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Court of Appeals of Texas, Tyler.

CITY OF DALLAS, a Self-Insured Employer, Appellant

v.

Gregory D. THOMPSON, Appellee

NO. 12-19-00036-CV

|

Opinion delivered March 25, 2020

APPEAL FROM THE 173RD, DISTRICT COURT, HENDERSON COUNTY, TEXAS

Attorneys & Firms

Dan C. Kelley, Austin, for Appellant.

Wm. Randell Johnson, Plano, for Appellee.

Panel consisted of Neeley, J.

OPINION

Brian Hoyle, Justice

*1 City of Dallas, a self-insured employer, brings this permissive interlocutory appeal1 from the trial court’s partial summary judgment rendered in Dallas’s suit for judicial review of a final decision and order of the Texas Department of Insurance, Division of Workers’ Compensation (DWC). The trial court determined that Dallas is not relieved from liability for past employee Gregory D. Thompson’s workers’ compensation claim. In two issues, Dallas contends the trial court erred in granting Thompson’s cross-motion for summary judgment and denying Dallas’s motion for summary judgment. We affirm.

BACKGROUND

Thompson was employed by Dallas as a firefighter. On August 18, 2010, Thompson reported to Dallas that he received a confirmed diagnosis of testicular cancer. He reported that the cause of his injury was exposure to carcinogens during his career as a firefighter. The date of injury is listed as July 31, 2010. Dallas filed its “PLN-1,” or plain language notification, with DWC on August 19, 2010, denying compensability and liability and refusing to pay benefits. “Employer’s First Report of Injury or Illness,” dated August 18, 2010, was filed with DWC on August 20, 2010.

Administrative review of the case by DWC proceeded pursuant to requirements of the Texas Workers’ Compensation Act. On April 4, 2016, Thompson requested a benefit review conference (BRC) disputing the denial of the compensability of the claim and disability. The BRC was held August 17, 2016, after which four issues remained unresolved. A two-day contested case hearing (CCH) began in October and was completed in December 2016. The Administrative Law Judge (ALJ) determined that Dallas’s August 19, 2010 PLN-1 was sufficient to contest compensability of the claimed injury. Further, he determined that Thompson sustained a compensable injury in the form of an occupational disease with a date of injury of July 31, 2010. Finally, the ALJ determined that, although Thompson did not file a claim for compensation within one year of the injury as required by the Texas Labor Code, and did not have good cause for failing to do so, Dallas waived this defense because it did not raise the defense within a reasonable time period after it became available. After a review by a DWC appeals panel, the ALJ’s decision and order became final.

Thereafter, Dallas sought judicial review of the DWC ruling, disputing certain findings of fact and conclusions of law. Further, Dallas alleged that the ALJ committed reversible error by erroneously raising the issue of whether Dallas waived the defense of Thompson’s failure to timely file his claim. Alternatively, Dallas asserted that it raised the defense of Thompson’s failure to timely file his claim for compensation within a reasonable period of time after it became available.

Thompson filed a counterclaim complaining of the ALJ’s determination that the PLN-1 was sufficient to contest compensability and that Thompson did not file a claim with the DWC within one year of the injury, and asserting that if he did not file within one year, good cause existed for not doing so. Thompson also requested Dallas pay his attorney’s fees.2

*2 Dallas filed a motion for summary judgment based on the affirmative defense that Thompson failed, without good cause, to file a claim for compensation with DWC within one year of the injury. Dallas argued that it did not waive the defense and the ALJ erroneously added the waiver issue.

Thompson filed a cross-motion for summary judgment asserting that the evidence demonstrates as a matter of law that Dallas waived its affirmative defense that Thompson did not file his claim within one year of the injury, Dallas waived its right to contest compensability and disability, and Thompson is entitled to final summary judgment.

In a partial judgment, the trial court denied Dallas’s motion for summary judgment and granted Thompson’s cross-motion for summary judgment. The court ordered that Dallas is not relieved from liability because of Thompson’s failure to file a claim within one year of injury, that Dallas waived the defense of Thompson’s failure to timely file a claim because Dallas did not raise the defense within a reasonable period of time after it became available, and affirmed DWC’s determinations of the one-year claim defense and carrier waiver issues in favor of Thompson. The court found that the one-year defense and its waiver are controlling questions of law as to which there is a substantial ground for difference of opinion, granted permission to appeal the partial judgment, and ordered a stay of the proceedings pending appeal.3 The partial judgment states that matters related to the compensability of the injury, disability issues, and Thompson’s district court attorney’s fees remain undecided and pending in the trial court. This proceeding followed.

SUMMARY JUDGMENT

In its second issue, Dallas asserts the trial court erred in denying Dallas’s motion for summary judgment and granting Thompson’s cross-motion for summary judgment because Dallas did not waive its one-year defense. Dallas argues that the waiver issue was not identified at the BRC as an issue raised but not resolved, and the ALJ erroneously added the waiver issue at the CCH. Dallas contends the statutory requisites dictating when an unidentified issue may be raised at the CCH, if the parties consent or the ALJ determines that good cause existed for not raising the issue at the conference, were not met here. Dallas contends the waiver issue was not tried by consent and, no statute or rule requires Dallas to raise the defense “within a reasonable period of time after it became available” as found by the ALJ.

Standard of Review

We review the trial court’s decision to grant summary judgment de novo. Amedisys, Inc. v. Kingwood Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014).

To determine if there is a fact issue, we review the evidence in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could do so and disregarding contrary evidence and inferences unless reasonable jurors could not. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).

*3 When both parties move for summary judgment and the trial court grants one motion and denies the other, the appellate court should review both parties’ summary judgment evidence and determine all questions presented. Id.

Applicable Law

The Texas Workers’ Compensation Act provides exclusive compensation benefits for the work-related injuries of a subscribing employer’s employees. TEX. LABOR CODE ANN. §§ 410.251-.308.

An employee must notify his employer of an injury that is an occupational disease not later than the thirtieth day after the date the employee knew or should have known that the injury may be related to his employment. Id. § 409.001(a). The employee is also required to file a claim for compensation with DWC, within one year after the date he knew or should have known his injury is an occupational disease related to his employment. Id. § 409.003. The one-year period for filing begins to run when the employer files its first report of injury with DWC. Id. § 409.008. The failure to file a claim for compensation with DWC relieves the employer of liability unless good cause exists for failure to file a claim in a timely manner, or the employer or its insurance carrier does not contest the claim. Id. § 409.004.

Waiver may be asserted as an affirmative defense against a party who intentionally relinquishes a known right or engages in intentional conduct inconsistent with claiming that right. Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 281 (Tex. App.–Houston [1st Dist.] 2004, pet. dism’d) (op. on reh’g).

Analysis

As required by statute, the benefit review officer identified the issues not resolved at the BRC. See TEX. LABOR CODE ANN. § 410.031. Citing Section 409.004, the officer named as an issue the question of whether Dallas is relieved from liability because of Thompson’s failure to file a claim within one year of the injury. However, whether Dallas waived its right to claim that defense is not named as an issue remaining to be resolved.

Section 410.151(b) provides, in part, that an issue not raised at the BRC may not be considered at a CCH unless the parties consent or if the ALJ determines that good cause existed for not raising the issue at the BRC. Id. § 410.151(b). The ALJ added the issue at the CCH, stating that the issue was actually litigated. Dallas asserts that it objected to trying the waiver issue, and the ALJ erroneously added the issue. Thompson asserts the ALJ correctly considered the carrier waiver issue.

*4 The summary judgment evidence includes the transcript of the two hearings before the ALJ. Thompson was the only witness, and he did not make any comment that can be construed as having anything to do with whether Dallas waived its complaint that he did not timely file a claim. At the first hearing, Thompson offered thirty-three exhibits, Dallas offered thirteen exhibits, and the ALJ presented four exhibits.4 None of the parties’ exhibits were identified. The ALJ stated that he was including as evidence the benefit review officer’s report, a “required information form,” “a list of things that’s been filed in the case,” and a “screenshot from the first sequence in the DRCD,” which is dispute resolution contact data. No evidence was offered at the second hearing. The exhibits admitted in the first hearing are not included in the appellate record.

Dallas’s motion for summary judgment makes no mention of the CCH exhibits. Thompson, in his cross-motion for summary judgment, identified five of his summary judgment exhibits as having been admitted at the CCH. Assuming Dallas provided a complete CCH record in the trial court, in the absence of the CCH exhibits in the appellate record, we cannot say that the waiver issue was not tried by consent. If pertinent summary judgment evidence considered by the trial court is not included in the appellate record, we must presume that the omitted evidence supports the trial court’s judgment. Grant v. Espiritu, 470 S.W.3d 198, 203 (Tex. App.–El Paso 2015, no pet.). Accordingly, we conclude that Dallas did not meet its burden to show as a matter of law that the ALJ erroneously added the waiver issue.

Next, Dallas contends the issue of whether Dallas waived its defense that Thompson failed to timely file his claim “has no basis in law.” The ALJ determined that Dallas waived its defense because it was not raised within a reasonable period of time after it became available. Dallas argues that no statute or rule provides for application of this standard, and the ALJ’s creation of a time period to establish waiver of an affirmative defense is arbitrary and capricious and must be stricken. We disagree.

There is no statute or rule that explicitly identifies the point at which an employer or carrier loses its right to assert the affirmative defense of a claimant’s failure to file his claim in one year from the date of the injury. Thompson does not try to defend the ALJ’s “within a reasonable period of time after it became available” language. Instead, Thompson asserts that the “one year to file a claim” dispute concerns payment of benefits and is therefore a compensability dispute that must be raised in a timely PLN-1, and since Dallas did not do that, the defense is waived. Apparently, he relies on Section 409.021(c) which states that if the carrier does not contest compensability of an injury before the sixtieth day after it is notified of the injury, it waives the right to contest compensability. See Section 409.021(c), Dallas responds that the one-year defense is not a denial based on non-compensability or lack of coverage; it is an assertion of “relief of liability.” We decline to address the question of whether the one-year defense is an issue of compensability.

*5 In accordance with the Code Construction Act, we defer to the Workers’ Compensation Commission’s interpretation of its own rules, as long as its interpretation is reasonable. 409.022).

Contrary to Dallas’s assertion that the ALJ’s determination was an arbitrary ad hoc ruling, Workers’ Compensation appeals panels have for years determined that the defense of the claimant’s failure to file within one year must be raised in a reasonable period of time. See Appeal No. 013100, 2002 WL 34360742, at *2 (Tex. Work. Comp. Com. Feb. 6, 2002).

Thompson first reported his injury to Dallas on August 18, 2010. Dallas’s first report of injury was filed with DWC on August 20, 2010. Therefore, the late-filing defense became available to Dallas on August 20, 2011. See Trelltex, Inc., 494 S.W.3d at 790.

Appeals panel decisions have held that matters first disputed at a BRC on grounds that would have been apparent within a short time after the one-year anniversary of the date of injury have not been raised within a reasonable amount of time. See 2003 WL 22293520, at *2 (where notice of injury and carrier’s refusal were filed before one year anniversary of date of injury, and claim was untimely when filed, complaint of untimeliness made four months after claim was filed, at BRC, was not made within a reasonable time).

The record supports the ALJ’s determination that Dallas did not raise its defense regarding Thompson’s failure to file a claim within one year of his injury within a reasonable amount of time after it became available. Therefore, Thompson showed as a matter of law that Dallas waived its one-year defense. Accordingly, the trial court did not err in denying Dallas’s motion for summary judgment and granting Thompson’s cross-motion for summary judgment. See TEX. R. APP. P. 47.1.

DISPOSITION

*6 Having determined that the trial court properly denied Dallas’s motion for summary judgment and properly granted Thompson’s cross-motion for summary judgment, we affirm the trial court’s partial summary judgment.

Footnotes

1 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d) (West Supp. 2019).
2 The trial court granted Dallas’s plea to the jurisdiction as to Thompson’s Section 408.221(c) claim for attorney’s fees on the basis of governmental immunity. Thompson appealed that ruling and this court affirmed the trial court’s order. See City of Dallas v. Thompson, No. 12-19-00032-CV, 2019 WL 2710247, at *2 (Tex. App.–Tyler June 28, 2019, no pet.) (mem. op.).
3 See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d).
4 The transcript of the hearing reflects that the ALJ presented four exhibits while the ALJ’s decision states that he presented two exhibits.

