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Court of Appeals of Texas, Houston (14th Dist.).

Antonio VARGAS, Appellant

v.

RIGID GLOBAL BUILDINGS, LLC, Appellee

NO. 14-20-00309-CV

|

Opinion filed June 28, 2022

On Appeal from the 127th District Court, Harris County, Texas, Trial Court Cause No. 2019-72919

Attorneys & Firms

James Erdle Jr., Christopher Chapaneri, Joseph David Zopolsky, David Wilson Dodge, Dallas, for Appellee.

Scott P. Armstrong, Joshua Lee, for Appellant.

Panel consists of Justices Jewell, Spain, and Wilson

OPINION

Randy Wilson, Justice

*1 A personal-injury claimant appeals the trial court’s confirmation of an arbitration award under the Federal Arbitration Act in favor of the claimant’s former employer, asserting that the trial court erred in denying the claimant’s petition to vacate the arbitration award. In the petition to vacate, the claimant asserted that the arbitrator exceeded his powers as well as various other alleged grounds for vacatur of the award. Concluding that the arbitrator did not exceed his powers and that the other complaints raised by claimant on appeal do not fit within any of the exclusive grounds available to challenge an arbitration award under the Federal Arbitration Act, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Antonio Vargas was employed by appellee Rigid Global Buildings, LLC. As a condition of his employment with Rigid, Vargas signed an Arbitration Agreement and Notice of Arbitration Policy (“Arbitration Agreement”) on May 26, 2017.1 In the Arbitration Agreement, Vargas agreed that “All Claims related to [Vargas’s] employment with [Rigid] arising in any part after the Effective Date [of the Arbitration Agreement], save and except any benefit claims under [Rigid’s] Occupational Injury Benefit Plan and any claims made not arbitrable by governing statute or rule, will be resolved only through mandatory binding arbitration.” Rigid is a non-subscriber under the Texas Workers’ Compensation Act.

“Claims” covered under the Arbitration Agreement “include, but are not limited to the following: (i) claims arising from any injury suffered by [Vargas] while in the Course and Scope of Employment with [Rigid], including but not limited to claims for negligence, gross negligence, and all claims for personal injuries ...; (ii) all claims relating to [Vargas’s] application with, employment with, or termination from [Rigid].” The term “Course and Scope of Employment” means an activity of any kind that has to do with the work, business, trade, or profession of [Rigid] and is performed by [Vargas] while engaged in or about the furtherance of the affairs or business of [Rigid], whether conducted on [Rigid’s] premises or elsewhere.”

Under the Arbitration Agreement, “[a]ny dispute as to whether a claim is arbitrable shall be resolved by the Arbitrator under this Arbitration Agreement.” Vargas agreed that Rigid is engaged in interstate commerce and that the Federal Arbitration Act (the “FAA”) governs all aspects of the Arbitration Agreement. In section 9 of the Arbitration Agreement Vargas also agreed to a one-year time limit for filing a claim for arbitration (the “Time Limit”):

*2 All parties must file a Claim for arbitration within one (1) year after the date of the incident or occurrence giving rise to the Claim.2 Failure to do so will result in the Claim being barred as at that one-year date. Should this time limitation become unenforceable because of applicable statute or case law, [Rigid and Vargas] agree the arbitrator may determine the appropriate limitations period in a pre-arbitration hearing[.]

The Arbitration Agreement provides that generally all parties may allege any claim, obtain any remedy, and assert any legal or equitable defense available in a Texas state or federal court and that all parties may file any motions permitted under the Texas Rules of Civil Procedure.

Vargas alleges that on or about August 19, 2017, while he was working in the course and scope of his employment with Rigid, a beam fell off a group of stacked beams and came down on Vargas’s foot, causing severe injuries to Vargas’s right toe and foot. Vargas alleges that the negligence of Rigid’s agents, servants, and employees proximately caused his personal injuries. Vargas did not file a lawsuit asserting this negligence claim against Rigid. Vargas agrees that he had to arbitrate his negligence claim under the Arbitration Agreement and that the FAA governs this arbitration.

On February 21, 2019, more than 18 months after the date of the occurrence giving rise to Vargas’s negligence claim, Vargas initiated an arbitration proceeding under the Arbitration Agreement in which he asserted his claims against Rigid, including his negligence claim. Vargas does not dispute that he initiated the arbitration more than a year after the date of the occurrence giving rise to Vargas’s negligence claim.

After an arbitrator was appointed, Rigid filed an answer and then a motion for summary judgment in the arbitration, asserting that under the Time Limit Vargas’s negligence claim was barred because Vargas did not file his claim within one year after the date of the incident or occurrence giving rise to the claim. Vargas responded in opposition to Rigid’s summary-judgment motion, agreeing that the decision as to the applicable statute of limitations was for the arbitrator and arguing that the Time Limit is contrary to public policy, substantively unconscionable, unenforceable, and void under section 16.070 of the Civil Practice and Remedies Code. Vargas also argued that the Arbitration Agreement is ambiguous as to whether Vargas must file his claims within one year after the date of the incident or occurrence giving rise to the claim or within two years after that date, under section 16.003 of the Civil Practice and Remedies Code.

The Arbitrator granted Rigid’s motion for summary judgment, concluding as follows:

• The Arbitration Agreement requires that claims be asserted within one year.

• Vargas asserted his negligence claim against Rigid in the arbitration approximately 18 months after the accident on which his claim is based and more than one year after this accident.

• The Time Limit bars Vargas’s claims against Rigid.

• The Arbitration Agreement is not unconscionable; rather it is lawful and enforceable.

• Section 16.070 of the Civil Practice and Remedies Code does not invalidate the Time Limit. Because Vargas’s claim against Rigid is not a breach-of-contract claim, section 16.070 does not apply.

*3 • Though Labor Code section 406.033 lists defenses not available to a non-subscribing employer under the Texas Workers’ Compensation Act, this statute does not invalidate the Time Limit.

• The Texas Legislature could have, but has not, enacted a statute precluding an employee from contractually reducing the statute of limitations for claims against the employee’s non-subscriber employer.

Vargas filed a motion for reconsideration of the arbitrator’s ruling. The arbitrator denied this motion. Vargas initiated this case in the trial court by filing a petition to vacate the arbitration award in favor of Rigid (the “Award”). In his petition to vacate the Award, Vargas also asserted a claim for breach of the Arbitration Agreement. Rigid filed an answer and moved to confirm the Award. Vargas amended his petition, and Rigid amended its motion. After an oral hearing, the trial court denied Vargas’s petition to vacate the Award and granted Rigid’s motion to confirm the Award. Vargas filed a notice of appeal, in which he stated that he was appealing the trial court’s final judgment.

On appeal, this court determined that the trial court’s judgment did not actually dispose of Vargas’s breach-of-contract claim and that the judgment was interlocutory. We abated this appeal to permit the trial court to take action to make its interlocutory judgment final. See Tex. R. App. P. 27.2, 27.3. During the abatement period the trial court signed a final and appealable judgment in which the court (1) denied in all respects Vargas’s petition to vacate the Award; (2) ordered that all of Vargas’s claims against Rigid be dismissed with prejudice; and (3) ordered that the Award be confirmed in all respects. This final judgment and all documents relating to it have been included in a supplemental clerk’s record in this appeal. We treat this appeal as from this final judgment, and we treat all actions relating to the appeal of the trial court’s initial interlocutory judgment as relating to the appeal of the final judgment. See Tex. R. App. P. 27.3.

II. ISSUES AND ANALYSIS

We review de novo a trial court’s decision to confirm or vacate an arbitration award. Valdes v. Whataburger Restaurants, LLC, No. 14-16-00222-CV, 2017 WL 2602728, at *2 (Tex. App.—Houston [14th Dist.] Jun. 15, 2017, no pet.) (mem. op.). Review of an arbitration award is “extraordinarily narrow” and “exceedingly deferential.” Id. Consistent with the deferential and narrow scope of review of an arbitration award, we indulge every reasonable presumption in favor of the Award and none against it. Id. We review Vargas’s challenge to the Award under a “heavy presumption” in favor of confirming the award. See id.

Under the FAA, an arbitration award must be confirmed unless it is vacated, modified, or corrected under specifically enumerated statutory grounds. See 9 U.S.C. §§ 9–11; Valdes, 2017 WL 2602728, at *2. Under the FAA, courts may vacate an arbitrator’s decision “only in very unusual circumstances.” Oxford Health Plans LLC v. Sutter, 569 U.S. 564, 568, 133 S.Ct. 2064, 2068, 186 L.Ed. 2d 113 (2013). Significantly, the grounds on which a trial court may vacate an arbitration award under the FAA are limited to those expressly identified in section 10 of the FAA, to the exclusion of all other potential grounds. See Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 584, 128 S.Ct. 1396, 1403, 170 L.Ed.2d 254 (2008); Valdes, 2017 WL 2602728, at *2. Section 10(a) of the FAA provides that a trial court may vacate an arbitration award for any one of the following reasons:

*4 (1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C. § 10(a). Vargas initiated the arbitration, and there is no order on a motion to compel arbitration or other pre-arbitration motion or application for us to review in this appeal. See Ewing v. ACT Catastrophe-Texas, L.C., 375 S.W.3d 545, 549 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). Vargas did not request a modification or correction of the Award. Thus, the only issue for this court is whether the trial court erred in denying Vargas’s petition to vacate the Award. See 9 U.S.C. §§ 9–11; Valdes, 2017 WL 2602728, at *2. In seeking vacatur of the Award under the FAA, Vargas bears a heavy burden to prove one of the above statutorily enumerated grounds. See 9 U.S.C. § 10; Valdes, 2017 WL 2602728, at *3.

A. Did the arbitrator exceed his powers?

In part of his third issue, Vargas asserts that the trial court erred in denying his petition to vacate the Award on the ground that the arbitrator exceeded his powers. This ground for vacatur is listed in section 10 of the FAA and is a valid basis for vacating an award under the FAA. See 9 U.S.C. § 10; Valdes, 2017 WL 2602728, at *2–3. To show that the arbitrator exceeded his powers, it is not enough to show that the arbitrator committed an error, or even a grave error. Oxford Health Plans LLC, 569 U.S. at 572, 133 S.Ct. at 2070. Arbitrators exceed their power when they decide a matter not properly before them. Venture Cotton Co-op v. Neudorf, No. 14-13-00808-CV, 2014 WL 4557765, at *3 (Tex. App.—Houston [14th Dist.] Sep. 16, 2014, no pet.) (mem. op.). Arbitrators derive their authority from the arbitration agreement; therefore, the power and authority of an arbitrator depends on the provisions under which the arbitrator was appointed. See id. The authority of an arbitrator is limited to a decision of the matters submitted to arbitration either expressly or by necessary implication. Cameron Intern. Corp. v. Vetco Gray, Inc., No. 14-07-00656-CV, 2009 WL 838177, at *9 (Tex. App.—Houston [14th Dist.] Mar. 31, 2009, pet. denied) (mem. op.). Arbitrators do not exceed their powers if the arbitration award has a basis that is at least rationally inferable, if not obviously drawn, from the letter or purpose of the arbitration agreement. Id. In making this inquiry, the reviewing court is not limited to the arbitrators’ explanation for the award. Id. Rather, the reviewing court looks to the result reached and determines whether the award, however arrived at, is rationally inferable from the arbitration agreement. Id.

*5 The Arbitration Agreement defines “Claims” that are covered under the agreement to include claims arising from any injury suffered by Vargas while in the course and scope of his employment with Rigid and all claims relating to Vargas’s employment with Rigid. Though he disputes the enforceability of the Time Limit, Vargas agrees that he is bound to arbitrate his negligence claim against Rigid under the Arbitration Agreement. Vargas agreed to the Time Limit and agreed that Rigid could assert defenses like the Time Limit in the arbitration by means of a motion for summary judgment. Vargas also agreed that if the Time Limit became unenforceable because of an applicable statute or case law, the arbitrator could properly determine the appropriate limitations period in a pre-arbitration hearing. Furthermore, the parties agreed that “[a]ny dispute as to whether a claim is arbitrable shall be resolved by the Arbitrator under this Arbitration Agreement.” In this delegation provision, the parties agreed that the arbitrator rather than the courts would resolve any issue as to arbitrability. See Berry Y&V Fabricators, LLC v. Bambace, 604 S.W.3d 482, 486–87 (Tex. App.—Houston [14th Dist.] 2020, no pet.); Kubala v. Supreme Prod. Servs., Inc., 830 F.3d 199, 202 (5th Cir. 2016). Vargas has not challenged the enforceability of the delegation provision. The arbitrator’s statements in the Arbitration Award show that he concluded that the issues as to whether the Time Limit is enforceable and unconscionable were subject to arbitration. The Agreement does not expressly provide that the arbitrator has the power to determine whether the Time Limit is unenforceable. Nonetheless, in context, it is rationally inferable from the Arbitration Agreement that the arbitrator has the power to apply the Time Limit and determine whether the Time Limit is enforceable. See Cameron Intern. Corp., 2009 WL 838177, at *9.

In response to Rigid’s summary-judgment motion in the arbitration asserting that the Time Limit barred Vargas’s negligence claim, Vargas made the following statements to the arbitrator:

“[Vargas] agrees that the proper tribunal for this case is in arbitration.”

“[Vargas] agrees that [the] decision regarding the applicable statute of limitations is for the arbitrator and that Texas jurisprudence supports this conclusion.”

“However, Vargas disputes that the one-year statute of limitations in the [Arbitration Agreement] is enforceable.”

