a American Crane & Equipment

No. 11-16-00207-CV

|

Opinion filed August 4, 2016

Original Mandamus Proceeding

Attorneys & Firms

Bryan Wendt, for Americrane & Equipment, Inc. d/b/a American Crane & Equipment.

Panel consists of: Bailey, J.

MEMORANDUM OPINION

JIM R. WRIGHT, CHIEF JUSTICE

*1 Relator, Americrane & Equipment, Inc. d/b/a American Crane & Equipment, filed this mandamus action in which it asks us to instruct the Honorable John Smith, Judge of the 161st District Court of Ector County, Texas, to vacate his order by which he granted plaintiff Juan Enrique Garza’s motion to strike Relator’s designation of a responsible third party. We conditionally grant relief.

This proceeding arises out of a personal injury lawsuit filed by Garza, the real party in interest, against Relator, and other defendants not parties to this original proceeding, concerning an injury that Garza suffered at a well site. Garza alleged that, at the time of his injury, Pioneer Natural Resources Company and Pioneer Natural Resources USA, Inc. were the operators. Pioneer contracted with Relator to provide a crane, a crane operator, and a rigger to assist in removing three “frac stacks”1 that were located at the site. Additionally, Pioneer contracted with Priority2 for Priority to provide roustabouts to disassemble the frac stacks. Priority Energy Services, LLC employed Garza and Jorge Fernandez as roustabouts, and Garza and Fernandez were assisting in “closing down three wells” at the time of the incident.

Garza alleged in his pleadings that Pioneer, through the person acting as its “company man,” told both the crane operator, Larry Dale Dunlap, and the rigger, Kenneth Ray Register, to place the frac stacks on the ground despite Dunlap’s and Register’s concerns that placing the frac stacks on the ground was unsafe. After Dunlap set down the third and final frac stack, Dunlap allegedly gave Garza and Fernandez a signal to indicate that they could move in to work on the frac stacks that had been removed. Garza alleged that Register did not properly loosen the chains and remove them from the last frac stack and that, when Dunlap lifted the chains with the crane, the chains got tangled up on that frac stack and knocked it over, causing it to fall on Garza’s leg and foot.

Garza alleged claims of negligence and gross negligence against Relator, Pioneer, and the consulting company for which the “company man” worked. He sought $1,000,000 in damages and also sought to recover punitive damages.

In July 2014, Relator filed a motion for leave to designate Pioneer and Priority as responsible third parties. The trial court granted the motion. In February 2016, Garza filed a motion to strike Relator’s designation of Priority Energy Services, LLC as a responsible third party; Garza did not challenge Relator’s designation of Pioneer or Relator’s designation of Priority’s other named entities. According to Relator and Garza, Pioneer subsequently settled and was dismissed from the suit. Relator responded to the motion, and after a hearing, the trial court granted Garza’s motion to strike.

*2 When we review a petition for writ of mandamus, we determine whether the trial court committed a clear abuse of discretion and, if so, whether there is an adequate remedy by appeal. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–242 (Tex. 1985).

The Texas proportionate responsibility statute provides a framework for apportioning percentages of responsibility in the calculation of damages in any cause of action based on tort in which more than one person or entity, including the plaintiff, is alleged to have caused or contributed to causing the harm for which the recovery of damages is sought. CIV. PRAC. & REM. § 33.011(6). A defendant may designate a person as a responsible third party by filing a motion for leave with the trial court. Id. § 33.004(a). Unless another party files an objection to the motion for leave, the trial court must grant leave to designate the named party. Id. § 33.004(f).

A party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated party is responsible for any portion of the plaintiff’s alleged damages. Id. § 33.004(l). A party may not challenge the sufficiency of the evidence to support the designation until after there has been adequate time for discovery. Id. The trial court must grant the motion to strike “unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person’s responsibility for the claimant’s injury or damage.” Id. The Twelfth Court of Appeals has concluded that, in order to defeat a motion to strike, a defendant must produce more than a scintilla of evidence to support a finding that the responsible third party was negligent and, thus, responsible for a portion of the plaintiff’s injuries. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). We agree with the framework used by the Twelfth Court and will use it to evaluate whether Relator produced sufficient evidence to raise a genuine issue of fact.

In its motion for leave to designate Priority as a responsible third party, Relator alleged that Priority was negligent because it failed to properly train and supervise Garza, failed to perform the duties of site supervisor and lift director, failed to restrict the areas around the suspended loads and other dangerous areas, failed to control access and traffic to areas around the suspended loads and unstable equipment, and failed to disassemble the “well head equipment before taking it off the well head.” Garza alleged in his motion to strike that Relator had “no evidence that any act or omission, on the part of Priority, was a substantial factor in causing the injury ‘without which the harm would not have occurred.’ ” Relator attached excerpts from six depositions, an expert report, and several other documents to its response to Garza’s motion to strike.