Court of Appeals of Texas, Tyler.

THOMAS OILFIELD SERVICES, LLC/Cross-Appellee, Appellant

v.

Albert CLARK/Cross-Appellant, Appellee

NO. 12-18-00344-CV

|

July 10, 2019

APPEAL FROM THE 97TH JUDICIAL DISTRICT COURT MONTAGUE COUNTY, TEXAS, JACK ARNOLD MCGAUGHEY, JUDGE

Attorneys & Firms

Stafford Davis, for Appellant.

John R. Lively, for Appellee.

Panel consisted of Neeley, J.

MEMORANDUM OPINION

Brian Hoyle, Justice

*1 Thomas Oilfield Services, L.L.C. (TOS) appeals the judgment in favor of Albert Clark. In eight issues, it challenges the sufficiency of the evidence supporting the judgment. In a single issue on cross appeal, Clark urges the trial court erred in denying his claim for attorney’s fees. We reverse and render.

BACKGROUND

Clark was employed by TOS in May 2015. His duties included overseeing TOS’s production operations crews. Clark claims that he suffered heat stroke while working for TOS in July 2015, which lead to the onset of seizures. Clark contacted an attorney to pursue filing a workers’ compensation incident report. Shortly thereafter, according to Clark, TOS terminated his employment.

Clark sued TOS for (1) breaching his employment contract, and (2) violating the Texas Labor Code by retaliating against him for retaining counsel to pursue a workers’ compensation claim. Clark later moved for summary judgment, claiming entitlement to judgment as a matter of law on both his breach of contract and retaliatory discharge claims. TOS responded to the motion. Clark filed a reply to TOS’s response and objected to TOS’s summary judgment evidence. Following a hearing, the trial court sustained Clark’s objections to TOS’s evidence and granted summary judgment for Clark. TOS appealed to this Court and we held that the summary judgment was improper and fact issues existed on both Clark’s breach of contract and retaliatory discharge claims.1 Accordingly, we reversed and remanded to the trial court.

On remand, Clark amended his petition to include a claim for promissory estoppel. TOS filed a motion for summary judgment, which the trial court granted in part. The trial court ordered that Clark could not recover attorney’s fees with respect to his breach of contract and promissory estoppel claims.

Subsequently, following presentation of evidence during a jury trial, TOS moved for a directed verdict on all of Clark’s claims. The trial court granted TOS’s motion with respect to the malice portion of Clark’s retaliatory discharge claim. The remaining claims were submitted to the jury. The jury found that (1) no employment contract existed between Clark and TOS, and (2) TOS did not retaliate against Clark for filing a worker’s compensation claim or hiring an attorney. However, the jury found in favor of Clark on his promissory estoppel claim and awarded $81,425.43 in damages to Clark.

The trial court entered judgment in accordance with the jury’s verdict. TOS filed a motion to disregard the jury’s findings on the promissory estoppel claims. Following a hearing, the trial court denied the motion but reduced the amount of prejudgment interest. This appeal and cross appeal followed.

SUFFICIENCY OF THE EVIDENCE

In its eight issues, TOS challenges the legal sufficiency of the evidence supporting the jury’s verdict and the trial court’s judgment. The first and second issues contend the evidence is legally insufficient to support the damages award for promissory estoppel. Issues three, four, five, six, seven, and eight urge the evidence is legally insufficient to support the elements of promissory estoppel. Because they are dispositive, we address issues one and two first.

Standard of Review

*2 A party who challenges the legal sufficiency of the evidence to support an issue upon which it did not have the burden of proof at trial must demonstrate on appeal that there is no evidence to support the adverse finding. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005).

Applicable Law

Promissory estoppel is a cause of action recognized in Texas that requires detrimental reliance on the part of the promisee. See Garcia v. Lucero, 366 S.W.3d 275, 280 (Tex. App.—El Paso 2012, no pet.). The elements of promissory estoppel are (1) a promise, (2) foreseeability of reliance thereon, and (3) substantial reliance by the promisee to his detriment. Id.

In an action for promissory estoppel, the plaintiff can recover only reliance damages. See Mistletoe Express Serv. of Okla. City, Okla. v. Locke, 762 S.W.2d 637, 638-39 (Tex. App.—Texarkana 1988, no pet.).

Analysis

TOS contends the evidence is legally insufficient to support the jury’s damages award on Clark’s promissory estoppel claim because the evidence demonstrates that Clark had no out-of-pocket expenditures and, as a result, no reliance damages.

The evidence introduced at trial is undisputed. At trial, Clark urged that he relied on TOS’s alleged promise of employment when he quit his job with an annual salary of $150,000. He testified as follows:

Q: All right. So let’s go down to the employment record at the bottom. This is where you tell who you were working for, correct?

A: Yes, sir.

Q: And it says reason for leaving: POS, correct?

A: Yes, sir.

Q: You could have put anything you wanted to write down there, correct?

A: Yes, sir.

Q: And you didn’t write that you were leaving because of a promise of employment by TOS, did you?

A: No, sir.

Q: Okay. And you wrote -- and you chose to write that down because you were leaving Tank One because it was a POS, correct?

A: Yes.

Q: Okay. Now, you left in May of 2015, correct?

A: Correct.

Q: And you immediately went to work for TOS?

A: Yes, sir.

Q: Did you spend any money out of your own pocket in conjunction with your move from Tank One to TOS?

A: No, sir, I don’t believe so. I don’t understand the question.

Q: So was there any money that you spent moving from Tank One to TOS out of your own pocket?

A: No, sir.

Q: No out-of-pocket expenditures in the move?

A: No, sir.

Q: You didn’t have to buy uniforms or anything?

A: I never received uniforms.

Q: Okay. So there was no money spent by you in reliance on the promise – you’re [sic] alleged promise of employment by TOS, correct?

*3 A: Correct.

No evidence of any expenditures made by Clark in reliance on TOS’s employment offer was offered or admitted into evidence.

Nevertheless, Clark urges that an award of the salary he abandoned by quitting his job and beginning employment with TOS constitutes reliance damages. According to Clark, reliance damages encompass such “foregone opportunities” and an award of reliance damages is the only way to restore him to the position he would have been in had he not relied on TOS’s promise. However, none of the cases cited by Clark mention any such “foregone opportunity” or support his argument; to the contrary, legal authority makes clear that reliance damages are intended to compensate a plaintiff for out-of-pocket expenditures made in reliance on a promise. See Frost Crushed Stone Co., Inc. v. Odell Geer Const. Co., Inc., 110 S.W.3d 41, 47 (Tex. App.—Waco 2002, no pet.). We decline to expand the definition of reliance damages to encompass damages for foregone opportunities.

As set forth above, the evidence at trial showed, and the jury found, that Clark chose to leave his prior job to accept at-will employment at TOS. The evidence, particularly Clark’s own testimony, further demonstrated that Clark had no out-of-pocket expenditures in making that employment change. Clark admitted that no such expenditures existed and did not offer any evidence of such expenditures. Again, no evidence of reliance damages was introduced at trial. Accordingly, the evidence at trial would not enable reasonable and fair-minded people to reach a conclusion that Clark is entitled to reliance damages. See TEX. R. APP. P. 47.1.

DISPOSITION

*4 Having sustained TOS’s first and second issues, we reverse the judgment of the trial court and render a take nothing judgment in favor of TOS.

Footnotes

1 Thomas Oilfield Servs, L.L.C. v. Clark, No. 12-16-00207-CV, 2017 WL 2265683 (Tex. App.—Tyler May 24, 2017, no pet.) (mem. op.).
2 In his cross-appeal, Clark urges that the trial court erred in granting summary judgment and barring him from recovering attorney’s fees. Because we hold that Clark cannot recover on his promissory estoppel claim, he is no longer a prevailing party and we need not address this issue. See Section 38.001’s most basic requirement is that the party seeking attorney’s fees must first prevail on a valid contract claim.”).

Court of Appeals of Texas, Tyler.

CITY OF DALLAS, a Self-Insured Employer, Appellant/Cross-Appellee

v.

Gregory D. THOMPSON, Appellee/Cross-Appellant

NO. 12-19-00032-CV

|

Opinion delivered June 28, 2019

APPEAL FROM THE 173RD JUDICIAL DISTRICT COURT, HENDERSON COUNTY, TEXAS. Dan Moore, Judge

Attorneys & Firms

Dan C. Kelley, for Appellant.

Leslie R. Casaubon, for Appellee.

Panel consisted of Neeley, J.

MEMORANDUM OPINION

James T. Worthen, Chief Justice

*1 This is an interlocutory appeal from the trial court’s ruling on City of Dallas’s plea to the jurisdiction filed in Dallas’s suit for judicial review of a final decision and order of the Texas Department of Insurance, Division of Workers’ Compensation (DWC). The plea to the jurisdiction complains of counterclaims filed by Gregory D. Thompson, a past employee who claimed workers’ compensation benefits.

Dallas and Thompson each appeal the portions of the trial court’s ruling on Dallas’s plea to the jurisdiction that are adverse to that party. In two issues, Dallas asserts that the trial court lacks jurisdiction over Thompson’s counterclaims because he failed to timely file them, making the administrative rulings on his workers’ compensation claim final as a matter of law. In one issue, Thompson asserts the trial court erred in granting Dallas’s plea to the jurisdiction as to his counterclaim for attorney’s fees. We affirm.

BACKGROUND

A DWC hearing officer determined that Thompson sustained a compensable injury while employed by Dallas, a self-insured employer, and ordered Dallas to pay benefits. Dallas’s administrative appeal resulted in finality of the hearing officer’s decision and order. Dallas filed suit for judicial review of the hearing officer’s determinations and final decision of the DWC. Thompson filed counterclaims complaining of the DWC’s determination that Dallas’s notice of denial of compensability was sufficient to contest compensability of the claimed injury and its determination that Thompson did not have good cause for failing to file a claim within one year of the injury. Thompson also requested attorney’s fees.

Dallas filed a plea to the jurisdiction by which it challenged the trial court’s jurisdiction over Thompson’s counterclaims. The trial court denied the plea as to Thompson’s complaints regarding sufficiency of the notice to contest compensability and the good cause and timely filing issues. The trial court sustained the plea as to Thompson’s counterclaim for an award of attorney’s fees. Each side filed a notice of interlocutory appeal.1

PLEA TO THE JURISDICTION

Subject matter jurisdiction is essential to the authority of a court to decide a case. Starkey ex rel. Ragsdale v. Andrews Ctr., 104 S.W.3d 626, 628 (Tex. App.−Tyler 2003, no pet.). If a party believes that the plaintiff’s petition does not show jurisdiction and cannot be amended to allege jurisdiction, the party may file a plea to the jurisdiction at any time. Id.

Because subject matter jurisdiction presents a question of law, we review the trial court’s ruling on a plea to the jurisdiction de novo. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998).

Timeliness

*2 In its two issues, Dallas asserts the trial court erred by not granting the plea to the jurisdiction based on Thompson’s failure to timely file his counterclaims regarding the sufficiency of Dallas’s notice of denial of compensability and regarding his good cause for failing to file a claim for compensation with the DWC within one year of the injury. Dallas argues that the trial court has no jurisdiction because Thompson failed to seek judicial review of his counterclaims within forty-five days after the date the DWC mailed the appeals panel decision to the parties as required by the labor code.

Tex. Mut. Ins. Co. v. Chicas, No. 17-0501, 2019 WL 1495202 (Tex. April 5, 2019).

Recently, after the briefs were filed in this case, the supreme court addressed this exact issue. Explicitly overruling the line of cases on which Dallas relies, the supreme court held that the forty-five day deadline to file suit for judicial review of an appeals-panel decision in 2019 WL 1495202, at *6. Therefore, the trial court did not err in denying the portion of Dallas’s plea to the jurisdiction complaining that Thompson’s counterclaims are not timely. We overrule Dallas’s first and second issues.