Because the parties bargained for an arbitrator to apply the Time Limit and determine its enforceability, a decision by the arbitrator even arguably construing or applying the Time Limit is within the arbitrator’s powers, regardless of a court’s view of its merits or demerits. See Oxford Health Plans LLC, 569 U.S. at 569, 133 S.Ct. at 2068; Venture Cotton Co-op, 2014 WL 4557765, at *3. This court may not vacate the Arbitration Award under section 10(a)(4) of the FAA based on any alleged errors by the arbitrator in interpreting or applying the law. See Venture Cotton Co-op, 2014 WL 4557765, at *3.

On appeal, Vargas argues that the arbitrator exceeded his powers because the question of whether the Time Limit is substantively unconscionable is a question for the courts, not for the arbitrator. Under the plain text of the Arbitration Agreement, as discussed above, we conclude that this question is not for the courts and that the arbitrator did not exceed his powers by determining whether the Time Limit is substantively unconscionable. See Henry Schein, Inc. v. Archer and White Sales, Inc., ––– U.S. ––––, ––––, 139 S.Ct. 524, 527–28, 202 L.Ed.2d 480 (2019); Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 85, 123 S.Ct. 588, 592–93, 154 L.Ed.2d 491 (2002); Kubala, 830 F.3d at 202; In re Global Const. Co., L.L.C., 166 S.W.3d 795, 798–99 (Tex. App.—Houston [14th Dist.] 2005, orig. proceeding); Lujan v. Tex. Bell Jeb Apartments LLC, No. 03–13–00558–CV, 2015 WL 4072121, at *2 (Tex. App.–Austin June 30, 2015, pet. denied) (mem. op.).

Vargas cites three opinions from the Supreme Court of Texas involving motions to compel arbitration, but none of these opinions is on point because none involves the issue of vacatur of an arbitration award or a delegation provision. See G.T. Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502, 510, 519–23 (Tex. 2015); In re Labatt Food Serv., L.P., 279 S.W.3d 640, 644, 647–49 (Tex. 2009); In re Poly-America, L.P., 262 S.W.3d 337, 344–60 (Tex. 2008).

Vargas also asserts that the arbitrator exceeded his powers because the Arbitration Award displayed a manifest disregard for the law. The legal standard for determining whether the arbitrator exceeded his powers does not involve an inquiry into whether the arbitrator displayed a manifest disregard for the law, and manifest disregard for the law is not a ground on which an arbitration award under the FAA may be vacated. See Oxford Health Plans LLC, 569 U.S. at 569–72, 133 S.Ct. at 2068–70; Casa Del Mar Assoc., Inc. v. Williams & Thomas, 476 S.W.3d 96, 99–100 (Tex. App.—Houston [14th Dist.] 2015, no pet.); Venture Cotton Co-op, 2014 WL 4557765, at *3. Thus, this argument lacks merit.

*6 Vargas also contends that the arbitrator exceeded his powers because his decision was based on the Time Limit, which is a void or illegal contract provision, or because the arbitrator disregarded certain provisions of the Arbitration Agreement. In these arguments, Vargas addresses the merits of some of his challenges to the Time Limit and effectively asserts that the arbitrator erred in enforcing the Time Limit. These contentions are not relevant to the issue of whether the arbitrator exceeded his powers. See Oxford Health Plans LLC, 569 U.S. at 569, 133 S.Ct. at 2068; Denbury Onshore, LLC v. Texcal Energy South Texas, 513 S.W.3d 511, 521–22 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

Under the applicable standard of review, we conclude that the arbitrator did not exceed his powers and thus the trial court did not err in denying Vargas’s petition to vacate the Award on this ground. See Denbury Onshore, LLC, 513 S.W.3d at 520–22; Good Times Stores, Inc. v. Macias, 355 S.W.3d 240, 242–43, 245–46 (Tex. App.—El Paso 2011, pet. denied); In re Global Const. Co., L.L.C., 166 S.W.3d at 798–99; Lujan, 2015 WL 4072121, at *2. Therefore, we overrule the part of the third issue in which Vargas asserts that the trial court erred in denying his petition to vacate the Award on the ground that the arbitrator exceeded his powers.

B. Do Vargas’s other complaints fit within any of the exclusive grounds available to challenge an arbitration award under the Federal Arbitration Act?

In the remainder of the third issue, in the other two issues, and in Vargas’s arguments under these issues, Vargas asserts that the trial court erred in denying his petition to vacate the Award because:

• The Time Limit is illegal, void, and unenforceable.

• The Time Limit violates public policy for various reasons, including (1) the Time Limit violates the public policy expressed in Labor Code section 406.033; and (2) the Time Limit violates the public policy expressed in Civil Practice and Remedies Code section 16.003.

• The Time Limit is substantively unconscionable.

• The arbitrator displayed a manifest disregard of the law.

• The Time Limit is void and unenforceable because under Labor Code section 406.033, an agreement may not limit any right of an injured employee to bring a common law personal injury action against the employee’s nonsubscriber employer.

• The Time Limit prevents Vargas from effectively vindicating his statutory rights by depriving him of any venue to bring claims he is authorized by statute to assert.

Under binding precedent, including this court’s interpretation of the Hall Street Associates case from the Supreme Court of the United States, the grounds on which a trial court may vacate an arbitration award under the FAA are limited to those expressly identified in section 10 of the FAA, to the exclusion of all other potential grounds, and none of the above-listed complaints fits within any of these exclusive grounds. See Hall St. Assocs., L.L.C., 552 U.S. at 584, 128 S.Ct. at 1403 (stating that the Supreme Court held that section 10 of the FAA provides the exclusive grounds for vacatur); Valdes, 2017 WL 2602728, at *2–5 (holding that the grounds for which a trial court may vacate an arbitration award under the FAA are limited to those expressly identified in section 10 of the FAA, to the exclusion of all other potential grounds); Davis v. Bentz, No. 01-15-00230-CV, 2016 WL 3947433, at *3, *6 (Tex. App.—Houston [1st Dist.] Jul. 19, 2016, pet. denied) (holding that FAA statutory grounds for vacatur are exclusive and that even if an arbitration award under the FAA violates fundamental Texas public policy, a court may not vacate the award on that basis because it is not one of the exclusive vacatur grounds) (mem. op.); LeFoumba v. Legend Classic Homes, Ltd., No. 14-08-00243-CV, 2009 WL 3109875, at *2 (Tex. App.—Houston [14th Dist.] Sep. 17, 2009, no pet.) (holding that FAA statutory grounds for vacatur are exclusive and that even if an arbitration award under the FAA violates public policy, a court may not vacate the award on that basis because it is not one of the exclusive vacatur grounds) (mem. op.); Casa Del Mar Assoc., Inc., 476 S.W.3d at 99–100 (holding that a court may not vacate an FAA award on the ground of “gross mistake” or of “manifest disregard of the law” because neither ground fits within any of the exclusive grounds listed in section 10 of the FAA); Parallel Networks, LLC v. Jenner & Block, LLP, No. 05-13-00748-CV, 2015 WL 5904685, at *5–6 (Tex. App.—Dallas Oct. 9, 2015, pet. denied) (holding that appellant’s complaints that the arbitrator relied on a provision that is unconscionable and against public policy and that the arbitrator committed legal error were not possible bases for vacating an FAA award because none of these complaints fits within any of the exclusive grounds listed in section 10 of the FAA) (mem. op.).

*7 Vargas contends that an FAA arbitration award’s violation of public policy is a ground on which a court may properly vacate the arbitration award. In support of this contention, Vargas cites two opinions from the Supreme Court of the United States in which the high court concluded that a court may vacate an award rendered in an arbitration pursuant to a collective-bargaining agreement (“Labor Arbitration Award”) if the court concludes that the award violates public policy. See United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 42, 108 S.Ct. 364, 373, 98 L.Ed.2d 286 (1987); W.R. Grace & Co. v. Loc. Union 759, 461 U.S. 757, 766, 103 S.Ct. 2177, 2183, 76 L.Ed.2d 298 (1983). In proceedings regarding the enforcement of a Labor Arbitration Award, though courts sometimes look to the provisions of the FAA for guidance, the FAA does not govern the court’s decision whether to vacate or enforce the Labor Arbitration Award. See Misco, Inc., 484 U.S. at 40, n.9, 108 S.Ct. at 372, n.9; In re Akin Gump Strauss Hauer & Feld LLP, 252 S.W.3d 480, 493 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding). The Texas Arbitration Act does not apply to proceedings regarding the enforcement of a Labor Arbitration Award. See Tex. Civ. Prac. & Rem. Code Ann. § 171.002(a)(1) (West, Westlaw through 2021 C.S.); In re Akin Gump Strauss Hauer & Feld LLP, 252 S.W.3d at 493, n.18. Thus, although common-law vacatur grounds do not apply to arbitration awards under the FAA, common law vacatur grounds apply to a Labor Arbitration Award. See Misco, Inc., 484 U.S. at 40, n.9, 42, 108 S.Ct. at 372, n.9, 373; In re Akin Gump Strauss Hauer & Feld LLP, 252 S.W.3d at 493, n.18; Valdes, 2017 WL 2602728, at *2–5; Davis, 2016 WL 3947433, at *3, *6. In neither Misco nor W.R. Grace did the high court conclude that a public-policy vacatur ground exists under the FAA. See Misco, 4 U.S. at 36–45, 108 S.Ct. at 370–74; W.R. Grace & Co., 461 U.S. at 763–72, 103 S.Ct. at 2182–86. Neither case was decided under the FAA, and neither case is on point.

Vargas also cites the Supreme Court of Texas’s opinion in CVN Group, Inc. v. Delgado. See 95 S.W.3d 234 (Tex. 2002). In that case, the high court concluded that the common law allows vacatur of an arbitration award in the “extraordinary case in which the award clearly violates carefully articulated, fundamental [public] policy.” Id. at 239; see Jefferson County v. Jefferson County Constables Ass’n, 546 S.W.3d 661, 665 (Tex. 2018). Though a narrow public-policy vacatur ground exists as to an arbitration award reviewed under the common law, we review the Award under the FAA, not under the common law. In CVN Group, Inc. the court did not conclude that a public-policy vacatur ground exists under the FAA. See Jefferson County, 546 S.W.3d at 665; CVN Group, Inc., 95 S.W.3d at 238–39. The CVN Group case is not on point. In the LeFoumba case, this court held that the vacatur grounds listed in section 10 of the FAA are exclusive and that no public-policy vacatur ground is viable under the FAA. See LeFoumba, 2009 WL 3109875, at *2. Under this binding precedent, Vargas may not obtain vacatur of the Award based on any public policy ground. See id.

Other than his complaint that the arbitrator exceeded his powers, none of Vargas’s appellate complaints fits within any of the exclusive vacatur grounds listed in section 10 the FAA. Therefore, we do not address the merits of any of these other complaints, and we conclude that the trial court did not err in denying the Award based on any of these complaints. See Hall St. Assocs., L.L.C., 552 U.S. at 584, 128 S.Ct. at 1403; Valdes, 2017 WL 2602728, at *2–5; Davis, 2016 WL 3947433, at *3, *6; LeFoumba, 2009 WL 3109875, at *2; Casa Del Mar Assoc., Inc., 476 S.W.3d at 99–100; Parallel Networks, LLC, 2015 WL 5904685, at *5–6. Thus, we overrule the remainder of the third issue and the first and second issues.

III. CONCLUSION

Under the applicable standard of review, we conclude that the arbitrator did not exceed his powers and that the trial court did not err in denying Vargas’s petition to vacate the Award on this ground. Other than his complaint that the arbitrator exceeded his powers, none of Vargas’s appellate complaints fits within any of the exclusive vacatur grounds listed in section 10 the FAA. Therefore the trial court did not err in denying Vargas’s petition to vacate the Award based on any of these complaints. Because Vargas has not shown that the trial court erred in denying his petition to vacate the award or in granting Rigid’s motion to confirm the Award, we affirm the trial court’s final judgment.

(Spain, J., concurring without opinion).

Footnotes

1

The signed Arbitration Agreement is in Spanish, Vargas’s first language, but in this opinion we quote the title and text of the document from the English version of the document contained in the clerk’s record. Both Vargas and Rigid submitted the English version of the Arbitration Agreement to the trial court, along with the Arbitration Agreement in Spanish, and no party has asserted that the English version is not an accurate translation of the document Vargas signed.

2

Emphasis in the original

Court of Appeals of Texas, Houston (14th Dist.).

BERTOLDO BALDERAS, AS NEXT FRIEND OF RIGOVERTO BALDERAS, Appellant

v.

ZURICH AMERICAN INSURANCE COMPANY, Appellee

NO. 14-20-00262-CV

|

filed April 28, 2022

On Appeal from the 55th District Court Harris County, Texas

Harris County, Texas

Trial Court Cause No. 2017-81573

Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.

MEMORANDUM OPINION

Margaret “Meg” Poissant Justice

*1 Affirmed and Memorandum Opinion filed April 28, 2022.

The Texas Workers’ Compensation Act (“TWCA”) provides that the recovery of workers’ compensation benefits is the exclusive remedy for a legal beneficiary of an employee covered by workers’ compensation insurance for a work-related death or injury. Tex. Lab. Code Ann. § 408.001(a). If the employee is intoxicated at the time of the injury, then the TWCA bars the employee from recovering compensation from an insurance company. Id. § 406.032(1)(A). The TWCA further provides avenues for judicial review of an administrative decision by the Division of Workers’ Compensation (“DWC”) of the Texas Department of Insurance (“TDI”) regarding compensability or eligibility for the amount of income or death benefits. See Tex. Gov’t Code Ann. §§ 2001.171–.178; Tex. Lab. Code Ann. §§ 410.251, 410.252, 410.255, 410.301.