*3 Garza asserts in his response to the petition for writ of mandamus that Relator, in its response to Garza’s motion to strike, limited its allegations of negligence against Priority to three grounds of negligence: (1) that Priority failed to provide a reasonably safe workplace and was negligent when it directed Relator to place the frac stacks on the ground; (2) that Priority failed to properly train its employees; and (3) that Priority failed to properly supervise its employees. We do not agree that Relator necessarily limited itself to those specific grounds. Although Relator used the three grounds cited by Garza as headings in its response to Garza’s motion to strike, Relator argued within those three sections, in addition to the allegations in the headings, that Priority failed to perform its responsibility as lift director as defined by the standard for “Mobile and Locomotive Cranes” published by the American Society of Mechanical Engineers, that Priority failed to designate an employee as a gatekeeper to keep employees away from the frac stacks until the chains cleared, that Priority failed to ensure that crews and crane personnel were communicating about when the area was clear to enter, and that Priority failed to ensure that it was safe to enter and work in the area. Each of these arguments further supports one of the original five grounds on which Relator claimed that Priority was negligent. The only ground that Relator did not address in its response was that Priority failed to disassemble the “well head equipment before taking it off the well head.” Based on the structure of Relator’s response and based on Garza’s characterization of the negligence issues, it appears to us that there are two main grounds of negligence at issue: (1) that Priority negligently directed Relator to place the frac stacks on the ground and (2) that Priority was negligent because it failed to properly train and supervise its employees.

After reviewing the response and supporting documents, we find that Relator produced sufficient evidence to raise a genuine issue of fact regarding Priority’s responsibility for Garza’s injuries. Although Garza is correct in his assertion that the evidence does not show who specifically told Dunlap and Register to place the frac stacks on the ground over their safety concerns, both Dunlap and Register testified in their depositions that it was someone from Pioneer or Priority. In addition, Relator’s expert, Matthew Gardiner, concluded that Pioneer or Priority was the responsible party regarding the decision to place the frac stacks on the ground and that Priority was responsible for the frac stacks once they were on the ground. Dunlap and Register specifically remembered that they were told to put them on the ground because “they do it all the time.” The evidence shows that the frac stacks belonged to Priority, that it was Priority’s responsibility to remove the parts from the frac stacks and prepare them for use at a future site, and that it was a common practice for Priority employees to set the frac stacks on the ground. Fernandez testified in his deposition that, before the accident, they set the frac stacks on the ground or on a trailer but that, after the accident, Priority prohibited the frac stacks from being set on the ground. Jay Miller, Pioneer’s safety supervisor, testified that he told Priority to never come back to one of Pioneer’s well sites without stands for the frac stacks.

We do not agree, as Garza suggests, that the evidence is equally consistent with two facts and, therefore, does not rise above a scintilla of proof of either fact. See Havner, 953 S.W.2d at 711. Relator met its burden.

Relator also met its burden as to its claim that Priority was negligent because it failed to properly train and supervise its employees. Dunlap testified that it was Priority’s responsibility to monitor the “hot zone” and to train and instruct its roustabouts not to go in the “hot zone” during the lift. He explained that they should have been trained not to walk under a suspended load or be around a suspended load. Register offered similar testimony and explained that Priority should have told Garza not to work on the frac stacks when they were on the ground as they were on the day of the incident. Miller testified that Priority and Relator were responsible for communicating when the area was clear to enter and that Priority was responsible for designating one employee as the gatekeeper of the “hot zone.” Gardiner specifically found that “Priority should have trained their personnel to wait until the rigging was clear of the load before beginning their work” and should have trained Garza and Fernandez to recognize the potential for a frac stack, with a high center of gravity, to become unstable when it was not placed on “a firm, level, and stable supporting surface.”

*4 In addition, Priority’s Incident Investigation Report contained information to show that one of the key factors that led to the incident was a failure to identify hazards and risks and that Garza should have made sure all lifting tasks were completed before returning to the work area. The report also contained a list of several recommended actions that could be taken to prevent the recurrence of an accident, such as installing a guard or safety device, retraining to the existing standard, and retraining on hazard recognitions. Although the incident report provides that the accident could have been prevented if existing company polices and jobsite standards had been followed, Garza and Fernandez both testified that they had not been trained to not go near the frac stacks that were on the ground until the rigging chains had been lifted above the frac stacks. The evidence provided by Relator in its response to Garza’s motion to strike is more than sufficient to raise a genuine issue of fact regarding Priority’s responsibility for the injury. Therefore, we hold that the trial court clearly abused its discretion when it found otherwise.