Governmental Immunity

In his cross point, Thompson asserts that the trial court erred in granting Dallas’s plea to the jurisdiction as to Thompson’s counterclaim for attorney’s fees. He argues that the legislature intended that municipalities are to be held liable for attorney’s fees pursuant to TEX. LAB. CODE ANN. § 408.221(c) (West 2015). Dallas, as it asserted in its plea to the jurisdiction, relies on the doctrine of governmental immunity to avoid Thompson’s claim for attorney’s fees.

Governmental immunity is a common-law doctrine that derives from the sovereign immunity that shields the State, its agencies, and its officials. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 694-95 (Tex. 2003).

We agree with Dallas. In filing its petition, Dallas availed itself of its statutory right to challenge Thompson’s award by pursuing an appeal of the administrative decision to district court. Dallas’s decision to challenge in court the administrative award of benefits to Thompson did not result in a loss of Dallas’s governmental immunity from Thompson’s claim for attorney’s fees. Manbeck v. Austin Indep. Sch. Dist., 381 S.W.3d 528, 533 (Tex. 2012) (per curiam).

Thompson submits that Manbeck should be restricted to the specific facts in that case and not applied to municipalities or under the facts of this case. Manbeck applies the doctrine of governmental immunity to a school district. The doctrine of governmental immunity protects subdivisions of the State, including municipalities and school districts. Manbeck, 381 S.W.3d at 533. Nothing about the facts of this case makes the Manbeck rationale inapplicable here. We overrule Thompson’s sole cross point.

DISPOSITION

*3 Finding no error in the trial court’s rulings on Dallas’s plea to the jurisdiction, we affirm the trial court’s order.

Footnotes

1

See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a)(8) (West Supp. 2018).

Court of Appeals of Texas, Tyler.

IN RE: OLD REPUBLIC RISK MANAGEMENT, Old Republic Insurance Company, Thornton, Biechlin, Reynolds & Guerra, L.C., Timothy K. Singley and Dana M. Gannon, Relators

NO. 12-19-00144-CV

|

Opinion delivered June 28, 2019

|

Rehearing Denied July 3, 2019

ORIGINAL PROCEEDING

Attorneys & Firms

J. Michael Love, for Real Party in Interest.

Timothy K. Singley, for Relator.

Panel consisted of Neeley, J.

MEMORANDUM OPINION

PER CURIAM

*1 Relators, Old Republic Risk Management, Old Republic Insurance Company, Thornton, Biechlin, Reynolds, and Guerra, L.C., Timothy K. Singley, and Dana M. Gannon, filed this original proceeding to challenge Respondent’s denial of their plea to the jurisdiction and motion to dismiss.1 Debra Morris, Individually and as representative of the Estate of Kenneth W. Morris, Ashley Bialowas f/k/a Ashley Morris, Amanda Morris Wright, Jimmy Williams, Rebecca Williams, Orlando Ordaz, and Roy McCollough are the Real Parties in Interest (RPIs).

On June 12, 2019, this Court conditionally granted Relators’ petition and directed Respondent to vacate his March 18, 2019, order denying Relators’ plea to the jurisdiction and issue an order (1) granting the plea to the jurisdiction with respect to the RPIs’ claims for fraudulent lien, insurance code violations, fraud, independent fraudulent acts by lawyer/law firm, and conspiracy to assert fraudulent lien; and (2) abating the trial court proceeding pending the Division of Workers’ Compensation’s resolution of whether Old Republic is entitled to seek administrative costs as part of its subrogation claim and whether the amount of benefits paid has been wrongfully inflated. By an order signed on June 14, Respondent complied with this Court’s opinion and order, rendering this proceeding moot. Accordingly, we dismiss Relators’ petition for writ of mandamus as moot.

Footnotes

1

Respondent is the Honorable Paul E. White, Judge of the 159th District Court in Angelina County, Texas.

Court of Appeals of Texas, Tyler.

IN RE: OLD REPUBLIC RISK MANAGEMENT, Old Republic Insurance Company, Thornton, Biechlin, Reynolds & Guerra, L.C., Timothy K. Singley and Dana M. Gannon, Relators

NO. 12-19-00144-CV

|

Opinion delivered June 12, 2019

|

Rehearing Denied July 3, 2019

ORIGINAL PROCEEDING

Attorneys & Firms

Timothy K. Singley, for Relators.

J. Michael Love, for Real Party in Interest.

Panel consisted of Neeley, J.

MEMORANDUM OPINION

Brian Hoyle, Justice

*1 Relators, Old Republic Risk Management, Old Republic Insurance Company, Thornton, Biechlin, Reynolds, and Guerra, L.C., Timothy K. Singley, and Dana M. Gannon, filed this original proceeding to challenge Respondent’s denial of their plea to the jurisdiction and motion to dismiss.1 We conditionally grant the writ.

BACKGROUND

On January 22, 2018, Debra Morris, Individually and as representative of the Estate of Kenneth W. Morris, Ashley Bialowas f/k/a Ashley Morris, Amanda Morris Wright, Jimmy Williams, Rebecca Williams, Orlando Ordaz, and Roy McCollough, the Real Parties in Interest (RPIs), sued Relators for fraudulent lien, declaratory judgment, insurance code violations, fraud, independent fraudulent acts by lawyer/law firm, and conspiracy to assert fraudulent lien. According to the petition, a fire and explosion occurred at the Georgia-Pacific plywood mill in Corrigan, Texas on April 26, 2014. The explosion injured several employees and resulted in at least one fatality. Old Republic provided workers’ compensation insurance coverage to Georgia-Pacific and paid benefits to the RPIs. The RPIs also filed a personal injury lawsuit against certain third parties. In their petition against Old Republic, the RPIs alleged that Old Republic sent written notice claiming a lien against the third-party claims based on medical, and wage benefits paid by Old Republic and related to the RPIs’ injuries. The RPIs settled with two of the third parties and proceeded to a jury trial in federal court as to the remaining third parties. The federal court denied Old Republic’s motion to intervene.

On September 28, 2018, Relators filed a plea to the jurisdiction and motion to dismiss the RPIs’ lawsuit against them for lack of subject matter jurisdiction. They alleged that the RPIs’ claims arose from Old Republic’s investigation, handling, or settlement of workers’ compensation benefits, and they had not exhausted their administrative remedies under the Texas Workers Compensation Act (the Act). According to Relators, the Division of Workers Compensation (DWC) maintained exclusive jurisdiction to hear claims alleged in the RPIs’ lawsuit. Relators sought dismissal of the RPIs’ claims for fraudulent lien, violations of insurance code Section 541.061, fraud, independent fraudulent acts by lawyer/law firm, and conspiracy to assert fraudulent lien, leaving only the declaratory judgment claim.

In a letter to the parties, Respondent denied the plea to the jurisdiction and motion to dismiss. Respondent’s letter states, in pertinent part, as follows:

At the time of the motion hearing on February 25th, I announced an inclination to deny the Plea and Motion in the absence of: 1) case authority dealing solely with a subrogation lien dispute without suspension of [workers’ compensation] benefits; 2) a specific administrative violation as to subrogation liens in Chapter 415; or 3) [an] agency ruling /appeals decision pertaining to subrogation liens pursuant to Chapter 415. Having found none, I make this ruling although I would not be surprised if appellate courts differ with my decision on the basis of an intended “pervasive regulatory scheme” of the Labor Code for disposition by the [DWC] on everything workers’ compensation related.

*2 On March 18, Respondent signed an order denying the plea to the jurisdiction and motion to dismiss. This proceeding followed.

PREREQUISITES TO MANDAMUS

Mandamus is an extraordinary remedy. In re Tex. Mut. Ins. Co., 360 S.W.3d 588, 592 (Tex. App.—Austin 2011, orig. proceeding).

ABUSE OF DISCRETION

Relators contend that Respondent abused his discretion by denying their plea to the jurisdiction and motion to dismiss because the RPIs’ claims are within the DWC’s exclusive jurisdiction and the RPIs failed to exhaust their administrative remedies.

Standard of Review and Applicable Law

A trial court abuses its discretion when it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or apply the law. Id. at 840. Our review of the trial court’s determination of the legal principles controlling its ruling is much less deferential. Id. This is because a trial court has no discretion in determining what the law is or applying the law to the facts. Id.

Courts of general jurisdiction are presumed to have subject matter jurisdiction absent a contrary showing that the Texas Constitution or other law confers jurisdiction on another court, tribunal, or administrative body. Id. at 222.

*3 “Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 803 (Tex. 2001).

The DWC is “charged with ensuring all system participants, including carriers, comply with the rules, and when participants abuse the process, administrative penalties are available.” In re Crawford, 458 S.W.3d at 923.

The Act provides a dispute resolution process consisting of four possible steps: a benefit review conference (BRC), a contested case hearing (CCH), review by an administrative appeals panel, and judicial review. TEX. LAB. CODE ANN. § 410.251 (West 2015). Judicial review of a final decision of the appeals panel regarding compensability or eligibility for or the amount of income or death benefits shall be conducted as provided by the Act’s subchapter addressing judicial review of issues regarding compensability, income, or death benefits. Id. § 410.301(a) (West 2015).

For claims arising out of the claims-settlement process, the Act with its definitions, detailed procedures, and dispute resolution process demonstrates legislative intent for there to be no alternative remedies. Id. at 926.

Causes of Action

*4 The RPIs asserted claims for fraudulent lien, insurance code violations, fraud, independent fraudulent acts by lawyer/law firm, and conspiracy to assert fraudulent lien.2 Specifically, the RPIs alleged that Singley, Gannon, and the Firm (1) participated in a fraudulent business scheme by conspiring with their clients to assert and collect a fraudulent lien, violate the insurance code, and earn an inflated fee; (2) knowingly drafted, filed, and presented false and fraudulent legal documents in a federal court proceeding; and (3) knew the lien was fraudulent at the time they file a plea in intervention on behalf of their clients. They alleged that this scheme was designed to fraudulently transfer administrative costs of workers’ compensation claims from Old Republic to the RPIs and fraudulently inflate the true cost of medical benefits that Old Republic paid on behalf of Jimmy Williams for the sole purpose of asserting a fraudulently inflated lien. According to the RPIs, Singley, Gannon, and the Firm knew the following:

a. the lien claim was inflated by administrative costs,

b. the lien claim was fraudulently inflated by contract payments initially made to Paradigm Management3 as “medical payments” purportedly made for the benefit of Jimmy Williams despite knowing that such payments were not medical payments but contractual payments for case management, and

c. a significant amount of the contractual payments to Paradigm had been repaid to the Old Republic Defendants prior to the assertion of the lien.

The RPIs also alleged that: (1) Old Republic violated Section 541.061 of the insurance code “by representing the workers’ compensation policy paid or assumed benefits that it did not pay or assume and attempting to assert a lien for benefits that were not paid or assumed to the employee or legal beneficiary,” and (2) Singley and Old Republic engaged in gamesmanship and intentionally ignored the RPIs’ “requests for information regarding the alleged lien in hopes that the RPIs would settle all third-party claims [and dismiss the underlying lawsuit] without obtaining a jury finding on the percentage of fault attributable to the employer.” The RPIs identify the following as fraudulent:

a. Pretrial false representations to Plaintiffs’ counsel that the “medical paid on Jimmy Williams was $5.5 million.”

b. Sworn lien affidavits ... asserting, remarkably and untruthfully, a medical lien against Jimmy Williams in excess of $5 million.

c. Sworn lien affidavits ... asserting liens against the claims of the Williams and Morris Plaintiffs that fraudulently included administrative costs.

d. Submitting a written spreadsheet to Plaintiffs’ counsel outlining some medical payments mixed in with an enormous payment directly to Paradigm, the third-party administrator — all represented, untruthfully, as medical payments.