In this appeal, appellant Bertoldo Balderas, as next friend of his son Rigoverto Balderas, seeks review of the trial court’s judgment following an appeal from an adverse administrative decision by a DWC appeals panel.1 The trial court granted appellee Zurich American Insurance Company (“Zurich”) a partial summary judgment, ruling that Rigoverto’s employer was CorTech, LLC (“CorTech”) and that CorTech had a workers’ compensation insurance policy issued by Zurich. Following a trial, the jury found Rigoverto was intoxicated at the time of his injury.

In six issues we have rephrased and reorganized, Bertoldo argues that the trial court erred by (1) giving deference to the decision by the administrative law judge (“ALJ”), (2) considering Zurich’s summary-judgment evidence, and (3) entering an interlocutory partial summary judgment that Rigoverto was an employee of CorTech, and further argues that (4) there is legally insufficient evidence that Rigoverto was intoxicated, (5) there was an error in the jury charge, and (6) the admission of Rigoverto’s laboratory blood results violated his constitutional rights and guarantees. We affirm.

I. BACKGROUND

At approximately 9:00 a.m. on December 17, 2015, Rigoverto sustained injuries while at work at Houston Foam Plastics (“HFP”). While in the process of dumping Styrofoam into a grinder, Rigoverto’s left arm was pulled into the machine, causing serious injuries to his left arm, upper left body, and his face. An ALJ determined that: (1) Rigoverto’s employer at the time of his injury was CorTech, who carried a workers’ compensation insurance policy issued by Zurich; and (2) Rigoverto was precluded from obtaining benefits under the policy because he was intoxicated at the time of his injury. Rigoverto pursued review by an administrative appeals panel, which affirmed the ALJ’s decision. Rigoverto then sought judicial review of the appeals panel’s decision in the district court. See Tex. Lab. Code Ann. §§ 410.251, 410.301(a).2

A. PARTIAL SUMMARY JUDGMENT

*2 At the trial court, Zurich filed a traditional motion for partial summary judgment, arguing that CorTech was Rigoverto’s employer at the time of his injuries and that CorTech was covered by a workers’ compensation insurance policy issued by Zurich. Zurich attached multiple exhibits in support of its motion, including: copies of the decisions by the appeals panel and the ALJ; relevant pages of CorTech’s workers’ compensation insurance policy with Zurich; copies of Rigoverto’s pay checks for pay periods preceding his injury showing his employer as “Port City Staffing”; a Client Services Agreement between HFP and “Port City Staffing”; an Asset Purchase Agreement between CorTech and Job Express of Wyoming, Inc. (“Job Express”); Job Express’s assumed name certificate from the Texas Secretary of State for the name “Port City Staffing”; copies of Rigoverto’s pay checks showing CorTech as his employer on the date of his injury, following the Asset Purchase Agreement completed on November 30, 2015; documentation from TDI showing CorTech carried a workers’ compensation policy issued by Zurich; an affidavit by Michael Greco, CorTech’s in-house counsel; and an affidavit by Stan Braun, Zurich’s adjuster assigned to Rigoverto’s claim.

Bertoldo filed his own competing traditional motion for partial summary judgment, arguing that Rigoverto’s employer was Port City Staffing and that Port City Staffing was not covered by a workers’ compensation insurance policy at the time of Rigoverto’s injuries. Bertoldo also objected to all of Zurich’s summary judgment exhibits. On November 14, 2018, without ruling on Bertoldo’s evidentiary objections, the trial court signed an interlocutory order granting Zurich’s partial motion for summary judgment and denying Bertoldo’s motion.

B. JURY TRIAL

Prior to trial on the issue of intoxication, Bertoldo filed a motion seeking to exclude the lab results of a blood test performed on Rigoverto at 10:16 a.m. on December 17, 2015 while Rigoverto was treated at a hospital, which showed Rigoverto’s blood alcohol concentration (“BAC”) to be 0.117.3 Bertoldo presented multiple arguments in support of his assertion that the lab results were unreliable and would mislead the trier of fact. Bertoldo supplemented his motion to exclude, arguing that the results were inadmissible under the Health Information Portability and Accountability Act (“HIPAA”) because Rigoverto did not consent to the blood test. The trial court denied Bertoldo’s motion to exclude.

At trial, Bertoldo presented testimony from Douglas Posey, M.D. (“Dr. Posey”), an expert in forensic pathology and forensic toxicology. During Posey’s testimony, Bertoldo introduced part of Rigoverto’s medical records from the hospital into evidence, including records which revealed Rigoverto’s BAC of 0.117 at 10:16 a.m. Zurich presented testimony from Patricia Rosen, M.D. (“Dr. Rosen”), a medical toxicologist with board certifications in internal medicine, emergency medicine, and medical toxicology. Using a retrograde extrapolation calculation,4 Dr. Rosen testified that she estimated Rigoverto’s whole-blood BAC was 0.098 at 10:16 a.m. and 0.123 at the time of his injuries.

After the parties rested, Bertoldo moved for a directed verdict on the bases that no evidence was presented of Rigoverto’s whole-blood alcohol concentration, or Zurich did not present evidence demonstrating that Rigoverto did not have the normal use of his mental and physical faculties. See id. § 401.013(a) (defining “intoxication”); see also Tex. Penal Code Ann. § 49.01(2) (defining “intoxicated”). The trial court denied the motion.

At the jury charge conference, Bertoldo objected to the jury charge on the bases that it: (1) informed the jury of the DWC’s reliance of Rigoverto’s BAC measurement of 0.117 without distinguishing that it was serum instead of whole-blood, thereby failing to meet the standard for BAC in Navarro v. State, 469 S.W.3d 687 (Tex. App.—Houston [14th Dist.] 2015, pet. ref’d); (2) did not include an explanation of the legal standard for retrograde extrapolation calculation, contrary to the Texas Court of Criminal Appeals’ opinion in Mata v. State, 46 S.W.3d 902 (Tex. Crim. App. 2001); and (3) violated the de novo standard of review articulated by the Texas Supreme Court in Quick v. City of Austin, 7 S.W.3d 109 (Tex. 1999) because the charge included that the administrative decision was based on a BAC of 0.117 that was proven with inadmissible evidence. The trial court overruled the objections and rejected Bertoldo’s proposed charge.

*3 The jury found that Rigoverto’s injury occurred while he was intoxicated. On March 9, 2020, the trial court signed a final judgment affirming the appeals panel’s decision. Bertoldo timely appealed.

II. JUDICIAL REVIEW OF ADMINISTRATIVE APPEALS PANEL’S DECISION

The TWCA provides that the recovery of workers’ compensation benefits is the exclusive remedy of the employee or the employee’s legal beneficiary against the employer for a work-related injury or death sustained by the employee if an employee is covered by workers’ compensation insurance. Tex. Lab. Code Ann. § 408.001(a); W. Steel Co. v. Altenburg, 206 S.W.3d 121, 123 (Tex. 2006) (per curiam). At the administrative level, disputed claims for benefits proceed through a three-step process: a benefit-review conference, a contested-case hearing, and an administrative appeal. Tex. Workers’ Compensation Com’n v. Garcia, 893 S.W.2d 504, 514 (Tex. 1995); see Tex. Lab. Code Ann. §§ 410.021–.034, 410.151–.169, 410.201–.209; see also State Office of Risk Mgmt. v. Martinez, 539 S.W.3d 266, 268–69 (Tex. 2017). A party who has exhausted his administrative remedies and is aggrieved by a final decision of the appeals panel may seek judicial review. Tex. Lab. Code Ann. §§ 410.251–.252; Cont’l Cas. Ins. v. Functional Restoration Assocs., 19 S.W.3d 393, 398 (Tex. 2000).5

If a party seeks judicial review of a final appeals panel’s decision regarding “compensability or eligibility for or the amount of income or death benefits,” then the district court reviews the appeals panel’s decision under a modified de novo standard of review. Rodriguez v. Serv. Lloyds Ins., 997 S.W.2d 248, 253 (Tex. 1999); see Tex. Lab. Code Ann. § 410.304; In re Tyler Asphalt & Gravel Co., 107 S.W.3d 832, 841 (Tex. App.—Houston [14th Dist.] 2003, orig. proceeding). The “modified de novo review” means that the factfinder is informed of the appeals panel’s decision but is not required to accord it any weight. See Garcia, 893 S.W.3d at 515; In re Tyler Asphalt & Gravel Co., 107 S.W.3d at 84. The party appealing the final decision of the appeals panel bears the burden of proof by a preponderance of the evidence. Tex. Lab. Code Ann. § 410.303.

In a bench trial, the court in rendering its judgment on any issue concerning compensability or eligibility for or the amount of income or death benefits shall consider the decision of the appeals panel. Id. § 410.304(b); see Tex. Mut. Ins. v. Sonic Sys. Int’l, Inc., 214 S.W.3d 46, 476 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). In a jury trial, the court, before submitting the case to the jury, informs the jury in the court’s instructions, charge, or questions to the jury of the appeals panel’s decision on each disputed issued concerning compensability or eligibility for or the amount of income or death benefits. Tex. Lab. Code Ann. § 410.304(a).

III. ALJ’S DECISION

*4 In the title for his first issue, Bertoldo argues that “[t]he trial court gave deference to the ALJ’s decision that vitiated official seal agency documents regarding ‘coverage.’ ” However, under this issue, Bertoldo argues that the ALJ erred in considering certain evidence to reach her findings that: (1) CorTech was Rigoverto’s employer, and (2) Rigoverto was intoxicated at the time of his injury. Notably, Bertoldo does not argue that the trial court erred in granting Zurich’s motion for summary judgment based on any of the evidence considered by the ALJ, nor does he argue that the ALJ’s decision or any of the other evidence discussed under this issue created an issue of fact supporting a denial of summary judgment. See Tex. R. Civ. P. 166a. Furthermore, Bertoldo does not articulate how the trial court improperly deferred to the ALJ’s decision while carrying out its de novo review as mandated by statute. See Tex. Lab. Code Ann. § 410.304.

Here, the judgment before us is the trial court’s judgment following the modified de novo review of the DWC appeals panel’s decision. See id.; Rodriguez, 997 S.W.2d at 253. Accordingly, the propriety of the ALJ’s decision itself or of the evidence considered by the ALJ are immaterial to our determination of whether reversible error exists in the trial court’s judgment. See Tex. R. App. P. 44.1(a)(1) (providing that no error shall be reversed on appeal on the ground that the trial court made an error of law unless the appellate court concludes the error probably caused the rendition of an improper judgment); see also Tex. Labor Code Ann. § 410.302(a) (“The records of a contested case hearing conducted under this chapter are admissible in a trial under this subchapter in accordance with the Texas Rules of Evidence.”); id. § 410.306(a) (providing that, in a judicial appeal from a DWC appeals panel’s decision, “Evidence shall be adduced as in other civil trials.”); In re Tyler Asphalt, 107 S.W.3d at 841–842 (“New evidence (other than that presented to the hearing officer), as well as the [DWC’s] record, is admissible at trial.” (citing Tex. Lab. Code Ann. § 410.306(a), (b))).

For the reasons discussed below in part V, we conclude that Zurich established its right to summary judgment as a matter of law, irrespective of the ALJ’s decision. Accordingly, we reject Bertoldo’s broad assertion that the trial court erred by giving deference to the ALJ’s decision and overrule his first issue.6 See Tex. Lab. Code Ann. § 410.304; Martinez, 539 S.W.3d at 277–78; In re Tyler Asphalt & Gravel Co., 107 S.W.3d at 841.

IV. SUMMARY-JUDGMENT EVIDENCE

In his second issue, Bertoldo argues that Zurich did not meet its summary judgment burden and reasserts his objections to Zurich’s summary-judgment evidence.

A. STANDARD OF REVIEW

We review the trial court’s ruling on the admissibility of evidence for an abuse of discretion. Gharda USA, Inc v. Control Sols., Inc., 464 S.W.3d 338, 347 (Tex. 2015). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).

B. APPLICABLE LAW

Summary-judgment evidence must be presented in a form that would be admissible at trial. In Estate of Guerrero, 465 S.W.3d 693, 706 (Tex. App.— Houston [14th Dist.] 2015, pet. denied) (en banc). “It is well settled that while ‘[t]he same evidentiary standards that apply in trials also control the admissibility of evidence in summary-judgment proceedings,’ ‘the rules of error preservation also apply.’ ” FieldTurf USA, Inc. v. Pleasant Grove Indep. Sch. Dist., No. 20-0507, ___ S.W.3d ___, ___, 2022 WL 627769, at *6 (Tex. Mar. 4, 2022) (quoting Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 163–64 (Tex. 2018) (per curiam)); see also In Estate of Guerrero, 465 S.W.3d at 707 (“Objections to defects in the substance of summary-judgment proof are not required to be first presented to, and ruled on by, the trial court.”).

*5 A ruling on objections to summary-judgment evidence may be implied, but only if the implication was clear. See Seim, 551 S.W.3d at 166 (noting that an order granting a party’s motion for summary judgment does not in itself clearly imply a ruling sustaining the party’s objections to summary judgment evidence, at least where “sustaining the objections was not necessary for the trial court to grant summary judgment”); see, e.g., Fortitude Energy, LLC v. Sooner Pipe LLC, 564 S.W.3d 167, 179 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (concluding that trial court implicitly overruled objections to summary-judgment evidence when the trial court added handwritten notes to the order providing that the trial court considered “all summary judgment evidence”); see also In re State, No. 14-18-01036-CV, 2018 WL 6722351, at *3 (Tex. App.—Houston [14th Dist.] Dec. 21, 2018, no pet.) (mem. op.) (“An implied ruling can be found only where the trial court’s actions or other statements in the record unquestionably indicate a ruling.”).