We now address the question of whether Relator has shown that it does not have an adequate remedy by appeal. Relator cites to our analysis in In re Lewis Casing Crews, Inc., to support its contention that a direct appeal from the trial court’s erroneous grant of Garza’s motion to strike would not provide Relator with an adequate remedy. See In re Lewis Casing Crews, Inc., No. 11-14-00137-CV, 2014 WL 3398170, at *3 (Tex. App.–Eastland July 10, 2014, orig. proceeding) (mem. op.) (“[W]e agree with the sound reasoning of those courts that have concluded that there is no adequate remedy by appeal in such cases.”). Specifically, Relator contends that mandamus relief will preserve its statutory right to demand that the trier of fact determine the percentage of Priority’s responsibility for Garza’s injury and that, although this court could review the trial court’s erroneous ruling in a direct appeal, the denial of Relator’s right to submit Priority’s responsibility could skew the proceedings. Relator also contends that it is beyond dispute that there would be a substantial waste of time and money if the parties were required to proceed through trial and then proceed through the appellate process only to retry the case.

We determine the adequacy of an appellate remedy by balancing the benefits of mandamus review against the detriments. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). In evaluating the benefits and detriments of mandamus review, we look to whether such review preserves important substantive and procedural rights, whether it allows the appellate court to give direction to the law that would otherwise prove elusive in appeals from final judgments, and whether it spares the parties and the public the time and money wasted by the eventual reversal of improperly conducted proceedings. Id.

Our analysis in Lewis Casing Crews provides guidance in how we should weigh the benefits in this case. Here, as in Lewis Casing Crews, the plaintiff suffered an injury while working in the oil field, and one of the named defendants moved to designate the plaintiff’s employer as a responsible third party. See Id. at *4. Here, too, the plaintiff has sued to recover $1,000,000, and the parties clearly dispute which party is liable and to what extent each party is liable for Garza’s injuries, as evidenced by the motions and responses we have discussed regarding the designation of responsible third parties. Unless we grant relief, Relator will lose its statutory right to have the jury in the upcoming trial consider Priority’s alleged negligence when it apportions percentages of responsibility.

In Lewis Casing Crews, we also discussed how the relator would not be able to seek contribution from the plaintiff’s employer due to laws regarding workers’ compensation benefits and how the trial court’s error in denying the motion for leave may not be adequately addressed by an appeal. In re Brokers Logistics, Ltd., 320 S.W.3d 402, 408–09 (Tex. App.–El Paso 2010, orig. proceeding)). The same is true for Relator here.

*5 And, finally, we found that there would be a substantial waste of the parties’ time and money if they were required to proceed to trial without the trial court’s error being corrected—only to have the trial court’s judgment reversed on direct appeal and then have to retry the case. Id. We recognized that the additional time and expense of conducting a second trial did not, standing alone, justify our issuance of a writ of mandamus; however, we concluded that the substantial waste of resources combined with the possibility that the relator might be unable to successfully prosecute an appeal from an adverse judgment did justify a grant of relief. Id. All of the same considerations that were present in Lewis Casing Crews are present in this case; thus, we similarly conclude that Relator lacks an adequate remedy by appeal.

We conditionally grant Relator’s petition for writ of mandamus, and we order Respondent to vacate its June 27, 2016 order in which he granted Garza’s motion to strike Relator’s designation of Priority as a responsible third party. We note that Relator also filed a motion for an emergency stay in this court. The record shows that this case has been pending since April 2014 and that the trial is set for August 15, 2016. Because Relator’s motion for leave to designate was first granted in August 2014 and because we issue this opinion prior to the trial setting, we deny Relator’s motion for an emergency stay. A writ of mandamus will issue only in the event that Respondent fails to comply with our instructions by August 10, 2016.

Footnotes

1

The parties refer to this wellhead component as a “frac stack,” “goat head,” “well head” or “stack.” Relator’s expert refers to the component as a “frac stack,” which is comprised of a valve, goat head, and cap. For ease of reference, we will refer to it as a frac stack as the expert did.

2

Priority had several named entities: Priority Energy Services, LLC; Priority Production Services, LLC; and Priority Equipment Services, LLC. Relator listed all three entities in its designation of Priority as a responsible third party. The record is unclear as to which Priority entity entered into the contract with Pioneer.

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