In alleging their claim of fraudulent lien, the RPIs stated that Old Republic’s untimely attempt to intervene in the underlying case was fraudulent because Old Republic attached an affidavit claiming a lien in the amount of $5,587,479.18 in medical bills as to Jimmy Williams, but money paid to Williams’s medical providers was less than half that amount. They alleged that the summary of charges attached to the affidavit included hundreds of charges for bill and utilization review that are not recoverable under the workers’ compensation act, as well as $5,354,500 in payments to Paradigm. According to the RPIs, despite multiple requests, Old Republic “provided no explanation for its attempt to assert a medical bills workers compensation lien for more than twice the monies actually paid to medical providers (other than attorney Singley’s vague suggestion that the difference was due to increased costs associated with the third-party administrator).” They alleged that these types of costs are not included in a worker’s compensation lien because the labor code limits the lien to amounts paid or assumed to the employee or legal beneficiary. They further alleged that Old Republic fraudulently asserted the contractual payments to Paradigm as medical benefits to Williams, despite knowing the following:

*5 a. the contractual payments were not “medical benefits,”

b. the amounts asserted were never legally incurred, and

c. the Old Republic Defendants had been refunded millions of dollars under the contract prior to the fraudulent assertion of the lien.

The RPIs further alleged that Relators conspired to unlawfully assert a fraudulent lien as part of a scheme to defraud the RPIs out of millions of dollars, and committed unlawful overt acts by swearing to, drafting, and presenting fraudulent lien claims.

Analysis

Relators contend that (1) a subrogation right arises from the underlying benefits paid or assumed by the carrier and is based on the carrier’s investigation, handling, or settling of the benefit claims; (2) allegations that Old Republic sought to shift administrative costs to the RPIs involves the determination of the amount of benefits to which a lien may properly attach; (3) the RPIs’ claims involve the compensability or eligibility for, or the mount of, income or death benefits and arise out of the claims settlement process; (4) whether administrative costs qualify as compensable benefits and are included in the amount of benefits paid is a challenge to the amount of income or death benefits for which judicial review is available only after a final decision of the appeals panel; and (5) the Act “provides a ‘pervasive regulatory scheme’ that evidences legislative intent for [the] DWC to have exclusive jurisdiction” over the RPIs’ claims. The RPIs respond that their claims arise from “Relators’ repeated misconduct in improperly asserting inflated, unsupported, and previously stricken ‘subrogation’ claims against Real Parties in Interest’s third-party recovery—inflated claims that have no basis in Texas workers’ compensation law.”4 They maintain that this is a fraudulent lien case under the Texas Fraudulent Lien Statute and there can be no lien because the jury apportioned sixty-five percent liability to Georgia-Pacific in the federal lawsuit.5

Section 417.001 of the Act provides that an employee or legal beneficiary may seek damages from a third party who is or becomes liable to pay damages for an injury or death that is compensable under the Act. TEX. LAB. CODE ANN. § 417.002(a) (West 2015). The Act defines a “benefit” to include medical, income, death, or burial benefits based on a compensable injury. Id. § 401.011(5) (West 2015).

*6 As set forth above, the substance of the RPIs’ allegations demonstrates that their claims are founded on the contention that Old Republic’s subrogation lien is fraudulent because it alleges a total amount that does not equate to the amount of benefits that were paid, including administrative costs, and its attorneys participated in such scheme. However, the Act expressly provides that an insurance carrier or its representative commits an administrative violation by failing to comply with a provision of the Act. See id. § 415.002(a)(22) (West 2015); see id. § 401.011(2) (an administrative violation includes a violation of the Act that is “subject to penalties and sanctions as provided by” the Act). The RPIs’ allegations, if true, demonstrate a failure to comply with Chapter 417 of the Act with respect to an attempt to recover for monies, particularly administrative costs and inflated medical benefits, that do not qualify as “benefits” as defined by the Act.6 Such noncompliance would constitute an administrative violation. It is the DWC’s responsibility to ensure that the Act is executed and to monitor insurance carriers, attorneys, and representatives of parties for compliance with the Act. Id. §§ 402.00114(a); 414.002(a); see Ruttiger, 381 S.W.3d at 443.

Because the Act specifically provides that the net amount recovered by the claimant in a third-party action shall be used to reimburse the carrier for benefits, which includes only medical, income, death, or burial benefits, paid for the compensable injury, a carrier violates the Act’s provisions if it seeks subrogation for amounts that do not qualify as benefits. It is axiomatic that the DWC, tasked with regulating and administering the business of workers’ compensation and monitoring insurance carriers, attorneys, and other representatives for compliance with the Act, should be the decision maker with regard to whether benefits have been inflated and administrative costs have been wrongfully included in a subrogation claim. See Crawford, 458 S.W.3d at 923-24. For this reason, the DWC has exclusive jurisdiction over the claims and the RPIs were required to exhaust their administrative remedies with the DWC before seeking judicial review. Consequently, Respondent abused his discretion by denying Relators’ plea to the jurisdiction as to all claims other than the RPIs’ declaratory judgment claim.

CONCLUSION

Having determined that Respondent abused his discretion, we conditionally grant Relators’ petition for writ of mandamus. We direct Respondent to vacate his March 18, 2019, order denying Relators’ plea to the jurisdiction, and in its stead, to issue an order (1) granting the plea to the jurisdiction with respect to the RPIs’ claims for fraudulent lien, insurance code violations, fraud, independent fraudulent acts by lawyer/law firm, and conspiracy to assert fraudulent lien; and (2) abating the trial court proceeding pending the DWC’s resolution of whether Old Republic is entitled to seek administrative costs as part of its subrogation claim and whether the amount of benefits paid has been wrongfully inflated. The writ will issue only if the trial court fails to do so within ten days of the date of the opinion and order. The trial court shall furnish this Court, within the time of compliance with this Court’s opinion and order, a certified copy of the order evidencing such compliance.

Footnotes

1

Respondent is the Honorable Paul E. White, Judge of the 159th District Court in Angelina County, Texas.

2

The RPIs’ declaratory judgment claim is not before us, as Old Republic’s plea to the jurisdiction did not seek dismissal of that claim.

3

According to the RPIs’ petition, Paradigm is a third-party administrator.

4

The RPIs also point this Court to a lawsuit filed by Old Republic in an Angelina County district court for conversion of lien money against the RPIs’ counsel and law firm. They ask, “How can these trial courts be ‘abusing their discretion’ for asserting jurisdiction over claims that Old Republic judicially admits should be brought there?” We need not decide whether Relators’ lawsuit against the RPIs constitutes a judicial admission, because jurisdiction cannot be conferred by judicial admission, waiver, or estoppel. See In re Meekins, 550 S.W.3d 729, 739 n. 4 (Tex. App.—Houston [1st Dist.] 2018, orig. proceeding).

5

See TEX. CIV. PRAC. & REM. CODE ANN. §§ 12.001-.007 (West 2017).

6

In their reply to the RPIs’ response, Relators state, “Finally, and as Claimants and their counsel are aware but omitted to mention in their response, the medical expense figure of $5.5 million attributable to Claimant Jimmy Williams was part of that Claimant’s DWC oversight, as to which DWC determined the appropriate amount (a determination which Mr. Williams did not challenge in a subsequent trial de novo). If, as and to the extent he is able to urge that that figure should not be considered binding for purposes of the scope of ORIC’s subrogation interest, it makes little sense to suggest that DWC is somehow without the ‘framework’ to revisit an issue which, unquestionably, when it is charged with oversight and review of medical costs in a workers compensation claim, and ensure the Texas Medical Fee Guidelines are adhered to.” Relators do not cite to a location in the record to support this statement and this Court’s review of the record has revealed none.

Court of Appeals of Texas, Tyler.

THOMAS OILFIELD SERVICES, LLC, Appellant

v.

Albert CLARK, Appellee

NO. 12–16–00207–CV

|

Opinion delivered May 24, 2017

APPEAL FROM THE 97TH JUDICIAL DISTRICT COURT, MONTAGUE COUNTY, TEXAS

Attorneys & Firms

Jared R. Barrett, for Appellant.

David F. Farris, for Appellee.

Panel consisted of Neeley, J.

MEMORANDUM OPINION

James T. Worthen, Chief Justice.

*1 Thomas Oilfield Services, L.L.C. (TOS) appeals the trial court’s grant of summary judgment in favor of Albert Clark. TOS presents two issues on appeal. We reverse and remand.

BACKGROUND

Clark was employed by TOS in May 2015. His duties included overseeing TOS’s production operations crews. Clark claims that he suffered heat stroke while working for TOS in July 2015, which lead to the onset of seizures. Clark contacted an attorney to pursue filing a workers’ compensation incident report. Shortly thereafter, according to Clark, TOS terminated his employment.

Clark sued TOS for (1) breaching his employment contract, and (2) violating the Texas Labor Code by retaliating against him for retaining counsel to pursue a workers’ compensation claim. Clark later moved for summary judgment, claiming entitlement to judgment as a matter of law on both his breach of contract and retaliatory discharge claims. TOS responded to the motion. Clark filed a reply to TOS’s response and objected to TOS’s summary judgment evidence. Following a hearing, the trial court sustained Clark’s objections to TOS’s evidence and granted summary judgment for Clark. TOS filed a motion for rehearing and new trial, which the trial court denied. This appeal followed.

SUMMARY JUDGMENT

In its first issue, TOS contends the trial court erred in granting summary judgment for Clark and awarding damages and attorney’s fees to Clark.

Standard of Review

The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993).

We review a trial court’s summary judgment ruling de novo. Karle v. Innovative Direct Media Ltd. Co., 309 S.W.3d 762, 765 (Tex. App.–Dallas 2010, no pet.).

Breach of Contract Analysis

*2 On appeal, TOS argues that Clark did not establish all the essential elements of his breach of contract claim as a matter of law. Specifically, TOS argues that Clark’s summary judgment evidence is legally insufficient to support the existence of an employment contract because (1) the evidence does not prove the existence of a valid employment contract, and (2) Clark’s affidavit regarding the existence of a contract contains legal conclusions.

In response, Clark maintains that TOS failed to preserve this issue for appellate review by neglecting to raise it at trial. However, the trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant’s summary judgment proof is legally insufficient. id. at 343.

In his motion for summary judgment, Clark stated that he was prematurely fired in violation of his employment agreement. He provided an email from TOS as evidence of the alleged employment contract. The email stated that TOS had secured a company vehicle for Clark and would order Clark’s shirts and business cards. The email further stated that Clark’s base salary would be “$90K per year plus a commission percentage[ ]” and that Clark would receive a sign-on bonus. The commission percentage plus Clark’s salary would equal $130,000 to $135,000 per year. A separate commission would be paid for any other work secured by Clark for TOS. The bonus amount was to be determined “based on the $90k and the commission to equal $150k for the first year’s salary.” On appeal, Clark contends this language created a valid contract in which TOS agreed to employ him for a full year.

The elements for breach of contract are (1) the existence of a valid contract, (2) the plaintiff’s performance or tendered performance, (3) the defendant’s breach of the contract, and (4) damages as a result of the breach. Id. at 332. “Standing alone, an agreement to pay at a stated rate is not enough; if it were, there would be very few at-will employees.” Id.

In this case, Clark’s summary judgment evidence does not overcome, as a matter of law, the presumption of at-will employment. Rather, the email establishes nothing more than an agreement to pay a stated rate. The email does not express an unequivocal intent by TOS to be bound not to terminate Clark’s employment for a specified term. See Steel, 997 S.W.2d at 223.

Retaliatory Discharge Analysis

*3 TOS also contends that Clark failed to establish all the essential elements of his retaliatory discharge claim as a matter of law. According to TOS, Clark’s evidence is legally insufficient to conclusively establish that Clark’s employment was terminated or that, if he was terminated, it resulted from his pursuit of a workers’ compensation claim.

Under Chapter 451 of the Texas Labor Code, “[a] person may not discharge or in any other manner discriminate against an employee because the employee has: filed a workers’ compensation claim in good faith,” or otherwise participated in a workers’ compensation claim or suit in specified ways. Lozoya, 81 S.W.3d at 347.

To prove a retaliatory discharge claim, the employee must show that the employer’s action would not have occurred when it did but for the filing of the worker’s compensation claim. Id. at 452.