B. ANALYSIS

Bertoldo lodged objections to all of Zurich’s summary-judgment exhibits. On appeal, Bertoldo argues that the trial court erred by implicitly overruling his objections when it signed the order granting Zurich’s motion. Zurich argues that Bertoldo waived his evidentiary challenges by failing to secure a ruling on his objections. We agree with Zurich.

The trial court’s order granting Zurich’s partial motion for summary judgment provides:

Upon consideration of Plaintiffs Amended Traditional Motion for Partial Summary Judgment (the “Plaintiffs Motion” filed 10/19/2018), Defendant’s Counter-Motion for Partial Summary Judgment (the “Defendant’s Motion” filed 10/15/2018), summary judgment evidence and numerous evidentiary objections, the Court rules as follows:

The Court has worked through a mountain of irrelevant fact disputes and has found a very stubborn factual and material molehill at the bottom: On the date in question Mr. Balderas was employed by Cortech, LLC, which was a covered employer. The Division of Workers’ Compensation got it right. The Plaintiffs Motion is DENIED; the Defendant’s Motion is GRANTED.

The trial court’s order provides that the court considered “numerous evidentiary objections,” but it is not clear from the order which objections the trial court overruled or sustained. Accordingly, we conclude that Bertoldo failed to obtain a ruling on his objections, and therefore, he failed to preserve this issue for our review. See Tex. R. App. P. 33.1(a); Delfino v. Perry Homes, 223 S.W.3d 32, 35 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (“[A] trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not ‘capable of being understood’ from the ruling on the motion for summary judgment.”); Chapman Children’s Tr. v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 436 n.4 (Tex. App.— Houston [14th Dist.] 2000, pet. denied) (noting that it is the responsibility of the objecting party to obtain a ruling at or before the time the trial court rules on the summary judgment motion). We overrule Bertoldo’s second issue.

V. SUMMARY JUDGMENT

In his third issue, Bertoldo challenges the trial court’s partial summary judgment in favor of Zurich. Bertoldo argues that Rigoverto was not an employee covered by a worker’s compensation insurance policy because (1) “undisputed unambiguous contract documents establish Port City Staffing as [Rigoverto’s] employer” and (2) Port City Staffing was not covered under a worker’s compensation insurance policy. Rigoverto further argues that, because he was not covered by a workers’ compensation policy, the trial court lacked jurisdiction.

A. STANDARD OF REVIEW

*6 We review the trial court’s rendition of summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156 (Tex. 2004). To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). In reviewing the grant of a traditional motion for summary judgment, we consider all the evidence in the light most favorable to the nonmovant, indulging all reasonable inferences in favor of the nonmovant, and determine whether the movant proved that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985); see Tex. R. Civ. P. 166a(c). When, as here, the parties file cross-motions for summary judgment on overlapping issues, and the trial court grants one motion and denies the other, we review the summary judgment evidence supporting both motions and render the judgment that the trial court should have rendered. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

B. APPLICABLE LAW

Under the TWCA, “Employer” means, “unless otherwise specified, a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.” Tex. Labor Code Ann. § 401.011(18); see also Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 140–43 (Tex. 2003) (concluding that an employee may have more than one employer for purposes of the TWCA). The TWCA also defines “employee” as “each person in the service of another under a contract of hire, whether express or implied, or oral or written.” Tex. Lab. Code Ann. § 401.012(a); Wingfoot, 111 S.W.3d at 138.

“[A]n employer has ‘workers’ compensation insurance coverage’ if the employer has either obtained an approved insurance policy or secured the payment of compensation through self-insurance as provided under the [TWCA].” Wingfoot, 111 S.W.3d at 137 (citing Tex. Lab. Code Ann. § 401.011(44)). An “assumed name” is not itself a legal entity but rather a word or phrase by which a person may be made known to the public. CA Partners v. Spears, 274 S.W.3d 51, 69 n.11 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); see Matice Enters., Inc. v. Gibson, No. 01-04-00913-CV, 2005 WL 1838018, at *5 (Tex. App.— Houston [1st Dist.] Aug. 4, 2005, no pet.) (mem. op.) (“[A]dding ‘d/b/a’ to a name does not constitute the creation of a separate legal capacity; rather, it is a term of identification.”); see also Tex. Bus. Orgs. Code Ann. § 5.051 (“A domestic entity ... having authority to transact business in this state may transact business under an assumed name by filing an assumed name certificate ....”); Fettner v. Daniel Jackson & Assocs., P.C., 14-19-00497-CV, 2021 WL 126396, at *2 (Tex. App.—Houston [14th Dist.] Jan. 14, 2021, no pet.) (mem. op.) (“ ‘D/b/a,’ which means ‘doing business as,’ indicates that the person or business whose name precedes the acronym uses an assumed name.”) (footnote omitted).

C. ANALYSIS

On appeal, Bertoldo refers us to the Client Services Agreement, signed on December 5, 2015, between HFP and Port City Staffing, stating that Port City Staffing would provide HFP with employees. Bertoldo argues that the Client Services Agreement between HFP and Port City Staffing was executed after the Asset Purchase Agreement between CorTech and Job Express, and that the Client Services Agreement does not contain any reference to CorTech. Thus, Bertoldo argues, this evidence raises a fact issue as to whether Rigoverto’s employer was Port City Staffing or CorTech. Bertoldo’s argument, however, is premised on Port City Staffing being a separate entity from CorTech and from Job Express, and the record conclusively establishes that Port City Staffing was an assumed name for Job Express that was purchased by CorTech, not a separate entity. See CA Partners, 274 S.W.3d at 69 n.11; Fettner, 2021 WL 126396, at *2.

*7 Here, Rigoverto’s pay checks prior to the Asset Purchase Agreement listed Port City Staffing as his employer. However, following the Asset Purchase Agreement (and the Client Services Agreement), executed November 30, 2015, Rigoverto’s pay checks listed CorTech as his employer. Furthermore, the Asset Purchase Agreement provides that CorTech purchased the following assets from Job Express:

Assets of the Business include, but are not limited to, all assets on current balance sheet, Clients, Relationships, any equipment, trade fixtures, leasehold, leasehold improvements, contract rights, software and software licenses, databases, other licenses, franchises, goodwill, covenant not to compete, trade secrets, patents, intellectual property, trade name(s) including JEX Staffing and Port City Staffing, Temps under billing, customer lists, telephone and fax numbers, works in progress, orders in process, and finished products ....

Greco’s affidavit, which was attached to Zurich’s motion for summary judgment, provides that:

When CorTech acquired the new business, the employees of Job Express of Wyoming, Inc. d/b/a Port City Staffing and JEX Staffing became CorTech employees and a notice of workers’ compensation insurance coverage in the form of a Certificate of Liability Insurance was issued by Zurich ... to JEX Staffing ‘A CorTech Company’ under CorTech’s workers’ compensation policies ....

We conclude that Zurich proved as a matter of law that Port City Staffing was an assumed name for CorTech and that CorTech was Rigoverto’s employer at the time of his injury. See Wingfoot, 111 S.W.3d at 142–43, 149; Bailey, 894 S.W.2d at 759; CA Partners, 274 S.W.3d at 69 n.11.

As to whether CorTech was covered by a workers’ compensation insurance policy, CorTech submitted as part of its summary judgment proof a copy of its policy with Zurich, the affidavit of Braun, and certified copies of relevant TDI records. The policy issued by Zurich lists the insured as “CORTECH, LLC; CORTECH INTERNATIONAL AR LLC; CORTECH REALTY LLC 901 ABERNATHY RD UNIT 100 ATLANTA GA 30328.” The policy also provides that it is applicable in Texas from September 1, 2015, through September 1, 2016. Braun’s affidavit provides:

On November 30, 2015, Zurich received direction from CorTech to extend workers’ compensation insurance coverage under CorTech’s policy to JEX Staffing “A CorTech Company”.

When CorTech acquired the new business a notice of workers’ compensation insurance coverage in the form of a Certificate of liability Insurance was issued by Zurich ... to JEX Staffing “A CorTech Company” under CorTech’s workers’ compensation policies 5611530-02 and WC 5611531-02. See Exhibit 2, a true and correct copy of the Certificate of Liability Insurance for JEX Staffing “A CorTech Company”. See also Exhibit 3, a true and correct copy of CorTech’s workers’ compensation policy WC5611531-02, which extends coverage to JEX Staffing “A CorTech Company”. It is the position of Zurich American Insurance Company that Port City Staffing and JEX Staffing were covered by CorTech’s workers’ compensation insurance policy, and I have reviewed documentation in the course of my investigation of the claim that supports Rigoverto Balderas was the employee of CorTech. He was paid by CorTech, as shown by his pay check statement, attached hereto as Exhibit 4.

My investigation into the coverage question on this claim reveals that JEX Staffing d/b/a Port City Staffing was covered by CorTech’s worker’s compensation policy on the date of injury.

*8 The records from TDI indicate that CorTech had a workers’ compensation insurance policy issued by Zurich from September 1, 2015, through September 1, 2016. We conclude that CorTech proved as a matter of law that it was covered by a workers’ compensation policy at the time of Rigoverto’s injuries.

Bertoldo argues next that CorTech did not establish as a matter of law that it was covered by a workers’ compensation insurance policy because the endorsements for CorTech’s policy with Zurich did not list “Port City Staffing.” We reject this argument because, as noted above, an assumed name is not a separate entity but rather a word or phrase by which a company may be known to the public, and the policy at issue here listed CorTech as an insured entity. See CA Partners, 274 S.W.3d at 69 n.11; Matice Enters., Inc., 2005 WL 1838018, at *5.

Finally, Bertoldo argues that CorTech did not establish as a matter of law that it was covered by a workers’ compensation insurance policy because the endorsements for CorTech’s policy with Zurich did not list a Houston address. In support of his argument, Bertoldo points to an opinion from the Eastland court of appeals. See Morales v. Martin Res., Inc., 183 S.W.3d 469, 472 (Tex. App.— Eastland 2005, no pet.).

In Morales, the injured worker was an employee of Select Professional Staffing and was at the same time placed as a temporary employee with Martin Resources, Inc., located in Odessa, Texas. Id. at 470. After suffering an injury at Martin Resources, Inc.’s plant in Odessa, Morales brought suit against Select Professional Staffing; Martin Resources, Inc.; and Martin Operating Partnership, L.P. Id. The trial court found, following the submission of a motion for summary judgment, that Martin Resources, Inc. was covered by a workers’ compensation policy. Id. The Eastland court of appeals reversed because it concluded that a fact issue existed as to whether Martin Resources, Inc.’s facility in Odessa was covered by workers’ compensation insurance. Id.

In reaching its conclusion, the Eastland court relied on the language in the policy and the policy’s endorsements:

Martin Resources, Inc. also submitted a workers’ compensation insurance policy as summary judgment evidence. The policy named “Martin Resource Management Corporation” as the insured .... A “Martin Resources, Inc.,” located in Kilgore, Texas, was listed in an endorsement to the policy. A “Martin Resource Management Corporation,” located in Odessa, Texas, was also listed in an endorsement to the policy. However, a “Martin Resources, Inc.,” located in Odessa, Texas, was not listed as an insured in the policy or in any endorsement to the policy. Martin Resources, Inc. did not present any summary judgment evidence showing (1) the relationship, if any, between Martin Resources, Inc. in Kilgore and Martin Resources, Inc. in Odessa or (2) the relationship, if any, between Martin Resource Management Corporation and Martin Resources, Inc. in Odessa. In the absence of any evidence explaining the relationship, if any, among these entities, the insurance policy presented by Martin Resources, Inc. created a fact issue as to whether Martin Resources, Inc. had workers’ compensation insurance covering its Odessa facility.

Id. at 473.

Here, CorTech is listed as the insured in the policy, Rigoverto’s injury did not occur on CorTech’s premises or facility, and CorTech’s policy with Zurich does not create a fact issue as to whether CorTech was covered by a workers’ insurance policy in Texas. Cf. id. Thus, we are not persuaded by Bertoldo’s reliance on this authority. We overrule Bertoldo’s third issue.

VI. JURY’S INTOXICATION FINDING

*9 In his fourth issue, Bertoldo argues that there is no legally admissible proof that Rigoverto was intoxicated. We construe Bertoldo’s issue as a challenge to the legal sufficiency of the evidence underlying the jury’s finding.7

A. STANDARD OF REVIEW & APPLICABLE LAW

The TWCA defines “intoxication” as (1) having an alcohol concentration as needed to qualify as intoxicated under § 49.01(2) of the Texas Penal Code, or (2) not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of an alcoholic beverage, or other substances, regulated under state law. Tex. Labor Code Ann § 401.013(a); see Tex. Penal Code Ann. § 49.01(2)(B) (defining “intoxicated” as “having an alcohol concentration of 0.08 or more” per 100 milliliters of blood); see also id. § 49.01(2)(A) (defining “intoxicated” as “not having the normal use of mental or physical faculties by reason of the introduction of alcohol, a controlled substance, a drug, a dangerous drug, a combination of two or more of those substances, or any other substance into the body”). Because Bertoldo is appealing from an adverse decision by the appeals panel, Bertoldo bore the burden of proof in the trial court to prove by a preponderance of the evidence that Rigoverto was not intoxicated at the time of his injury. See Tex. Lab. Code Ann. § 410.303; see also Transcontinental Ins. v. Crump, 330 S.W.3d 211, 214 (Tex. 2010).

When a party attacks the legal sufficiency of an adverse finding on an issue on which he has the burden of proof, he must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). “In reviewing a ‘matter of law’ challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary.” Id. “If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law.” Id. “The point of error should be sustained only if the contrary proposition is conclusively established.” Id.