In this case, Clark’s summary judgment evidence in support of his retaliatory discharge claim consists entirely of his affidavit. Therefore, we must review the affidavit to determine if it conclusively establishes as a matter of law that he was terminated by TOS and would not have been discharged but for his pursuit of a workers’ compensation claim. See id.; see also Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984).

Clark’s affidavit presents the following facts: (1) Clark began working for TOS in May 2015 and experienced a medical event in July; (2) Clark communicated with TOS representatives shortly after the medical event; (3) Clark retained an attorney, who sent correspondence to TOS regarding a workers’ compensation claim; and (4) Clark had a conversation with Greg Peeler, TOS’s president, after the correspondence was sent to TOS. In his affidavit, Clark states that, in July, when he contacted TOS, he expressed “frustration with the working conditions that caused [his] injury and that [ ] had even led [him] to start considering other employment options.” The affidavit further states that, on August 4, a TOS representative came to Clark’s residence to retrieve his company truck, credit card, and telephone. Clark asked if these actions meant that he had been terminated, and “[s]urprisingly, [the representative] responded that I had quit through earlier communications.” Clark’s affidavit states that “[t]his was untrue[,]” that his prior complaint was not a resignation, and that he never resigned from his employment.1

*4 While the retrieval of the company property suggests that Clark was no longer employed by TOS, it does not conclusively establish as a matter of law that Clark was terminated or the exact date that his employment ceased. Furthermore, even assuming Clark was terminated, the affidavit does not present legally sufficient evidence to conclusively establish that Clark’s pursuit of a workers’ compensation claim caused the discharge. At best, the affidavit supports an inference that TOS may have been aware that Clark was pursuing a workers’ compensation claim when the company truck, telephone, and credit card were retrieved in August 2015. However, such an inference is insufficient to conclusively establish that TOS’s actions were in retaliation of his pursuit of the claim. See Brownlee, 665 S.W.2d at 112.

Accordingly, indulging all reasonable inferences in favor of TOS, we conclude that Clark’s affidavit fails to conclusively establish as a matter of law that he was terminated as a result of pursuing a workers’ compensation claim. See Steel, 997 S.W.2d at 223. For this reason, the trial court erred by granting summary judgment on Clark’s retaliatory discharge claim.

Because summary judgment was improper, we sustain TOS’s first issue and need not address TOS’s second issue. See TEX. R. APP. P. 47.1.2

DISPOSITION

Having sustained TOS’s first issue, we reverse the trial court’s judgment and remand this case for further proceedings consistent with this opinion.

Footnotes

1

Clark’s affidavit lists the dates for his conversation with Peeler and the visit from the company representative as occurring in 2016. However, it is our understanding from the record that these events occurred in 2015.

2

In its second issue, TOS challenges the denial of its motion for rehearing and for new trial, in which it challenged the trial court’s summary judgment ruling.

Court of Appeals of Texas, Tyler.

Albert Ray WILLIAMS, Appellant

v.

GREAT WESTERN DISTRIBUTING COMPANY OF AMARILLO d/b/a Bill Reed Distributing Company, Appellee

NO. 12–16–00095–CV

|

Opinion delivered December 16, 2016.

APPEAL FROM THE 104TH JUDICIAL DISTRICT COURT TAYLOR COUNTY, TEXAS

Attorneys & Firms

Coby D. Smith, for Appellant.

Robert B. Wagstaff, for Appellee.

Panel consisted of Neeley, J.

MEMORANDUM OPINION

Greg Neeley, Justice.

*1 Albert Ray Williams appeals the trial court’s summary judgment granted against him and in favor of Great Western Distributing Company of Amarillo d/b/a Bill Reed Distributing Company (Great Western). He presents three issues on appeal. We affirm.

BACKGROUND

Dakotah Croxton was employed by Great Western as a delivery driver. During the week, Great Western paid its delivery drivers on an hourly basis and required drivers to punch a time clock. On the weekends, Great Western paid drivers a flat rate. Weekend drivers received a schedule of deliveries to complete throughout the day. The drivers are tracked via GPS to ensure they are completing their deliveries as scheduled.

On June 7, 2012, Croxton and Williams were involved in an accident in Abilene, Texas. Croxton was driving a company owned vehicle provided to him by Great Western for the purpose of making deliveries. The collision occurred on a weekend in which Croxton was paid a flat rate for deliveries. He was not required to punch a time clock on weekends and had flexibility in managing his time as long as he completed the scheduled deliveries. When the collision occurred, Croxton had not completed all of his scheduled deliveries and he was traveling home for lunch.

Williams subsequently sued both Croxton and Great Western. He alleged that Great Western was (1) directly liable for both negligence and gross negligence, and (2) vicariously liable under the doctrine of respondeat superior for Croxton’s alleged negligence in causing the collision.

Great Western filed a traditional and no evidence motion for summary judgment on Williams’s claims of gross negligence and respondeat superior. At a hearing, the trial court granted the summary judgment regarding gross negligence and requested additional briefing on the issue of respondeat superior. In a letter that was not filed with the clerk, the trial court granted Great Western’s summary judgment on respondeat superior. Although the trial court singed an order granting summary judgment on Williams’s gross negligence claim, the record does not contain a formal written order on the respondeat superior claim.

Following this ruling, Great Western filed special exceptions to Williams’s third amended petition and asked the trial court to strike Williams’s respondeat superior and gross negligence claims. At a hearing, the trial court granted the special exceptions and stated that it previously granted the summary judgment as to respondeat superior. Great Western later filed a motion to strike the remaining claims against it, which the court granted. Williams then filed a motion to sever his claims against Great Western so he could appeal the issue of respondeat superior, and the trial court granted that motion. This appeal followed.

THE ORDER

In his first issue, Williams asserts that the trial court’s letter ruling granting Great Western’s motion for summary judgment on respondeat superior merged with the order granting the motion to strike, which disposed of all claims against Great Western. Great Western agrees that merger occurred. In his third issue, Williams contends that, if the letter ruling is not a proper order on the motion for summary judgment, the trial court abused its discretion by granting the special exceptions and striking Williams’s claims against Great Western.

*2 The letter ruling was never entered into the record. However, at the hearing on the motion to strike, the trial court orally pronounced that it had granted Great Western’s motion for summary judgment as to respondeat superior. Judgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk. S & A Rest. Corp. v. Leal, 892 S.W.2d 852, 855 (Tex. 1995). A judgment is effective once it is rendered, and the subsequent reduction to writing of the judgment is a matter of clerical action. TEX. R. APP. P. 47.1.

MOTION FOR SUMMARY JUDGMENT

In his second issue, Williams contends the trial court erred in granting Great Western’s summary judgment on respondeat superior.

Standard of Review

The standard for reviewing a traditional summary judgment is well-established. The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 236 (Tex. App.–Houston [14th Dist.] 2014, no pet.).

Additionally, after an adequate time for discovery has passed, a party without the burden of proof at trial may move for summary judgment on the ground that the nonmoving party lacks supporting evidence for one or more essential elements of its claims. See Id. at 751. If the evidence supporting a finding rises to a level that would enable reasonable, fair minded persons to differ in their conclusions, then more than a scintilla of evidence exists. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact, and the legal effect is that there is no evidence. Id.

In determining whether an appellant has raised more than a scintilla of evidence regarding the grounds on which a no evidence motion for summary judgment was based, we are limited to the summary judgment proof produced in the response. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

*3 When a party moves for both a traditional and no evidence summary judgment, we first review the trial court’s summary judgment under the no evidence standards of Dunn v. Clairmont Tyler, L.P., 271 S.W.3d 867, 870 (Tex. App.–Tyler 2008, no pet.).

Applicable Law

To impose liability on an employer for the tort of his employee under the doctrine of respondeat superior, the employee’s act must (1) fall within the scope of the employee’s general authority, and (2) be in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired. London v. Tex. Power & Light Co., 620 S.W.2d 718, 720 (Tex. App.–Dallas 1981, no writ).

When it is proved that a vehicle involved in an accident is owned by the defendant and the driver was an employee of the defendant, “a presumption arises that the driver was acting within the scope of his employment when the accident occurred.” Robertson, 468 S.W.2d at 358.

Analysis

In the no evidence portion of its summary judgment motion, Great Western alleged that it was entitled to judgment as a matter of law because Williams presented no evidence that Croxton was in the course and scope of his employment at the time of the collision. In his deposition, Croxton testified that he was not working at the time of the accident. According to Croxton, he had completed a delivery, was on his lunch break, and was travelling to his residence at the time of the accident. Thus, Great Western maintained that it was not vicariously liable for Croxton’s actions because he was on a personal errand, i.e, he was driving home for lunch, when the accident occurred.

*4 Williams urges that Croxton was within the course and scope of his employment with Great Western because he was driving an employer-owned vehicle and uses the streets as a condition of his employment. Williams bases his argument on several cases that analyze the “course and scope” requirement under the Texas Workers’ Compensation Act (TWCA). However, the rules governing course and scope under the TWCA and for vicarious liability under the common law doctrine of respondeat superior are distinct and can create different outcomes on the same set of facts. Robertson Tank Lines, 468 S.W.2d at 357.

It is well settled under Texas law, “[w]hen an employee deviates from the performance of his duties as an employee for his own, personal purposes, his employer is neither responsible nor liable on a respondeat superior theory for what occurs during that deviation.” Bell v. VPSI, Inc., 205 S.W.3d 706, 718 (Tex. App.–Fort Worth 2006, no pet.) (recognizing that even when driving vehicle furnished by employer, employee is generally not in course and scope while going to and returning from work unless directed by employer or furthering employer’s business).

Croxton testified in his deposition that he was travelling home for lunch when the accident occurred. This evidence rebutted the presumption that he was in the course and scope of his employment while driving an employer-owned vehicle. Williams identifies several facts that he contends support the inference that Croxton was within the course and scope of employment. He points to the fact that Croxton had not completed his daily deliveries, the vehicle was monitored by GPS, Croxton notified his supervisor of the accident, Great Western investigated the accident, and the supervisor arrived on scene before the police. However, these facts do not create a fact issue with regard to whether Croxton was in the course and scope of his employment because they do not negate that Croxton was driving home for lunch when the accident occurred. Accordingly, Williams presented no evidence to rebut Great Western’s evidence that Croxton was en route to his residence for lunch at the time of the collision.

*5 Because Williams presented no evidence that Croxton was in the course and scope of his employment at the time of the accident, the trial court did not err in granting Great Western’s no evidence motion for summary judgment on respondeat superior. See Ridgway, 135 S.W.3d at 602.

CONCLUSION

We have sustained Williams’s first issue and need not address his third issue. Having determined that the trial court’s summary judgment ruling on the doctrine of respondeat superior is properly before us, and having overruled Williams’s second issue challenging the trial court’s decision to grant a no evidence summary judgment in favor of Great Western, we affirm the trial court’s judgment.

Court of Appeals of Texas, Tyler.

Garry L. ROLLINS and Carla D. Rollins, Appellants

v.

TEXAS COLLEGE and MPF Investments, LLC d/b/a “A–1 Rent All”, Appellees

NO. 12–15–00121–CV

|

Opinion delivered July 12, 2016

*367 APPEAL FROM THE 7TH JUDICIAL DISTRICT COURT, SMITH COUNTY, TEXAS. Judge Kerry L. Russell

Attorneys & Firms

Ernesto Sigmon, for Appellants.

Levon G. Hovnatanian, for Appellees.

Panel consisted of Neeley, J.

OPINION

GREG NEELEY, Justice

Garry L. Rollins and Carla D. Rollins appeal the trial court’s summary judgments granted against them in favor of Texas College and MPF Investments, LLC d/b/a “A–1 Rent All.” They present three issues on appeal. We affirm.

BACKGROUND

Garry Rollins was employed by Texas College as a maintenance technician and supervisor. In October 2013, the college rented two scissor lifts to be used in performing repairs in the gymnasium. One of those lifts was rented from MPF. Garry fell while dismounting one of the lifts following completion of the repair work. After the fall, Garry sought medical treatment and had surgery for a neck injury.

The Rollinses sued Texas College and MPF for damages they assert are a result of Garry’s fall from the scissor lift’s platform. They alleged Texas College was a nonsubscriber to worker’s compensation and was negligent. Specifically, the Rollinses claimed Texas College failed in its duty to (1) provide a reasonably safe workplace; (2) furnish reasonably safe machinery or reasonably safe personal protective equipment for use with the scissor lift; (3) provide adequate help in the performance of the work; (4) train and/or properly supervise Garry while using the lift; and (5) ensure that Garry was fit to perform work on a scissor lift. Garry alleged that he was diagnosed with syncope, an illness that causes blackouts, following an incident in which he coughed and sneezed while attempting to lift a marble slab in September 2013. According to Garry, he was ordered to use the scissor lift to patch the gymnasium ceiling even though he told his supervisor that he was afraid of heights and his supervisor knew about his syncope.

The Rollinses alleged MPF was negligent in failing to train Texas College’s employees regarding use of the scissor lift and by failing to include an owner’s manual in the scissor lift’s compartment box. They also alleged MPF was liable for negligent entrustment.1 Carla Rollins asserted derivative claims against both Texas College and MPF.

Texas College and MPF each moved for traditional and no evidence summary judgments. They also moved to strike portions of the summary judgment evidence attached to the Rollinses’ responses. The trial court sustained the objections and granted the motions without a hearing. The Rollinses filed a motion to reopen the evidence, which was denied. This appeal followed.

*368 MOTIONS TO STRIKE

As part of their first and second issues, the Rollinses allege that certain summary judgment evidence was improperly stricken.2

Standard of Review

Evidence offered in response to a motion for summary judgment must be admissible under the rules of evidence to the same extent that would be required at trial. See Longoria, 938 S.W.2d at 30.

Analysis

The Rollinses’ response to Texas College’s no evidence motion for summary judgment included a letter to the Rollinses’ attorney from Dr. Samuel Barnett, the physician who performed Garry’s neck surgery. The letter described Dr. Barnett’s evaluation of Garry and his diagnosis. The Rollinses offered no other causation evidence in response to the college’s no evidence motion for summary judgment. Texas College objected that the letter was inadmissible hearsay, and the trial court sustained the objection. On appeal, Garry argues the letter is admissible under Texas Rule of Evidence 803(4).

Hearsay is any statement, other than one made while testifying at trial, that is offered to prove the truth of the matter asserted. TEX. R. EVID. 803(4). Therefore, Dr. Barnett’s letter was inadmissible hearsay, and the trial court did not abuse its discretion in striking it. We overrule the portions of the Rollinses’ first and second issues that pertain to the exclusion of Dr. Barnett’s letter.

MOTIONS FOR SUMMARY JUDGMENT

Also in their first and second issues, the Rollinses allege the trial court erred in granting Texas College’s and MPF’s motions for summary judgment.

Standard of Review

The standard for reviewing a traditional summary judgment is well-established. The movant for traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fed. Home Loan Mortg. Corp. v. Pham, 449 S.W.3d 230, 236 (Tex.App.—Houston [14th Dist.] 2014, no pet.).

Additionally, after an adequate time for discovery has passed, a party without the burden of proof at trial may move for summary judgment on the ground that the nonmoving party lacks supporting evidence for one or more essential elements of its claims. See Id.

In determining whether an appellant has raised more than a scintilla of evidence regarding the grounds on which a no evidence motion for summary judgment was based, we are limited to the summary judgment proof produced in the response. Id.

In both traditional and no evidence summary judgment motions, we review the record de novo and in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

When a party moves for both a traditional and no evidence summary judgment, we first review the trial court’s summary judgment under the no evidence standards of id. at 602.

Applicable Law

Texas College is a nonsubscriber to workers’ compensation. Therefore, the Rollinses must establish Texas College was negligent. See Id.

Lay testimony is sufficient to establish causation in those cases in which general experience and common sense will enable a layman to determine, with reasonable probability, the causal relationship between the event and the condition. Id. at 665.

Analysis

As part of its no evidence motion, Texas College alleged the Rollinses had no evidence supporting causation. Specifically, the college contended there was no evidence that Garry’s injuries were caused by his fall from the scissor lift. It is undisputed that Garry suffered from a neck injury and underwent neck surgery prior to his fall. It is also undisputed that the previous injury is similar to the injury complained of in this suit. Therefore, the Rollinses were required to present expert testimony linking Garry’s latest neck injury and neck surgery to his fall from the scissor lift. See State Office of Risk Mgmt. v. Adkins, 347 S.W.3d 394, 400–01 (Tex.App.—Dallas 2011, no pet.) (expert testimony required to establish aggravation of preexisting medical condition). However, the Rollinses provided only a letter from Garry’s treating physician, Dr. Barnett. Texas College objected that the letter was inadmissible hearsay. The trial court sustained the objection and struck the letter. Because the only evidence linking Garry’s neck injury and neck surgery to the fall was stricken by the trial court, the Rollinses presented no evidence of causation. Therefore, the trial court did not err in granting Texas College’s no evidence motion for summary judgment.

*371 MPF asserted, in part, in its no evidence motion for summary judgment that the Rollinses had no evidence that Garry fell from the lift Texas College rented from MPF. On appeal, the Rollinses failed to challenge this summary judgment ground in their brief. When the trial court does not specify the basis for its summary judgment, the appealing party must show it is error to base it on any ground asserted in the motion. Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex.App.—Dallas 2009, pet. denied). However, even if the Rollinses had challenged this ground on appeal, they could not prevail because they presented no summary judgment evidence that Garry fell from the lift Texas College rented from MPF. In fact, the only evidence presented to the trial court demonstrates that Garry fell from a lift other than the one rented from MPF. Because there is no evidence that Garry fell from MPF’s scissor lift, there is no evidence that MPF caused any of Garry’s injuries. We overrule the remaining portions of the Rollinses’ first and second issues.

MOTION TO REOPEN

In their third issue, the Rollinses contend the trial court erred when it denied their motion to reopen the evidence.

Standard of Review

We review the denial of a motion to reopen the evidence under an abuse of discretion standard. Hernandez v. Lautensack, 201 S.W.3d 771, 779 (Tex.App.—Fort Worth 2006, pet. denied).

Analysis

After the no evidence summary judgments were granted, the Rollinses moved to reopen the evidence and sought to introduce an affidavit from Dr. Barnett because his letter had been stricken by the court. The Rollinses urge that they were diligent in obtaining the affidavit because they did so a mere six days following the granting of summary judgment. Therefore, they contend the trial court abused its discretion in denying their motion to reopen the evidence.

The Rollinses’ request to reopen the evidence was an attempt to remedy the exclusion *372 of Dr. Barnett’s letter because of its inadmissibility—a fact they admit in their motion to reopen. However, the Rollinses have not shown that the information contained in the affidavit was unavailable prior to the granting of the no evidence summary judgments. The Rollinses also failed to show that they did not have an opportunity to present the evidence to the trial court. To the contrary, Dr. Barnett’s affidavit contains the same information as his letter. And the letter itself demonstrates that the information was available eight months prior to the granting of the summary judgments. Therefore, the trial court did not abuse its discretion when it denied the Rollinses’ motion to reopen the evidence to allow the introduction of Dr. Barnett’s affidavit. We overrule the Rollinses’ third issue.

DISPOSITION

Having overruled the Rollinses’ three issues, we affirm the judgment of the trial court.

Footnotes

1

The Rollinses are not asserting negligent entrustment on appeal.

2

The Rollinses complain that several pieces of summary judgment evidence were improperly stricken. However, we address only the evidence pertinent to our review. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex.1995) (exclusion of evidence only harmful if probably caused rendition of improper judgment), 47.1.

Court of Appeals of Texas, Tyler.

Jerry WEAKS and Joyce Weaks, Appellants

v.

Kathleen Jeanette WHITE, Appellee

NO. 12–14–00253–CV

|

Opinion delivered October 21, 2015.

|

Rehearing Overruled December 17, 2015

*434 APPEAL FROM THE 392ND JUDICIAL DISTRICT COURT, HENDERSON COUNTY, TEXAS, CARTER W. TARRANCE, JUDGE.

Attorneys & Firms

*435 Aubrey L. Jones Jr., for Appellant.

Jane Parreiras-Horta, for Appellee.

Panel consisted of Hoyle, J.

OPINION

JAMES T. WORTHEN, Chief Justice

Jerry Weaks and Joyce Weaks appeal an adverse summary judgment rendered in Kathleen Jeanette White’s suit against them concerning an executory contract for the conveyance of real property. On appeal, the Weakses raise three issues concerning the applicability of common law defenses and the awards for damages and attorney’s fees. We affirm.

BACKGROUND

On June 5, 2002, the Weakses, as sellers, and White, as purchaser, executed a document entitled “Contract for Deed” pursuant to which White agreed to make a down payment and monthly installments for ten years to purchase a small tract of land and a mobile home. White did not make a payment in December 2011, January 2012, or February 2012. In February 2012, the Weakses demanded that she pay the amount past due as well as the remaining amount due under the contract, a total of $2,142.74, within three days of the demand letter, “or be out.” On February 23, either at the Weakses’ direction or by mistake, the water meter was removed from the property, depriving White of access to water. On March 15, 2012, while still residing in the property at issue, White sued the Weakses for violations of Chapter 5, Subchapter D, of the Texas Property Code, the Texas Deceptive Trade Practices Act, and breach of their duty of good faith and fair dealing. She asked for statutory damages, economic and actual damages, damages for mental anguish, exemplary damages, and cancellation and rescission of the contract. She also sought a writ to restore her water service and a temporary restraining order to restrain the Weakses from affecting her utility services or interfering with her use and enjoyment of the property. Additionally, she asked for an award of attorney’s fees.

The trial court immediately signed the requested temporary restraining order and writ to restore the water. Shortly thereafter, the court signed a temporary injunction. Six months later, while still residing on the property at issue, White filed a motion for summary judgment addressing four sections of Chapter 5 of the property code. In support of her motion, she relied on deemed admissions, her affidavit, her attorney’s affidavit, the contract for deed, and the Weakses’ demand letter. She specifically waived all causes of action and relief not requested in the motion.

The Weakses responded to the motion, asserting that they complied, or at least substantially complied, with the statutory requirements. They also asserted that White is estopped from seeking damages and barred by laches. They averred generally that “it appears that there are genuine issues as to material facts.” In support of their response, the Weakses provided only an affidavit signed by both of them.

After a hearing on the motion, the trial court found that the Weakses failed to comply with four sections of Chapter 5 of the property code as alleged and that White is entitled to damages and attorney’s fees. The court rendered a partial summary judgment adjudging the Weakses liable for violation of Section 5.077 and ordered them to pay attorney’s fees in the amount of $10,250.00.

The parties stipulated that White occupied the property for twenty-one months after filing suit and the fair market rental value was $356.81 per month for a total offset of $7,493.01. In the final judgment, the court adjudged that White recover from the Weakses $35,826.52 in damages, $10,250.00 in attorney’s fees, and costs of court.

OFFSET

In their first issue, the Weakses contend that the trial court erred in determining the proper offset or reasonable rent against the refund of White’s purchase money. They argue that if White were to receive the amount awarded, without restoring the rental value of her occupation of the property, she would be receiving an unfair windfall. They assert that the purchaser must pay restitution for the total period of time she occupied the property, not just the time period after giving notice of rescission. Accordingly, the argument continues, the purchase money figure determined by the trial court, $43,319.53, should be offset by the number of months that White occupied the property, 139, multiplied by the reasonable rental value. The parties agreed that the reasonable rental value was $356.81 per month. This would result in a restitution figure of $49,596.59, completely offsetting the reimbursement due under the judgment. Additionally, White would owe $6,277.06 for her occupancy.

Applicable Law

A contract for deed, unlike a typical secured transaction involving a deed of trust, is a financing arrangement that allows the seller to maintain title to the property until the buyer has paid for the property in full. Id. at 508.