B. ANALYSIS

We must determine if there is any evidence that supports the jury’s finding that Rigoverto was intoxicated at the time of his injury.8 See id. If there is no evidence to support that finding, then we will review the entire record to determine whether the evidence conclusively established that Rigoverto was not intoxicated at the time of his injury. See id.

Here, the jury heard evidence that Bertoldo’s blood tests performed at the hospital at 10:16 a.m., approximately one hour after he suffered his injuries, revealed a BAC of 0.117. While Dr. Posey testified that he believed Rigoverto’s blood tests at the hospital were performed on serum instead of whole blood, he conceded that he was not certain whether the hospital performed Rigoverto’s blood alcohol test on plasma or serum.

*10 Dr. Rosen testified that there were two measurements of Rigoverto’s BAC taken at the hospital: (1) a test at 10:16 a.m., which indicated a BAC of 0.117; and (2) a test at 12:30 p.m., which indicated a BAC of 0.066. Using these measurements, Dr. Rosen calculated Rigoverto’s whole blood BAC at the time of his injury to be “142 milligrams per deciliter or 0.123 ....” We conclude that there is some evidence supporting the jury’s finding that Rigoverto was intoxicated when he suffered his injuries. See Tex. Labor Code Ann § 401.013(a); Tex. Penal Code Ann. § 49.01(2)(B); Dow Chem. Co., 46 S.W.3d at 242.

Bertoldo argues that the evidence is insufficient to prove intoxication, which he argues can only be proven with test results performed on whole blood, not blood serum, and that “Dr. Rosen’s retrograde extrapolation is ‘junk science’ ....” In support of this contention, Bertoldo points to an opinion from the Texas Court of Criminal Appeals and an opinion from this court in a criminal appeal. See Mata, 46 S.W.3d at 908–09; Navarro, 469 S.W.3d at 696–98.

Contrary to Bertoldo’s argument, Mata does not stand for the propositions that (1) BAC may only be proven by tests performed on whole blood, as opposed to serum; or (2) retrograde extrapolation is “junk science.” In Mata, an appeal from a conviction for driving while intoxicated, the court of criminal appeals noted that it is the trial court’s responsibility to determine whether proffered scientific evidence is sufficiently reliable and relevant to the jury. Mata, 46 S.W.3d at 908. The question before the court was whether the expert’s testimony in that case established that the retrograde extrapolation calculation conducted in that case was reliable, not whether the scientific application of retrograde extrapolation was itself unreliable. See id. at 904, 914–16 (“We believe that the science of retrograde extrapolation can be reliable in a given case.”). The court further noted that

[i]f the State had more than one test, each test a reasonable length of time apart, and the first test were conducted within a reasonable time from the time of the offense, then an expert could potentially create a reliable estimate of the defendant’s BAC with limited knowledge of personal characteristics and behaviors.

Id. at 916. Notably, Mata does not mention serum or whole blood. Accordingly, we reject Bertoldo’s argument that the opinion in Mata mandates that there was no evidence here that Rigoverto’s BAC was higher than 0.08 at the time of his injury.

Navarro, an opinion from this court in another appeal from a driving while intoxicated conviction, involved retrograde extrapolation as a method for calculating whole blood BAC from blood serum BAC measurements. See Navarro, 469 S.W.3d at 697. At issue in Navarro was the BAC required as an element of the class A misdemeanor offense of driving while intoxicated, which is at least 0.15. Id. at 696–97. This court noted that “blood,” as used in the Penal Code, means “whole blood.” See id. at 697–98. Notably, we stated in Navarro that “[t]he State’s expert converted the blood plasma results using a scientifically accepted method and concluded that appellant’s whole blood had a BAC of 0.132.” Id. at 697. However, because there was no testimony that appellant’s whole blood had a BAC that was 0.15 or more at the time the analysis was performed—a necessary element of the offense there—we agreed that the trial court’s finding of that element was unsupported by the record. Id. at 698. Contrary to Bertoldo’s argument, we did not conclude that an individual’s BAC may only be proved through a laboratory analysis of whole blood. See id. at 697–98. Accordingly, we reject Bertoldo’s argument that Navarro mandates that there was no evidence here that Rigoverto’s BAC was higher than 0.08 at the time of his injury.

*11 We overrule Bertoldo’s fourth issue.

VII. JURY CHARGE

In his fifth issue, Bertoldo argues there was error in the charge because it contained conflicting information. Bertoldo argues that the information was conflicting because the ALJ’s decision “was based on the unconsented serum screening,” while the jury charge instructed the jury that “blood” means “whole blood.”

A. APPLICABLE LAW & STANDARD OF REVIEW

The trial court shall submit such instructions and definitions as shall be proper to enable the jury to render a verdict. Transcon. Ins., 330 S.W.3d at 221 (citing Tex. R. Civ. P. 277). “An instruction is proper if it (1) assists the jury, (2) accurately states the law, and (3) finds support in the pleadings and evidence.” Union Pac. R.R. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002) (citing Tex. R. Civ. P. 278). As relevant to this case, the Labor Code requires that before submitting the case to the jury, the trial court must inform the jury in the court’s charge of the appeals panel’s decision on each disputed issued concerning compensability or eligibility. Tex. Lab. Code Ann. § 410.304(a).

We review a trial court’s decision on jury charge issues for an abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam); Sloane v. Goldberg B’Nai B’Rith Towers, 577 S.W.3d 608, 616 (Tex. App.— Houston [14th Dist.] 2019, no pet.). A trial court’s jury charge error is reversible error only if the error probably caused the rendition of an improper verdict. Tex. R. App. P. 44.1(a)(1); Sloane, 577 S.W.3d at 616.

B. ANALYSIS

Bertoldo complains of the following additional instruction in the jury charge: “The Texas Department of Insurance, Division of Workers’ Compensation, determined that at the time of his injury, Rigoverto Balderas had a blood alcohol concentrate of .117 and also determined that Rigoverto Balderas’ injury occurred while he was in a state of intoxication.” (emphasis in original). Contrary to Bertoldo’s argument, the trial court is required by statute to inform the jury in the court’s charge of the appeals panel’s decision on each disputed issued concerning compensability or eligibility. See Tex. Lab. Code Ann. § 410.304(a). Thus, we cannot conclude that the trial court erred when it overruled Bertoldo’s objections to the jury charge. See id.; Worford, 801 S.W.2d at 109. Furthermore, the charge correctly informed the jury that “blood” means whole blood and it correctly instructed the jury that, to find Rigoverto was intoxicated at the time of his injuries, it must find that his whole blood BAC was higher than 0.08 or that Rigoverto did not have normal use of his mental or physical faculties resulting from the voluntary consumption of alcohol. We presume that the jury followed the trial court’s instructions in the absence of evidence to the contrary. In re Commitment of Baiza, 633 S.W.3d 743, 753 (Tex. App.—Houston [14th Dist.] 2021, no pet.); see Shannon Med. Ctr. v. Triad Holdings, III, L.L.C., 601 S.W.3d 904, 912 (Tex. App.—Houston [14th Dist.] 2019, no pet.). We overrule Bertoldo’s fifth issue.

VIII. ADMISSIBILITY OF BLOOD TEST RESULT

*12 In his sixth issue, Bertoldo argues that the admission of the unconsented serum screening revealing a BAC of 0.117 violated his constitutional rights and guarantees. See U.S. Const. Amend. IV; Tex. Const. art. I, § 9; but see State v. One (1) 2004 Lincoln Navigator, VIN # 5LMFU27RX4LJ28242, 494 S.W.3d 690, 694– 95 (Tex. 2016) (“Both the Fourth Amendment to the United States Constitution and Article I, section 9 of the Texas Constitution prohibit unreasonable searches and seizures and require the exclusion of evidence obtained in violation of that prohibition in criminal trials.” (quoting State v. $ 217,590.00 in U.S. Currency, 18 S.W.3d 631, 636 (Tex. 2000) (Abbott, J., concurring) (emphasis in original))).

Bertoldo argues that:

[t]he admission of [Rigoverto’s] unconsented serum screening test was a violation of his constitutional protections guaranteed under the Fourth Amendment, and, by extension, a violation of his rights to due process under the Fifth Amendment (taking without notice of his rights to benefits) and equal protection under the Fourteenth Amendment (held to a different standard than other state and Texas PENAL CODE cases).

(emphasis in original). Bertoldo also argues that the trial court erred in admitting the test result because Rigoverto’s medical records are statutorily protected under the HIPAA.

Bertoldo, however, introduced Rigoverto’s medical records into evidence during Dr. Posey’s testimony, including the result of the test performed at 10:16 a.m. revealing Rigoverto’s BAC of 0.117. Accordingly, we conclude that Bertoldo waived his complaints to the admissibility of the results of Rigoverto’s blood test performed at 10:16 a.m. See Sw. Elec. Power Co. v. Burlington Northern R.R. Co., 966 S.W.2d 467, 473 (Tex. 1998) (“A party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when he, himself, introduced the same evidence or evidence of a similar character.”). We overrule Bertoldo’s sixth issue.

IX. CONCLUSION

We affirm the trial court’s judgment.

Footnotes

1

We will refer to Rigoverto and Bertoldo by their first names to avoid confusion.

2

Bertoldo’s petition is not included in the clerk’s record on appeal. See Tex. Labor Code Ann. § 410.302(b) (“A trial under this subchapter is limited to issues decided by the appeals panel and on which judicial review is sought. The pleadings must specifically set forth the determinations of the appeals panel by which the party is aggrieved.”). Zurich does not argue or dispute that Bertoldo sought judicial review of a determination of Rigoverto’s employer at the time of his injury and whether Rigoverto’s employer was covered by a workers’ compensation insurance policy.

3

The hospital also performed another blood test at 12:30 p.m., which showed Rigoverto’s blood alcohol concentration to be 0.066. Rigoverto’s motion only sought exclusion of the results of the first blood test.

4

“Retrograde extrapolation is the computation back in time of the blood-alcohol level ....” Mata v. State, 46 S.W.3d 902, 908–09 (Tex. Crim. App. 2001).

5

“The workers’ compensation act was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment.... The act relieves employees of the burden of proving their employer’s negligence, and instead provides timely compensation for injuries sustained on-the-job.... In exchange for this prompt recovery, the act prohibits an employee from seeking common-law remedies from his employer, as well as his employer’s agents, servants, and employees, for personal injuries sustained in the course and scope of his employment.” Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 142 (Tex. 2003) (quoting Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 206–07 (Tex. 2000)).

6

To the extent Bertoldo argues under this issue that the lab result showing Rigoberto’s BAC of 0.117 was inadmissible, we address this argument in Bertoldo’s sixth issue below where he specifically raises this argument.

7

To the extent Bertoldo’s argument raises evidentiary challenges to the admissibility of the blood test evidence, we reject that argument for the reasons discussed below in part VIII, where we address Bertoldo’s sixth issue specifically challenging the admissibility of the lab results.

8

Specifically, the jury charge asked the jury “Did Rigoverto Balderas’ injury occur while he was not in a state of intoxication?” (emphasis in original). The jury answered “No.”

Court of Appeals of Texas, Houston (14th Dist.).

LAURA JUAREZ, Appellant

v.

TEXAS LEGISLATIVE COUNCIL AND JEFF ARCHER, KIMBERLY SHIELDS, SABINA MILLS, AND ELENA POWELL IN THEIR OFFICIAL CAPACITIES, Appellees

NO. 14-20-00331-CV

|

Opinion filed March 17, 2022

On Appeal from the 261st District Court

Travis County, Texas

Trial Court Cause No. D-1-GN-19-000515

Panel consists of Chief Justice Christopher and Justices Hassan and Poissant.

MEMORANDUM OPINION

Tracy Christopher Chief Justice

*1 Affirmed and Memorandum Opinion filed March 17, 2022.

Following her termination from the Texas Legislative Council (TLC), plaintiff Laura Juarez sued TLC for age discrimination, whistleblower retaliation, workers’ compensation retaliation, and negligent hiring, retention, supervision, and training. The trial court granted TLC’s plea to the jurisdiction on the ground of sovereign immunity. We affirm.1

I. BACKGROUND

Juarez began working as a receptionist for TLC in July 2016. In October 2016, Juarez was physically assaulted by coworker Claudia Newman, who worked with Juarez in the reception area. In response, TLC moved Newman’s primary workspace to the human-resources office, but when Juarez was away from her desk, Newman covered the reception area.2

A. The Workers’ Compensation Claim

In March 2018, Juarez began to complain of an allergic reaction to something in her workplace, and she produced a note from her doctor stating that she was allergic to formaldehyde. TLC had the carpets in the reception area cleaned and spent over $4,500 on an air-quality study, which revealed no hazardous levels of any chemical substances, including formaldehyde. No products containing formaldehyde were identified in the workplace.

In May 2018, Juarez filed a workers’ compensation claim for the allergic reactions, but her symptoms improved after two weeks’ sick leave and she voluntarily withdrew the claim.

B. Newman’s Suspected Use of an Industrial Disinfectant

On July 25, 2018, Juarez looked in Newman’s cabinet in the reception area and discovered a can of DISOLV, an industrial disinfectant. Juarez asked Newman about it, and Newman responded that she had gotten the disinfectant from staff coordinator Elena Powell in the human-resources department and had been using it in the reception area. Juarez asked Newman not to spray it in the reception area anymore, and Newman said she would return it to the human-resources office. Meanwhile, Juarez informed human-resources manager Sabina Mills about discovering the disinfectant in Newman’s cabinet and about Juarez’s conversation with Newman.