Analysis

The parties agreed that White rescinded the contract on the date she filed her petition. The trial court determined that the offset amount should be $7,493.01 based on the twenty-one months that White occupied the property after she filed this suit. The property code provides that the seller’s failure to furnish certain required information to the purchaser “entitles the purchaser to cancel and rescind the executory contract and receive a full refund of all payments made to the seller.” Morton, 412 S.W.3d at 512. Because the trial court’s formula conforms to the supreme court’s interpretation of Chapter 5, Subchapter D regarding this issue, we overrule the Weakses’ first issue.

COMMON LAW DEFENSES

In their second issue, the Weakses assert that the trial court erred in failing to recognize any common law defenses to White’s claims. They argue that they raised the defenses of estoppel and laches in their response to White’s motion for summary judgment, and they were therefore entitled to a trial on the merits. They rely on Morton v. Nguyen, where the supreme court recognized a common law element and applied it to the statutory remedy in Subchapter D, extrapolating that the same reasoning applies to estoppel and laches.

Applicable Law

Statutory construction is a legal question, which we review de novo. Shumake, 199 S.W.3d at 284.

Statutes may modify common law rules. Frank B. Hall & Co. v. Beach, Inc., 733 S.W.2d 251, 264 (Tex.App.–Corpus Christi 1987, writ ref’d n.r.e.) (op. on reh’g) (held that common law defense of contributory negligence cannot defeat insurance code claims).

Estoppel based in law prevents a party from taking positions contrary to those it took in property deeds and contracts in order to preserve the document’s integrity. See Brooks v. Brooks, 257 S.W.3d 418, 423 (Tex.App.–Fort Worth 2008, pet. denied).

The defense of laches precludes a plaintiff from asserting legal rights after an unreasonable delay against a defendant who has changed his position in good faith and to his detriment because of the delay. Houston Lighting & Power Co. v. City of Wharton, 101 S.W.3d 633, 638 (Tex.App.–Houston [1st Dist.] 2003, pet. denied).

Analysis

Although the Weakses’ argument does not make it clear which type of estoppel they assert, it seems most likely estoppel based in law or quasi-estoppel. The pertinent portion of the Weakses’ summary judgment response is as follows:

Plaintiff would appear to be estopped from making any further complaints, or seeking damages, from or in regard to the Weaks, and would also be barred by laches. This is because of the approximately 10 years that Plaintiff occupied the property, made the payments (although usually late), and made no complaint about any of the matters referred to in her petition or motion for summary judgment. This is additionally because, after the misunderstandings regarding the water meter were resolved, Plaintiff continued to either occupy the property herself, or she let family members live in the house on the property.

Because the suit arises from the parties’ executory contract for the conveyance of real property, we consider the history of the applicable statute. In 1995, the legislature amended Chapter 5 of the property code to address serious abuses in the Texas–Mexico border region known as “the colonias,” a rural area where many residents were financing the purchase of their homestead properties through contracts for deed. See Id. at 435.

Subchapter D of Chapter 5 does not explicitly address the application of common law defenses. However, the Legislature is capable of doing so when it chooses. See, e.g., TEX. FAM. CODE ANN. § 4.105(c) (West 2006) (providing that the remedies and defenses in the section regarding marital agreements are the exclusive remedies or defenses, including common law remedies or defenses).

*439 Subchapter D was enacted to protect purchasers who execute a contract for deed. 5.072(e)(2). There is no indication that the Legislature intended estoppel defenses to be used to deny purchasers the statutory remedy.

Furthermore, application of an estoppel defense would prevent the purchaser from cancelling the contract for deed and getting her money refunded after having the benefit of living on the property. This is the opposite of what the statute provides. In Smith, 611 S.W.2d at 616.

White’s lawsuit raised claims pursuant to the property code. The statute of limitations is the appropriate defense, not the equitable defense of laches, and this case presents no extraordinary circumstances. See Morton determined that the Legislature intended Subchapter D’s cancellation and rescission remedy to also contemplate the common law element of mutual restitution, we detect no such intention to contemplate the use of the common law defenses of estoppel and laches. We overrule the Weakses second issue.

ATTORNEY’S FEES

In their third issue, the Weakses assert that the trial court erred in awarding White the total amount of attorney’s fees she claimed. They argue that only her claim pursuant to Section 5.077 provides for an award of attorney’s fees. Therefore, the argument continues, she should be awarded fees only for the work she did on that one claim. The failure to limit the award to that claim, they assert, results in an attorney’s fees award that is unreasonable. They request the award be reduced or the issue of attorney’s fees be remanded for a hearing on the merits.

Applicable Law

When a lawsuit involves multiple claims, the proponent of attorney’s fees must segregate recoverable fees from those incurred on claims for which fees are not recoverable. Id.

A timely objection with supporting controverting evidence on the question of which fees are recoverable is needed to reverse an award that includes nonsegregated fees. See Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex.1997).

Analysis

In her motion for summary judgment, White alleged that she is entitled to an award of attorney’s fees pursuant to TEX. PROP. CODE ANN. § 5.077(c)(2) (West 2014). She presented as supporting evidence the affidavit of her attorney who asked for $10,250.00 as compensation for the time she spent working on the case. The Weakses did not address the claim for attorney’s fees in their response to the motion for summary judgment.

At the hearing on the motion, the trial court orally ruled in White’s favor on her four claims of property code violations and the claim for attorney’s fees. The Weakses raised the issue of the need to segregate attorney’s fees in a post-summary judgment hearing letter brief and a motion to disregard the court’s prior finding. At a later hearing, White objected to reconsideration of the attorney’s fee issue and the trial court sustained the objection, specifically stating that it would not reconsider that issue. The court’s final summary judgment incorporates its prior liability rulings and orders the Weakses to pay $10,250.00 in attorney’s fees.

A purchaser recovering liquidated damages under Section 5.077 claim.

However, because the Weakses’ segregation argument was not included in a timely response, the viability of their late complaint was left to the discretion of the trial court. See Solis, 951 S.W.2d at 389. We overrule the Weakses third issue.

DISPOSITION

Having determined the trial court committed no reversible error, we affirm the trial court’s judgment.

Neeley, J., concurring in part and dissenting in part.

Opinion

GREG NEELEY, Justice

I concur with the majority’s opinion that the trial court did not err in the formula used in calculating its damage award and in refusing to allow the Weakses to assert the common law defenses of estoppel and laches. While I agree that the Weakses waived error as to White’s failure to segregate between legal fees that were properly recoverable from those for which recovery was not authorized, I disagree with the majority’s affirming the award of attorney’s fees to White. A trial court’s summary judgment determination is reviewed de novo. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex.1985). Because I believe the affidavit filed by White’s attorney to be legally insufficient to support the attorney’s fees award, I respectfully dissent.

To constitute proper summary judgment evidence, an affidavit must be made on personal knowledge, set forth facts that would be admissible in evidence, and show the affiant’s competence. Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex.1996).

An affidavit that is merely a sworn statement of the allegations in a pleading or that simply paraphrases statutory language is conclusory and lacks probative force. See Valenzuela v. State & Cnty. Mut. Fire Ins. Co., 317 S.W.3d 550, 552–53 (Tex.App.–Houston [14th Dist.] 2010, no pet.).

The evidence before us in support of White’s claim for attorney’s fees is the affidavit of White’s attorney. That affidavit states as follows:

“My name is Jane Parreiras–Horta. I am over 18 years of age, of sound mind, and fully competent to make this affidavit. I have personal knowledge of the facts stated herein and they are all true and correct.

On March 2, 2012, Movant employed me in connection with the matter on which this suit is based. I have spent 71 hours on this case. However, I am asking for compensation for only 41 hours which includes doing or causing to be done the following:

Plaintiff’s claim against Defendant was investigated, including researching real property records.

Demand was made on Defendants.

Suit was prepared and filed, including obtaining ex parte relief.

Possible resolutions were discussed.

Discovery requests were prepared and served.

*442 A motion for summary judgment was prepared.

Based on my education, training and experience, it is my opinion that a reasonable hourly rate for my time in this case is $250.00. Movant is entitled to recover the reasonable attorney’s fees requested herein pursuant to TEX. PROP. CODE ANN. § 5.077(c)(2).

It is my opinion that these fees are reasonable attorney’s fees based upon the following factors:

1. The novelty and difficulty of the issues involved, the skill required to provide the legal services properly, and the experience, reputation, and expertise of the lawyer or lawyers performing the services;

2. The time and labor involved to perform the legal services properly; and

3. The fee customarily charged in the community for similar services.”1

The Texas Supreme has identified eight factors the fact finder should consider when determining the reasonableness of an award of attorney’s fees. Arthur Andersen factors represent well established guidelines in presenting evidence to support a claim for attorney’s fees, it has become less clear when general unsupported statements contained within uncontroverted affidavits become so general as to become conclusory. The result is uncertainty to both practitioners and trial courts as to where, if there is one at all, the line is between probative and conclusory statements when uncontroverted affidavits fail to contain underlying facts.

In Garcia v. Gomez, 319 S.W.3d 638, 648 (Tex.2010), the Texas Supreme Court examined the sufficiency of attorney’s fees evidence, which did not include underlying facts to support the testifying attorney’s opinions. That relevant testimony is as follows:

My name is Ronald Hole. I’m an attorney practicing in Hidalgo County, doing medical-malpractice law/litigation. I have done it since 1984. For a usual and customary case like this these fees for handling it up to the point of dismissal, the reasonable and necessary attorney’s fees for handling that is 12,200.

No billing statements were attached and are not required under Texas law. See Air Routing Int’l Corp (Canada) v. Britannia Airways, Ltd., 150 S.W.3d 682, 692 (Tex.App.–Houston [14th Dist.] 2004, no pet.). Opposing counsel did not cross-examine the witness, present any evidence on the issue of attorney’s fees, or question the reasonableness of any of the fees.

The court of appeals affirmed the trial court’s finding this testimony was conclusory in denying an award of attorney’s fees and further concluded the attorney’s testimony was insufficient because it failed to establish the party actually incurred attorney’s fees which the court described as “an essential statutory element.” *443 Garcia, 319 S.W.3d at 641. Under the circumstances in that case, the majority found the testimony to not be merely conclusory, though the testimony lacked specifics, in that the testimony represented some evidence of what a reasonable attorney’s fee might be in that case.

Justice Jefferson dissented pointing out the gaps in the attorney’s fee testimony and cited numerous cases where the Texas Supreme Court had held a party seeking an award of attorney’s fees carries the burden of proof and waives the right to those fees when it fails to produce evidence of attorney’s fees. Id. at 648 (Johnson, J., dissenting). Both believed the testimony was insufficient to support an award of attorney’s fees and would have affirmed the court of appeals’ judgment.

The Fort Worth court of appeals in Sundance Minerals L.P., v. Moore, 354 S.W.3d 507, 515 (Tex.App.–Fort Worth 2011, pet. denied), following the holding in Garcia, found that general statements without specifics represent evidence of reasonable and necessary attorney’s fees sufficient to survive a legal sufficiency challenge. The court cited Garcia and numerous courts of appeals cases in which similar affidavits were found to not be conclusory. Justice Gabriel dissented by distinguishing the affidavit before the court from those in cases relied on by the majority.

Other courts of appeals have accepted uncontroverted testimony as a matter of law as to the reasonableness of attorney’s fees not supported by underlying facts when the testimony is clear, positive, and direct, especially when the opposing party had the means and opportunity to disprove and failed to do so. Eberstein v. Hunter, 260 S.W.3d 626, 630 (Tex.App.–Dallas 2008, no pet.), held that an uncontroverted attorney’s fees affidavit similar to the one in Garcia was conclusory and therefore, no evidence of attorney’s fees.

This court in Gaughan v. Nat’l Cutting Horse Ass’n, 351 S.W.3d 408, 422 (Tex.App.–Fort Worth 2011, pet. denied).

Though the legally sufficient threshold for an uncontroverted affidavit is minimal, I feel the affidavit in this case falls below that minimum threshold for the following reasons. First, the affidavit fails to state the affiant’s qualifications. The affidavit is silent about whether affiant is an attorney. While the affiant bases her opinion as to what a reasonable hourly rate for “my time” would be on “my education, training, and experience,” the affidavit fails to state any specifics as to her education, training, and experience to support her opinion. The record before us, in our de novo review, contains a sworn IOLTA Certificate signed by the affiant as well as another affidavit verifying that the Request for Admissions served on the Weakses were not answered in which affiant averred she “is the attorney of record for plaintiff in this case.” White’s pleadings also reflect the affiant is White’s attorney. This does not change my view. As a general rule, pleadings are not summary judgment evidence. Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex.1995). I do not believe a sworn statement that merely states the affiant is the attorney for the party seeking attorney’s fees sufficiently sets forth the affiant’s qualifications.

Second, the affidavit fails to set forth the specifics of affiant’s personal knowledge of the novelty and difficulty or the issues presented in this case, the skill required to provide the needed legal services to White, or the experience and expertise of the lawyer or lawyers performing the legal services. The affidavit does not specify how many cases of this nature affiant had handled, or whether she was “personally familiar” with the Valenzuela, 317 S.W.3d at 552–53.

I cannot agree that an affidavit in support of attorney’s fees that does not set forth the affiant’s qualifications or affirmatively show the basis of the affiant’s personal knowledge is sufficient to support an attorney’s fee award and is therefore, distinguishable from Garcia and our holding in Texas Rule of Civil Procedure 166a(f). Accordingly, I would reverse the trial court’s award of attorney’s fees to White.

Footnotes

1

The trial court awarded attorney’s fees only through entry of summary judgment. The remaining portions of the affidavit, which pertain to additional fees that would be incurred later, are not relevant to this dissent and have been omitted.

Court of Appeals of Texas,

Tyler.

Curtis McCLENDON, Appellant

v.

DEEP EAST TEXAS PROPERTY MANAGEMENT, LLC, Appellee.

No. 12–12–00331–CV.

|

March 31, 2014.

Appeal from the 159th Judicial District Court Angelina County, Texas.

Attorneys & Firms

Robert T. Cain Jr., for Curtis McClendon.

Curtis W. Fenley III, for Deep East Texas Property Management, LLC.

Panel consisted of HOYLE, J.

MEMORANDUM OPINION

SAM GRIFFITH, Justice.

*1 Curtis McClendon appeals the trial court’s summary judgment granted in favor of Appellee Deep East Texas Property Management, LLC (Deep East). In one issue, McClendon argues that the trial court erred in granting summary judgment in Deep East’s favor. We affirm.

BACKGROUND

Deep East is a property management company located in Lufkin, Texas, and is owned by Charles Royston and his wife. At all times pertinent to this appeal, Deep East had two employees—McClendon, who was the property manager, and the office manager, May Dessa Thomas. McClendon’s duties as property manager generally involved maintaining Deep East’s rental properties.

On July 26, 2011, McClendon reported to Thomas that he had injured his back while moving a window air conditioning unit in conjunction with his duties as property manager. Thomas contacted Royston, who told her to take McClendon to the emergency room. Afterward, Thomas assisted McClendon in filing a workers’ compensation claim.

McClendon returned to work several days after his injury under a doctor’s order restricting him to light duty work. But since there was no light duty work available for McClendon to perform, Royston permitted McClendon to take a leave of absence. During this time, McClendon sought medical treatment and reported to Deep East concerning his condition. Deep East initially relied on independent contractors to perform the maintenance on the properties that McClendon ordinarily would perform. But due to the added expense of hiring these independent contractors and additional maintenance needs that arose during this time, Deep East hired a new maintenance person to perform McClendon’s job duties and other duties until he was able to return.

On September 19, 2011, Royston and McClendon met at a Texas Burger restaurant in Corrigan, Texas. Royston asked McClendon how he was doing. McClendon answered that he had finished physical therapy and was waiting on the results of an MRI he had undergone that morning. Without inquiring further about the prospect of McClendon’s returning to work, Royston told McClendon that Deep East was terminating his employment because Royston did not know when he would be able to return to work. In addition, according to McClendon, Royston stated that he could no longer keep McClendon because “he didn’t know how long he would be on workman’s comp.”

On October 14, 2011, McClendon filed the instant suit against Deep East for retaliatory discharge. Subsequently, Deep East filed both traditional and no evidence motions for summary judgment. By its traditional motion, Deep East challenged McClendon’s evidence supporting the element of causation under Texas Labor Code, Section 451.001. In its no evidence motion, Deep East argued that McClendon lacked evidence to support its position that Deep East’s neutral reason for terminating McClendon’s employment was untrue. Ultimately, the trial court granted Deep East’s motions for summary judgment, and this appeal followed.

SUMMARY JUDGMENT

*2 In his sole issue, McClendon argues that the trial court erred in granting summary judgment in Deep East’s favor.

Standard of Review

Because the propriety of summary judgment is a question of law, we review the trial court’s summary judgment determinations de novo. See Palestine Herald–Press Co. v. Zimmer, 257 S.W.3d 504, 508 (Tex.App.-Tyler 2008, pet. denied).

A defendant moving for summary judgment must either negate at least one essential element of the nonmovant’s cause of action or prove all essential elements of an affirmative defense. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

Workers’ Compensation Retaliation and Burden Shifting

To support his cause of action for retaliatory discharge, McClendon was required to demonstrate that his cause of action fell under TEX. LAB.CODE ANN. § 451.002 (West 2006).

*3 Texas employs a burden shifting analysis for workers’ compensation retaliatory discharge claims under Parker, 365 S.W.3d at 67.

An employee may prove the causal link between the adverse employment decision and the workers’ compensation claim by direct or circumstantial evidence. Green, 199 S.W.3d at 518–523 (reviewing circumstantial evidence identified in Continental Coffee to determine whether plaintiff established fact issue in response to summary judgment motion).

*4 Once the employee establishes a prima facie claim, including a causal link, the burden shifts to the employer to rebut the alleged discrimination by offering proof of a legitimate, nondiscriminatory reason for its actions. Benners, 133 S.W.3d at 369.

If the employer demonstrates a legitimate, nondiscriminatory reason, then the burden shifts back to the employee “to produce controverting evidence of a retaliatory motive” in order to survive a motion for summary judgment. Castor v. Laredo Cmty. Coll., 963 S.W.2d 783, 785–86 (Tex.App.-San Antonio 1998, no pet.) (holding employee failed to raise fact issue on retaliatory motive despite indulging all inferences in his favor).

Evidence of Causation

In its traditional motion for summary judgment, Deep East argued that the summary judgment evidence establishes that the necessary causal connection to establish discrimination under section 451.001 does not exist. In his response, McClendon argued that the summary judgment record contains direct evidence that satisfies the causation element. Specifically, McClendon contended that his deposition testimony concerning Royston’s use of the term “workman’s comp.” in conjunction with his terminating McClendon’s employment is direct evidence of causation sufficient to create a genuine issue of material fact. At his deposition, McClendon testified as follows:

Q. All right. On September the 19th of 2011, you had a meeting with Mr. Royston, is that correct?

A. Yes, sir.

....

Q. How did the conversation come up? How did you know you were supposed to meet?

A. I had called him after my MRI that morning and let him know that I did take it and they would have the results, they told me, within a few days or a week.

And he called me back around I want to say 11:30, maybe 12:00 or so, and asked me did I want to meet for lunch.

....

[Q.] Was the meeting cordial?

*5 A. Yeah. It was friendly, yeah.

Q. Any hostility, animosity in the meeting?

A. No ....

Q. When y’all sat down to talk, who talked first, you or him?

A. Well, actually, he asked me how things were going and I told him.

Q. Okay. What did you tell him about how things were going?

A. I told him about the MRI and that we was finished with the therapy until they come back with the MRI results. And—

Q. Let me back up. You told him that you had finished with the therapy, correct?

A. Well—

Q. The physical therapy?

A. Yes, sir. They stopped the therapy after it wasn’t working.

....

Q. All right. So you told Mr. Royston that you were still waiting on the MRI results?

A. Yes, sir.

Q. What was said next?

A. Mr. Royston told me that he had had—earlier in his years had back problems and on a back injury, you didn’t know how long they would be until they healed, or if they ever healed, and that he couldn’t hold my position and he couldn’t afford to pay Ronnie whatever he was paying him to do construction work or whatever, contractual labor, so he was letting me go and giving Ronnie my position, because he did not know when I would be able to come back to work.

....

A. Yes, sir. He said, “You can't never tell about a back injury. And that’s when he told me about his injury and how long he had problems with it. And said that he didn’t know how long he could—it would last, you know, if I would come back to work or not, so he had to do something with replacing me at my job.

And I asked Mr. Royston, I said, “Well, I haven’t even been off two whole months yet,” you know, two full months. I said, you know, “We never gave it time to heal.”

And then I asked him, I said, “And I’m still under doctor’s care. Do you know that I’m still under the doctor’s care?”

He said, “Yes.”

And I said, “So, I mean, how am I not being able to keep my job?”

And that’s when he told me that he couldn’t keep it because he didn’t know how long I would be on workman’s comp.

On appeal, McClendon argues that there could be no reason for Royston to use the words “workman’s comp.” unless that was the underlying reason for his decision to terminate McClendon. He further contends that this interpretation is bolstered by the fact that Royston did not wait to find out the results of the MRI performed on McClendon that morning. Deep East responds that Royston’s use of these words indicates nothing more than his awareness of the workers’ compensation claim, but does not amount to evidence of a causal link between Royston’s decision to terminate McClendon and McClendon’s having filed a claim.

We do not consider Royston’s statement in a vacuum. Instead, we consider the statement in the context of the entirety of the summary judgment record. Having done so, we note that apart from Royston’s allegedly telling use of the term “workman’s comp.,” there is no other evidence of record that indicates (1) Deep East or anyone associated with it had any animosity toward McClendon for his filing a workers’ compensation claim, (2) anyone expressed a negative attitude towards McClendon’s injured condition, (3) Deep East failed to adhere to established company policies, or (4) the stated reason for the discharge, i.e., Royston, who had experience with his own back injury, did not know when McClendon would be able to return to work, was false.

*6 To the contrary, the evidence reflects that Royston told Davis to take McClendon to the emergency room following his accident and that Davis, after McClendon was released from the emergency room, assisted him in filing a workers’ compensation claim. According to McClendon’s own testimony, those associated with Deep East treated him congenially. When McClendon took leave, Deep East initially hired independent contractors to perform his duties and incurred greater expense as a result before having to hire another full time maintenance person to fill in for McClendon during his leave. Finally, McClendon’s testimony concerning the meeting that culminated in his termination does not reveal any evidence that tends to indicate that Royston’s use of the term “workman’s comp.” was a revelation of his motivation for terminating McClendon. And despite McClendon’s assertions to the contrary, we do not conclude that Royston’s declining to wait for the results of McClendon’s MRI when McClendon already had been on leave for nearly two months bolsters McClendon’s interpretation of Royston’s statement.

In sum, there is evidence that Royston referred to “workman’s comp.” when he terminated McClendon’s employment with Deep East. But Royston’s mere reference to “worker’s comp.,” without more, does not constitute evidence supporting the existence of a causal connection between McClendon’s filing the workers’ compensation claim and his discharge. If anything, Royston’s choice of words establishes no more than his knowledge that McClendon had filed a workers’ compensation claim. And while knowledge of a workers’ compensation claim is considered as a factor in light of the record as a whole, it does not alone establish a causal link between the alleged discriminatory behavior and the filing of a claim. See Lone Star Steel Co. v. Hatten, 104 S.W.3d 323, 327–28 (Tex.App.-Texarkana 2003, no pet.). Therefore, we hold that the trial court did not err in granting Deep East’s traditional motion for summary judgment.1 To the extent McClendon’s sole issue pertains to the trial court’s granting of Deep East’s traditional motion for summary judgment, it is overruled.

DISPOSITION

Having overruled McClendon’s sole issue in part, we affirm the trial court’s judgment.

Footnotes

1

Because we have held that the trial court did not err in granting Deep East’s traditional motion for summary judgment on the issue of causation, we do not address whether the trial court erred in granting Deep East’s no evidence motion for summary judgment regarding whether McClendon presented controverting evidence of a retaliatory motive. See TEX.R.APP. P. 47.1.

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