The next day, Powell returned the can of DISOLV to the reception area. Powell told Juarez not to snoop in other people’s cabinets and said that the disinfectant would stay in the reception area. Juarez told Powell she did not want the product used in the reception area because it caused her allergic reactions.

*2 Later that day, Juarez asked Newman to cover the phones while Juarez went to the restroom. When Juarez returned, there was a strong chemical smell in the reception area and Juarez began experiencing skin irritation and shortness of breath. Juarez called Mills and told her about the incident.

C. The Written Warning and Juarez’s Complaints to Law Enforcement

On August 7, 2018, Powell and TLC’s assistant executive director Kimberly Shields met with Juarez and advised her in writing that she was failing to meet the behavioral standards of (1) establishing and maintaining effective working relationships, (2) accepting any verbal or written instructions from Juarez’s supervisors or managers pertaining to her job, (3) working within the agency’s chain of command, and (4) interacting courteously and professionally with coworkers. Juarez was informed that her continued employment was dependent on her meeting these behavioral expectations, and that her employment could be terminated if she failed to do so.

During this same period, Juarez found that her office chair was damp and she believed that Newman had put some kind of liquid on the chair. Juarez was dissatisfied with TLC’s response, so after work on Friday, August 10, 2018, Juarez filed with the Austin Police Department and the Texas Department of Public Safety complaints of criminal assault against Powell and Newman for “the spraying of a dangerous chemical to injure a person.”

TLC requested and reviewed surveillance video of the reception area from the Texas Facilities Commission and discovered that Newman had sprinkled something on Juarez’s chair. On Monday, August 13, 2018, TLC terminated Newman’s employment. Shields and Mills informed Juarez of Newman’s termination and assigned Juarez a private parking space that was monitored by video “in the event that something happened to [Juarez’s] vehicle.”

D. Part-time Receptionists Hired in October 2018

After Newman was fired, TLC did not fill the position with another full-time receptionist but instead hired three part-time receptionists around October 1, 2018. Two were hired as replacements for the full-time position, and the third was hired to help with the increased volume of work during the legislative session.

On October 31, 2018, Juarez heard Powell talking to one of the new receptionists. According to Juarez, Powell “said something to the effect, ‘we will be out with the old and in with the new soon.’ ” Powell testified that she was referring to the telephones. Powell stated that the phone system had been replaced three months earlier, and Juarez was trying to teach the new receptionist an outdated process that was no longer used with the new telephone system. Powell stated that she explained this to the new receptionist in Juarez’s presence.

E. Juarez’s Termination

On November 2, 2018, Mills terminated Juarez’s employment. According to the written termination memorandum Mills gave Juarez, Juarez was terminated because she “ha[d] not consistently met any of the behavior standards described” in the written warning of August 7, 2018.

After Juarez’s termination, TLC reclassified her position and distributed her duties to two new part-time receptionists. Shields attested that both individuals hired to fill those positions were over sixty years old.

F. The Lawsuit

*3 Shortly after her termination, Juarez sued TLC, and in their official capacities, Shields, Mills, Powell, and TLC’s executive director Jeff Archer.3 Because the interests of the TLC defendants are identical, we will refer only to TLC except when referring to the actions of a particular named individual.

TLC filed a plea to the jurisdiction asserting sovereign immunity from Juarez’s claims. The trial court granted the plea and dismissed Juarez’s claims with prejudice. Juarez appeals that final judgment.

II. STANDARD OF REVIEW

Unless waived by the legislature, the State of Texas and its agencies have sovereign immunity from suit and from liability. PHI, Inc. v. Tex. Juvenile Justice Dep’t, 593 S.W.3d 296, 301 (Tex. 2019). Because the assertion of sovereign immunity implicates the trial court’s jurisdiction, it is properly asserted in a plea to the jurisdiction. Id.

Whether a court has subject-matter jurisdiction is a question of law that is properly asserted in a plea to the jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 224 (Tex. 2004). We review the trial court’s ruling on a plea to the jurisdiction de novo. Chambers-Liberty Ctys. Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex. 2019). The plaintiff bears the initial burden to allege facts affirmatively demonstrating the court’s jurisdiction to hear the cause. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). Parties may submit evidence supporting or opposing the plea, which we review applying the same standard applicable to a traditional motion for summary judgment. Chambers-Liberty Ctys. Navigation Dist., 575 S.W.3d at 345 (citing Sampson v. Univ. of Tex. at Austin, 500 S.W.3d 380, 384 (Tex. 2016)). We take as true all evidence favorable to the plaintiff, indulging every reasonable inference and resolving any doubts in the plaintiff’s favor. Sampson, 500 S.W.3d at 384. If the relevant evidence fails to raise a fact question on the jurisdictional issue, the court rules on the plea to the jurisdiction as a matter of law. Miranda, 133 S.W.3d at 228. If the evidence instead creates a fact question regarding the jurisdictional issue, then the trial court must deny the plea and allow the factfinder to resolve the issue. Id. at 227–28.

III. AGE DISCRIMINATION

The Texas Commission on Human Rights Act (TCHRA) makes it unlawful to discriminate against a person aged forty or older based on the person’s age. See TEX. LAB. CODE ANN. §§ 21.051, 21.101. The TCHRA waives sovereign immunity from suit for statutory violations. Alamo Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 763 (Tex. 2018); Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635–37 (Tex. 2012). To establish a waiver of immunity, a plaintiff first must plead the basic facts that make up a prima facie case of her statutory cause of action. See Garcia, 372 S.W.3d at 637. The plaintiff need not produce evidence supporting her claim unless the defendants first present evidence rebutting or negating one of those basic facts. Clark, 544 S.W.3d at 783; Garcia, 372 S.W.3d at 637–38.

To prove unlawful discrimination, a plaintiff may rely on either direct or circumstantial evidence. Tex. Tech Univ. Health Scis. Ctr.-El Paso v. Flores, 612 S.W.3d 299, 305 (Tex. 2020) (citing Clark, 544 S.W.3d at 782). If the plaintiff has direct evidence of discriminatory animus, the burden shifts to the employer to show that legitimate reasons would have led to the same adverse employment action regardless of any discriminatory motives. Quantum Chem. Corp. v. Toennies, 47 S.W.3d 473, 476 (Tex. 2001).

*4 Alternatively, a plaintiff may prove a violation with circumstantial evidence. If the plaintiff is relying solely on circumstantial evidence, then the plaintiff’s ultimate goal is to show that the employer’s stated reason for the adverse action was a pretext for discrimination. Id. In pretext cases, courts follow the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, the plaintiff first creates a presumption of unlawful discrimination by establishing a prima facie case. Flores, 612 S.W.3d at 305. The defendant then must rebut that presumption by negating an element of the prima facie case or by establishing a legitimate, nondiscriminatory reason for the employment action. See id.; Clark, 544 S.W.3d at 783. If the defendant does so, then the plaintiff must overcome the rebuttal evidence by establishing that the defendant’s stated reason is a mere pretext. Clark, 544 S.W.3d at 783.

In an age-discrimination case, the plaintiff establishes a prima facie case with evidence that she (a) was a member of the protected class (that is, 40 years of age or older), (b) was qualified for the position at issue, (c) suffered a final, adverse employment action, and (d) was either replaced by someone significantly younger or was otherwise treated less favorably than others who were similarly situated but outside the protected class. Flores, 612 S.W.3d at 305.

Juarez alleged that TLC committed age discrimination by terminating her employment and replacing her with someone younger. In its plea to the jurisdiction, TLC negated the replacement element of Juarez’s prima facie case with evidence that after it terminated Juarez, TLC reclassified her position to redistribute her duties among two part-time receptionists who are older than Juarez. Although Juarez asserts that she was replaced by the younger receptionists hired in October 2018—before Juarez was terminated—no evidence supports this. Juarez offered no evidence controverting TLC’s evidence that, of the three younger part-time receptionists hired before Juarez’s termination, two replaced the full-time position left vacant by Newman’s termination, and the third was hired for the increased volume of sessional work, whereas the two part-time receptionists hired after Juarez’s termination were older than her.

Juarez characterizes the supporting evidence as conclusory, but we disagree. A conclusory statement is one that “expresses a factual inference without providing underlying facts to support that conclusion.” Nationwide Coin & Bullion Reserve, Inc. v. Thomas, 625 S.W.3d 498, 504 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (quoting Leonard v. Knight, 551 S.W.3d 905, 911 (Tex. App.—Houston [14th Dist.] 2018, no pet.)). Shields provided the underlying facts; she attested that both part-time receptionists hired to fulfill Juarez’s duties were over sixty years old, whereas Juarez was in her early fifties. Juarez also asserts that Shields’s affidavit contains no facts showing Juarez’s personal knowledge of any of these facts; however, Juarez failed to preserve this complaint inasmuch as she did not obtain a ruling on her objection in the trial court. See Washington DC Party Shuttle, LLC v. IGuide Tours, 406 S.W.3d 723, 736 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).

If a terminated employee was not replaced by someone younger, an employee could still prove age discrimination, but only with “direct evidence of discriminatory animus.” Garcia, 372 S.W.3d at 642. Juarez pleaded that two days before she was terminated, she heard Powell speaking to one of the part-time receptionists hired after Newman’s termination, and Powell “said something to the effect, ‘we will be out with the old and in with the new soon.’ ” This, statement, however, does not constitute direct evidence of discriminatory animus. “Direct evidence of discrimination is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” Jespersen v. Sweetwater Ranch Apartments, 390 S.W.3d 644, 653 (Tex. App.—Dallas 2012, no pet.). For workplace comments to provide direct evidence of discrimination, the remarks must be (a) related to the protected class, (b) proximate in time to the adverse employment decision, (c) made by an individual with authority over the employment decision at issue, and (d) related to the employment decision at issue. Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 432–33 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). “If an inference is required for the evidence to be probative as to the employer’s discriminatory animus in making the [adverse] employment decision, the evidence is circumstantial, not direct.” Jespersen, 390 S.W.3d at 653–54. Because inferences are required before one can conclude that Powell’s statement refers to a person’s age and that it relates to Juarez’s termination, it is not direct evidence.

*5 We conclude that the trial court correctly held that TLC has sovereign immunity from Juarez’s age-discrimination claim.

IV. WHISTLEBLOWER RETALIATION

A state or local governmental agency may not take adverse personnel action against “a public employee who in good faith reports a violation of law by the employing governmental entity or another public employee to an appropriate law enforcement authority.” TEX. GOV’T CODE ANN. § 554.002. Thus, the claim’s elements, which are jurisdictional,4 are that (a) the plaintiff was a public employee; (b) the defendant is a state or local governmental agency; (c) the plaintiff acted in good faith in reporting a violation of law; (d) the violation was reported to an appropriate law-enforcement agency; and (e) “the plaintiff’s report was the but-for cause of the defendant’s suspending, firing, or otherwise discriminating against the plaintiff at the time the defendant took that action.” Guillaume v. City of Greenville, 247 S.W.3d 457, 461 (Tex. App.—Dallas 2008, no pet.).

To establish “but-for causation,” the employee must prove that, had the employee not reported the violation, the employer would not have taken the adverse action when it did. Office of Attorney Gen. v. Rodriguez, 605 S.W.3d 183, 192 (Tex. 2020); Tex. Dep’t of Human Servs. v. Hinds, 904 S.W.2d 629, 636 (Tex. 1995). If a public employer takes adverse personnel action against a reporting employee within ninety days after the employee’s report, courts apply a rebuttable presumption that the adverse personnel action was taken because of the report. TEX. GOV’T CODE ANN. § 554.004(a). It is an affirmative defense to a whistleblower-retaliation suit that the public employer would have taken the same adverse action against the employee “based solely on information, observation, or evidence that is not related to the fact that the employee made a [protected] report.” Id. § 554.004(b). Thus, an employer rebuts the presumption by producing evidence sufficient to support a finding that the report did not cause the adverse action. See Tex. Health & Human Servs. Comm’n v. Vestal, No. 03-19-00509-CV, 2020 WL 7252320, at *3 (Tex. App.—Austin Dec. 10, 2020, pet. denied) (mem. op.). Once rebutted, the presumption vanishes, and the case proceeds as though it had never existed. Id.

On August 10, 2018, Juarez reported to the Austin Police Department and the Texas Department of Public Safety that Newman and Powell allegedly violated the law. TLC terminated Juarez’s employment eighty-four days later. This chronology triggers the presumption that TLC fired Juarez because of her reports to law enforcement.

But, TLC rebutted the presumption. It is uncontroverted that TLC gave Juarez a written warning on August 7, 2018—three days before Juarez filed complaints with law-enforcement agencies—that Juarez’s continued failure to meet certain expectations would result in “further disciplinary action up to and including termination of employment.” And “[a]n employer’s ‘proceeding along lines previously contemplated, though not yet definitively determined, is no evidence whatever of causality.’ ” Apache Corp. v. Davis, 627 S.W.3d 324, 336 (Tex. 2021), (quoting Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)).

*6 Once TLC rebutted the presumption, the burden shifted to Juarez to produce evidence that, but for Juarez’s reports to law-enforcement agencies, her termination would not have occurred when it did. See id. at 335. Juarez did not attempt to meet her burden to show that, but for her complaints of criminal assault to the Austin Police Department and the Department of Public Safety, she would not have been terminated when she was. Instead, she asserted that she had been “making many complaints concerning her work environment and her illness at work beginning in March 14, 2018” and that TLC retaliated by giving her the written warning of August 7, 2018. Such complaints will not sustain her whistleblower-retaliation claim. Among other things, TLC is not an appropriate law-enforcement agency,5 and its “power to discipline its own or investigate internally does not support a good-faith belief that it is an appropriate law-enforcement authority.” McMillen v. Tex. Health & Human Services Comm’n, 485 S.W.3d 427, 429 (Tex. 2016) (per curiam). Juarez has not argued otherwise.

Because there is no evidence of the element of causation, we conclude that the trial court properly granted TLC’s plea to the jurisdiction as to this claim. We overrule this issue.

V. WORKERS’ COMPENSATION RETALIATION

Juarez also alleged that TLC terminated her in retaliation for filing a workers’ compensation claim. It is unlawful to discriminate against an employee who has filed such a claim in good faith. TEX. LAB. CODE ANN. § 451.001(1). Sovereign immunity is waived for claims that actually fall within this provision. See Kerrville State Hosp. v. Fernandez, 28 S.W.3d 1, 6 (Tex. 2000).

As with Juarez’s other retaliation claim, there is insufficient evidence of but-for causation. In evaluating such evidence in retaliation cases, we examine all of the circumstances, including temporal proximity between the protected activity and the adverse action, knowledge of the protected activity, expression of a negative attitude toward the employee’s protected activity, failure to adhere to relevant established company policies, discriminatory treatment in comparison to similarly situated employees, and evidence the employer’s stated reason is false. Clark, 544 S.W.3d 755 at 790.

Temporal proximity is lacking, for Juarez was terminated five or six months after she instituted and withdrew the claim. Mills, who authored the termination memorandum, knew of the claim, which would seem to weigh in Juarez’s favor. On the other hand, Mills attested that she attempted to help Juarez with the workers’ compensation paperwork, but Juarez eventually wrote “DECLINE” on the paper. Far from disputing this, Juarez admits that she voluntarily withdrew the claim. Nevertheless, TLC had the carpets in Juarez’s work area cleaned and spent over $4,500 on an air-quality study. As for the remaining considerations, there is no evidence that anyone involved in TLC’s decision to terminate Juarez’s employment expressed a negative attitude about Juarez’s filing of the claim, failed to adhere to relevant established company policies, or treated Juarez unfavorably compared with similarly situated employees. Finally, there is no evidence that TLC’s stated reasons for terminating Juarez’s employment are false or that TLC would not have terminated Juarez when it did absent the workers’ compensation claim.

Given the absence of causation evidence, we conclude that the trial court properly granted TLC’s plea to the jurisdiction as to this claim. We overrule this issue.

VI. NEGLIGENT HIRING, RETENTION, SUPERVISION, AND TRAINING

*7 Finally, Juarez alleged that she sustained personal injuries through TLC’s negligent hiring, negligent retention, negligent supervision, and negligent training of Claudia Newman and other unnamed individuals. TLC correctly asserted in its jurisdictional plea that the Texas Tort Claims Act does not waive immunity for such claims. See, e.g., Tex. Dep’t of Pub. Safety v. Petta, 44 S.W.3d 575, 580–01 (Tex. 2001) (claims for negligent training, negligent supervision, and failure to discipline are claims for the misuse or non-use of information to which sovereign immunity applies); City of Houston v. Manning, No. 14-20-00051-CV, 2021 WL 1257295, at *9 (Tex. App.—Houston [14th Dist.] Apr. 6, 2021, pet. denied) (mem. op.) (same applies to negligent retention).

Juarez responded that the Texas Tort Claims Act waives immunity for personal injury “so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2). According to Juarez, she sustained personal injury from the unsafe use of DISOLV in the reception area by a TLC employee. But as TLC accurately pointed out, this alleged conduct was the subject of Juarez’s complaints of criminal assault, and the Texas Tort Claims Act specifically excludes waiver of immunity for a claim “arising out of assault ... or any other intentional tort.” See TEX. CIV. PRAC. & REM. CODE ANN. § 101.057; Petta, 44 S.W.3d at 580.

Because sovereign immunity has not been waived as to these claims, the trial court properly dismissed them. We overrule this issue.

VII. CONCLUSION

We conclude that sovereign immunity has not been waived regarding Juarez’s claim against TLC for age discrimination, whistleblower retaliation, workers’ compensation retaliation, and negligent hiring, retention, supervision, and training. We accordingly affirm the trial court’s judgment.

Footnotes

1

The case was transferred to this Court from the Third Court of Appeals in Austin pursuant to a docket-equalization order issued by the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001. Because this is a transfer case, we apply the precedent of the Third Court of Appeals to the extent it differs from our own. See TEX. R. APP. P. 41.3.

2

We summarize the facts in accordance with the standard of review, that is, construing the evidence in the plaintiff’s favor. See section II, infra. For example, TLC claims to have given Juarez a written performance appraisal in 2017, but Juarez attested that she first saw the appraisal after this suit was filed in 2019. We therefore do not consider it and need not describe its contents. We likewise do not discuss factual assertions Juarez raised in her response to the jurisdictional plea but for which there is no evidence.

3

Juarez also sued Newman “in her official capacity,” though TLC had already terminated Newman’s employment. Newman does not appear to have been served and is not a part of this appeal.

4

See State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009).

5

See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 398 S.W.3d 680, 686 (Tex. 2013) (“[F]or an entity to constitute an appropriate law-enforcement authority under the Act, it must have authority to enforce, investigate, or prosecute violations of law against third parties outside of the entity itself, or it must have authority to promulgate regulations governing the conduct of such third parties.”).

Court of Appeals of Texas, Houston (14th Dist.).

Juan REYES, Appellant

v.

The LUBRIZOL CORPORATION, Appellee

NO. 14-20-00177-CV

|

Opinion filed January 25, 2022

On Appeal from the 234th District Court, Harris County, Texas, Trial Court Cause No. 2019-10029

Attorneys & Firms

Juan Noe Garza Jr., Timothy A. Hootman, for Appellant.

Wade R. Quinn, Danielle Hollis, for Appellee.

Panel consists of Justices Jewell, Spain, and Wilson.

MEMORANDUM OPINION

Randy Wilson, Justice

*1 This is an appeal from a final order1 granting appellee’s, The Lubrizol Corporation’s, motion for summary judgment based on the “Exclusive Remedy” provision of the Texas Workers’ Compensation Act, (the “Act” or “TWCA”).2 Appellant Juan Reyes argues that the trial court erred because, by the terms of his employer’s agreement with Lubrizol, Lubrizol is not a “general contractor” under the Act and therefore should not reap the benefits of the statutory bar to liability provided under section 406.123 of the Texas Labor Code. In the alternative, Reyes argues that the terms of his employer’s agreement with Lubrizol are ambiguous, and likewise render a genuine issue of material fact as to Lubrizol’s status as a “general contractor” under the Act. Based on our review of the record, we affirm the trial court’s summary judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

According to Reyes’s live petition, on February 27, 2017, Reyes was employed by S&B Engineers and Constructors, LTD (S&B) as a welder at a Deer Park facility owned and operated by Lubrizol. Reyes alleges that he was injured as a result of two Lubrizol employees negligently crashing a railcar into an automobile that Reyes was driving. Reyes asserts that Lubrizol was vicariously liable for the acts of the railcar operators under the theory of respondeat superior and independently liable for its hiring of the railcar operators.

Lubrizol moved for summary judgment on its exclusive-remedy affirmative defense under the Act. In its motion, Lubrizol asserted that S&B was contracted by Lubrizol to perform various services at its facility and that Lubrizol agreed to provide workers’ compensation insurance as a “general contractor” under Texas law. Lubrizol attached to its motion a Service Agreement between Lubrizol and S&B, which though substantially redacted in parts, sets out an arrangement between the two parties for the provision of Workers’ Compensation Insurance for employees. In a section entitled “Insurance”, the parties agreed that:

(1) S&B shall “purchase and maintain” insurance, including Workers’ Compensation Insurance in compliance with Texas law for the benefit of each “[S&B] employee who is assigned to perform Services at the Premises;”

(2) S&B shall furnish a certificate of insurance showing that it is in compliance with the Act;

(3) S&B shall invoice Lubrizol, and Lubrizol shall pay S&B “the cost of the workers’ compensation insurance purchased and maintained by S&B;” and

*2 (4) Lubrizol shall be considered the employer of S&B’s employees “for the sole purpose of the workers’ compensation laws.”

Lubrizol’s summary judgment proof also included two affidavits. Deborah Peres, a Lubrizol representative, testified that Lubrizol reimbursed S&B weekly for the cost of the workers’ compensation coverage. Kenneth Miller, an S&B representative, testified to the authenticity of records which generally confirm facts alleged in Reyes’s petition—that at the time of the alleged injury Reyes was an S&B employee working as a welder at a Lubrizol facility.

Reyes filed a response to Lubrizol’s summary-judgment motion arguing that the language of the Service Agreement does not characterize Lubrizol as a “general contractor”, and that it only characterized S&B as a general contractor. Reyes acknowledged that a premise owner may qualify as a “general contractor” where it undertakes to procure the performance of work or a service, either separately or through the use of subcontractors, but argued that by the terms of the Service Agreement, that did not occur. Reyes contended:

There is nothing about the language of the agreement that indicates that Defendant will do anything whatsoever regarding the subcontractors or the contractors activities; this of course indicates that Defendant was not intended by way of the language of the Services Agreement to act as the general contractor but rather only S&B was to act as the general contractor.

Reyes also argued, in the alternative, that the Service Agreement is ambiguous and raises a fact question on Lubrizol’s status as a “general contractor”. Reyes did not contest or supplement the factual record with additional evidence, but rather challenges the interpretation of the agreement between S&B and Lubrizol.

On December 10, 2019, the trial court granted Lubrizol’s summary-judgment motion. On January 9, 2020, Reyes moved for new trial, spurring a volley of filings (i.e., response, reply, sur-reply). During this second, post-judgment round, the parties shifted their focus to the question whether the Service Agreement between S&B and Lubrizol provided for workers’ compensation coverage. On February 12, 2020, in an order titled, “Order Granting Motion for Summary Judgment Regarding Application of Texas Workers’ Compensation Exclusive Remedy Provision” the court, without any further reference to the summary-judgment motion, unequivocally denied “Plaintiff’s Motion for New Trial”. Reyes then filed his notice of appeal.

II. ISSUES AND ANALYSIS

The question Reyes presents by this appeal is in essence whether Lubrizol’s summary judgment proof showed that it executed the necessary paperwork to establish that it was entitled to the exclusive-remedy defense as a statutory “general contractor”. Because the exclusive-remedy defense is an affirmative defense, Lubrizol had the burden to establish conclusively its entitlement to judgment by the relevant statutory provisions. See Lazo v. Exxon Mobil Corp., 14-06-00644-CV, 2009 WL 1311801, at *1 (Tex. App.—Houston [14th Dist.] May 7, 2009, no pet.). (providing that a defendant moving for summary judgment on an affirmative defense must prove conclusively the defense’s elements).

A. Standard of Review

*3 In a traditional motion for summary judgment, if the movant’s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000). In our de novo review of a trial court’s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). When, as in this case, the order granting the notion for summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). A defendant moving for summary judgment on an affirmative defense must prove conclusively the elements of the defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).

B. Exclusive-Remedy Defense for Subscribing Employers and Others

The TWCA was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment. Hughes Wood Prods. v. Wagner, 18 S.W.3d 202, 206 (Tex. 2000). An employer has the option of providing workers’ compensation insurance for employees and becoming a subscriber under the TWCA, or not providing workers’ compensation insurance and remaining a nonsubscriber. Tex. Lab. Code Ann. § 406.002(a); Port Elevator–Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012).

If the employer is a subscriber, the TWCA allows employees to recover workers’ compensation benefits for injuries in the course and scope of employment without proving fault by the employer and without regard to their negligence or that of their coworkers. Id. In exchange, the TWCA prohibits an employee from seeking common-law remedies from his employer for personal injuries sustained in the course and scope of his employment. Hughes Wood Prods., 18 S.W.3d at 207. “Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage.” Tex. Lab. Code Ann. § 408.001(a).

In the typical case, to show that a common-law claim is barred by the TWCA, the employer must show that the injured worker was its employee at the time of the work-related injury, and covered by workers’ compensation insurance. Phillips v. Am. Elastomer Prods., L.L.C., 316 S.W.3d 181, 187 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). This is not the typical case.

Today’s case involves the nuanced but not uncommon situation where a non-employer secures by written agreement workers’ compensation employer’s status over the employees of others. See Tex. Lab. Code Ann. 406.123(e). These circumstances direct our consideration to the provisions under Subchapter F of Chapter 406, “Coverage for Certain Independent Contractors.” The operative provisions are found in section 406.123 of the Labor Code, which provides:

(a) A general contractor and a subcontractor may enter into a written agreement under which the general contractor provides workers’ compensation insurance coverage to the subcontractor and the employees of the subcontractor.

....

(e) An agreement under this section makes the general contractor the employer of the subcontractor and the subcontractor’s employees only for purposes of the workers’ compensation laws of this state.

Tex. Lab. Code Ann. § 406.123(a), (e).

Thus, by the terms of the TWCA, the exclusive-remedy defense provided to subscribing employers is also available to a “general contractor” if, pursuant to a written agreement, it “provides” workers’ compensation insurance coverage to the “subcontractor” and its employees. HCBeck, Ltd., v. Rice, 284 S.W.3d 349, 350 (2009) (citing Tex. Lab. Code Ann. §§ 406.123(a), 408.001(a)). If the general contractor “provides” workers’ compensation insurance, it becomes a statutory employer of the subcontractor’s employees. Id. at 352 (citing Tex. Lab. Code Ann. § 406.123(e)).

*4 Parties executing such written agreements with the aim of sharing coverage must observe the defined terms under the subchapter. Under the subchapter, “General contractor” means

a person who undertakes to procure the performance of work or a service, either separately or through the use of subcontractors. The term includes a “principal contractor,” “original contractor,” “prime contractor,” or other analogous term. The term does not include a motor carrier that provides a transportation service through the use of an owner operator.

Tex. Lab. Code Ann. § 406.121.

In Entergy Gulf States, Inc. v. Summers, the Court considered the question of whether, as here, a premises owner can be considered a general contractor and thus become a statutory employer of an injured worker employed by a contractor of the premises owner. The Court concluded that a premises owner may fall within this “general contractor” definition, as one who “undertakes to procure the performance of work.” 282 S.W.3d 433, 444 (Tex. 2009); See also Lazo v. Exxon Mobil Corp., 14-06-00644-CV, 2009 WL 1311801, at *3 (Tex. App.—Houston [14th Dist.] May 7, 2009, no pet.). The corresponding term “subcontractor” means “a person who contracts with a general contractor to perform all or part of the work or services that the general contractor has undertaken to perform.” Tex. Lab. Code Ann. § 406.121(5).3 The crux of Reyes’s complaints revolves around these terms.

C. Did the court err in its implicit conclusion that Lubrizol conclusively established each element of its exclusive-remedy defense?

To prevail on summary judgment and establish its entitlement to the exclusive remedy under subchapter F, Lubrizol had to prove conclusively that it fell within the statutory definition of a “general contractor”, that S&B fell within the statutory definition of a “subcontractor”, and that Lubrizol “provided” workers’ compensation insurance coverage to S&B and its employees pursuant to a written agreement. See HCBeck, Ltd., 284 S.W.3d at 352. While addressing this issue, we also address Reyes’s alternative argument that ambiguity in the written agreements creates a “fact question as to whether the intent was either for Lubrizol to act as the general contractor or for S&B to act as the general contractor.

Most of the facts relevant to our consideration of Lubrizol’s affirmative defense are undisputed. Reyes does not dispute the evidence that: (1) Reyes was employed by S&B and (2) under the Services Agreement S&B will purchase workers’ compensation insurance for its employees and Lubrizol will reimburse S&B for doing so, or (3) S&B purchased insurance and was reimbursed by Lubrizol. Reyes instead argues that the Service Agreement “does not conclusively establish that Lubrizol was the ‘general contractor’ as that term is defined by section 406.123 of the TWCA.” In connection with this argument, Reyes also argues that the agreements do not reflect an intent that S&B is a “subcontractor.”

*5 As a starting point, we note that throughout the Service Agreement, including section 15 of the Service Agreement entitled “Insurance,” the parties refer to S&B by the defined name “Contractor” and refer to The Lubrizol Corporation as “LZA” or as “Lubrizol”. The Service Agreement does not specifically identify any party as a “general contractor.” In section 2, entitled “Services” the Service Agreement states that “Lubrizol retains Contractor as an independent contractor to perform the Services.” The agreement also refers to other “independent contractors” that Lubrizol has retained on the site, (e.g., “Lubrizol will similarly request its other independent contractors not to interfere with Contractor’s operations”).

Throughout the agreement, the term “subcontractor” is not used to describe “S&B”, but rather potential subcontrators of S&B for whom S&B would be responsible, e.g., “Subject to the limitations stated herein, all damages, losses, costs and expenses arising out of incurred in connection with, related to or resulting from Contractor’s or Contractor’s subcontractors’ breach or default of any provision in this Agreement will become indebtedness of Contractor to Lubrizol payable upon demand.”)

We consider the contractual provisions together in order to ascertain the true intentions of the parties as expressed in the writing itself. Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc., 473 S.W.3d 296, 305 (Tex. 2015) (holding that courts must “consider the entire writing, harmonizing and giving effect to all the contract provisions so that none will be rendered meaningless”). The Service Agreement is not ambiguous. It plainly establishes that Lubrizol undertook to procure the performance of work or a service from S&B and contemplates that Lubrizol has procured and may further procure the performance of work from other contractors. The arrangement described in the Service Agreement plainly satisfies the statutory definitions, such that Lubrizol is one “who undertakes to procure the performance of work or a service, either separately or through the use of subcontractors” (i.e. a statutory “general contractor”) and that S&B is a person contracting with a Lubrizol to perform all or part of the work or services that the general contractor has undertaken to perform (i.e., a statutory “subcontractor” to Lubrizol). Contrary to Reyes’s arguments, the parties’ own use of the words “contractor”, “independent contractor”, and “subcontractor” does not necessarily define their status under the TWCA. Rather, to reach our conclusion, we have first looked to the statutory terms and their respective definitions, then to the summary-judgment evidence, including the text of the contract, to then determine if the relationships and contractual goals of the agreement fall within terms as defined.

Reyes only generally addresses the section 406.123(a) requirement that Lubrizol show that it has provided workers’ compensation in its written agreement with S&B by reference to the first issue, stating that “Lubrizol is not a general contractor and therefore cannot qualify as “the employer” under the TWCA so as to have “provided” workers’ compensation insurance to a subcontractor and its employees pursuant to a written agreement.” In support of this contention, but without further explanation Reyes cites the Corpus Christi case Halferty v. Flextronics Am., LLC. 545 S.W.3d 708, 713 (Tex. App.—Corpus Christi-Edinburg 2018, pet. denied).

Halferty is not precisely on point. In Halferty, the Corpus Christi-Edinburg court considered whether a premise owner, Flextronics, had provided workers’ compensation to Halferty, an employee of a subcontractor on site. Though Flextronics had entered an agreement with another entity (Titan) that required Titan to “provide, pay for and maintain in full force and effect” workers’ compensation insurance” where the work was being done, Flextronic itself had not done anything other than pass the obligation to obtain workers’ compensation insurance to Titan. Flextronic did not agree to reimburse Titan for the coverage. The Court concluded that Flextronic did not provide coverage simply by requiring its subcontractors to secure their own coverage. Id. at 714.

*6 In surveying the relevant case law, we find our decision in Brooks v. Goodyear Tire & Rubber Co. more germane to the current analysis. 14-12-01048-CV, 2013 WL 3477288 (Tex. App.—Houston [14th Dist.] July 9, 2013, no pet.). In Brooks, we affirmed the trial court’s summary judgment dismissal of Goodyear based on its entitlement to the exclusive-remedy defense by operation of a “general contractor’s” written agreement pursuant to section 406.123. Id. at *4. Brooks, an employee of Qualitech Maintenance, Inc., filed suit against Goodyear when one of its employees ran over Brooks while operating a “4–wheeler all terrain ... on the premises of the Goodyear plant.” Id. at *1. Goodyear offered evidence of a “Services Agreement” between Goodyear and Qualitech that required that Goodyear provide reimbursement of workers’ compensation insurance to Qualitech for employees working on its site, and evidence that Goodyear made such payments. Id. We concluded that the facts of the case were analogous to the HCBeck, Ltd. decision. Id. at *4. Today, we are confronted with facts strikingly similar to those in Brooks. Like Goodyear’s summary-judgment proof in Brooks, Lubrizol’s summary-judgment evidence establishes that:

• Lubrizol had a written contract that provided for workers’ compensation insurance for S&B employees.

• Reyes was an S&B employee.

• S&B purchased workers’ compensation coverage for its employees, including S&B.

And by contrast to Halferty, but similar to Brooks, the summary-judgment evidence in this case conclusively establishes that the general contractor (Lubrizol) was contractually obligated to reimburse the subcontractor (S&B) for the workers’ compensation premiums and complied with that contractual obligation.

Because there is no genuine issue of material fact on any element of Lubrizol’s exclusive-remedy defense, the trial court did not err in granting Lubrizol’s motion for summary judgment.

III. CONCLUSION

Because we have overruled appellant’s issues and because we find no fundamental error from any aspect in the summary-judgment record, we affirm.

Footnotes

1

There is no magic language (a Mother Hubbard clause is used), but the order actually disposes of every pending claim and party, “all claims are hereby dismissed with prejudice.” See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). Therefore, under Lehmann, the judgment is final.

2

Tex. Lab. Code Ann. § 408.001(a). This provision is sometimes referred to as the “Exclusivity Defense” or “exclusive remedy defense”, we referred it to here as the “exclusive-remedy defense” and “exclusive-remedy affirmative defense”.

3

Another provision under the subtitle, section 406.122(a) deems all persons providing work or services for a general contractor to be employees of the general contractor except for independent contractors and their employees. Section 406.122(b), on the other hand, affirmatively excludes subcontractors and their employees as the general contractor’s employees if the subcontractor is acting as an independent contractor and “has entered into a written agreement with the general contractor that evidences a relationship in which the subcontractor assumes the responsibilities of an employer for the performance of work.” Thus, if section 406.122(b) applies, absent a written agreement under section 406.123, there is no employer-employee relationship between a general contractor and a subcontractor for workers’ compensation purposes and no reciprocity of protection.

Court of Appeals of Texas, Houston (14th Dist.).

HNMC, INC., Appellant

v.

FRANCIS S. CHAN, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF LENY REY CHAN, JONATHAN CHAN, AND JUSTIN CHAN, Appellees

NO. 14-18-00849-CV

|

December 30, 2021

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 2015-18367

En banc court consists of Chief Justice Christopher and Justices Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Justice Poissant authored an En Banc Majority Opinion, which was joined by Justices Bourliot, Zimmerer, Spain, and Hassan. Justice Hassan authored an En Banc Concurring Opinion, which was joined by Justices Bourliot and Spain. Chief Justice Christopher authored an En Banc Dissenting Opinion, which was joined by Justice Wilson. Justice Jewell authored an En Banc Dissenting Opinion, which was joined by Chief Justice Christopher and Justices Wise and Wilson.

OPINION ON MOTION FOR EN BANC RECONSIDERATION

Margaret “Meg” Poissant Justice

Motion for En Banc Reconsideration Granted, Affirmed, and En Banc Majority, Concurring, and Dissenting Opinions filed December 30, 2021.

This court issued its opinion and rendered judgment in this case on May 28, 2020. After the filing of a timely motion for en banc reconsideration, this Court has decided to grant the motion for en banc reconsideration.1 We withdraw our initial opinion and judgment of May 28, 2020, and substitute this opinion in its stead. We affirm.

Appellant Houston Northwest Medical Center (“HNMC”) appeals the trial court judgment in favor of appellees Francis S. Chan, Jonathan Chan, and Justin Chan—the husband and sons, respectively, of Leny Rey Chan, deceased.2 In five issues, HNMC argues that: (1) appellees’ claims are barred by workers’ compensation coverage; (2) it owed no duty to Chan in a public roadway; (3) appellees cannot recover under a general theory of negligence in this case; (4) the evidence is legally and factually insufficient to support the jury’s findings that HNMC breached a duty and that said breach caused Chan to suffer damages; and (5) the trial court erred by admitting “inadmissible evidence” or evidence “prohibited by the court” of pertaining to other pedestrian-vehicle incidents on the premises. We address each issue in turn as they were presented on appeal.

I. BACKGROUND

Chan worked as a nurse for more than thirty years at HNMC. After her shift ended on March 17, 2015, Chan left the building from the northeast door. Adjacent to the northeast side of the building is Cali Drive, a public roadway owned and maintained by Harris County. Chan’s car was parked in a surface parking lot across Cali Drive owned by HNMC. The quarter-mile long parking lot has two pedestrian gates at each end of the lot and a single operative vehicle entrance/exit at a mid-block location, almost directly across from the northeast hospital exit. Two marked pedestrian crosswalks were located at each end of the block on Cali Drive. The parties dispute the existence of a crosswalk at the mid-block location near the hospital’s northeast exit.3

As she had done in the past when leaving the hospital, Chan walked across Cali Drive at the mid-block location almost directly outside the northeast exit door instead of using one of the two crosswalks near each end of the block. According to appellees, it was common for persons leaving the hospital at the northeast exit to cross Cali Drive at mid-block and enter the parking lot by walking through the vehicle entrance/exit. There was no pedestrian gate in the immediate vicinity of the vehicle entrance/exit. The perimeter of the parking lot, other than the pedestrian gates and the sole vehicle entrance/exit, was fenced.

As Chan crossed Cali Drive toward the parking lot, James Budd drove his car out of the parking lot exit, turned left onto Cali Drive, and struck Chan. Chan died from her injuries.

Appellees sued Budd and Budd’s employer, Siemens Medical Solutions USA, Inc. (“Siemens”), asserting claims for wrongful death and negligence. Siemens designated Harris County and HNMC as responsible third parties. As to HNMC, Siemens alleged that the hospital failed to take adequate measures to prevent ingress and egress to and from Cali Drive, encouraged pedestrians to approach and cross Cali Drive at unsafe locations, and failed to advise pedestrians on HNMC’s property of known risks existing on and near the premises. These risks, according to Siemens, facilitated the unsafe pedestrian conditions existing when Chan crossed Cali Drive and proximately caused Chan’s death.

Appellees then added HNMC as a named defendant, alleging that HNMC was negligent in:

• failing to structure its premises surrounding Cali Drive, including its parking lots and access points, in a reasonably safe design to ensure the safe entry and exit of pedestrians to and from Cali Drive;

• failing to install barriers to bar crossing Cali Drive at unsafe locations;

• failing to post any signage near the subject crosswalk directing pedestrians to alternate locations to cross Cali Drive; and

• failing to warn of the alleged known dangerous conditions at the location.

HNMC moved for summary judgment on the ground that the Texas Workers’ Compensation Act (TWCA) barred appellees’ claim. The trial court denied this motion on February 13, 2017. On April 5, 2018, HNMC also moved for summary judgment on the ground that HNMC owed no legal duty to Chan as a pedestrian in a public street; however, the trial court did not rule on this motion.

Trial on the merits began on May 7, 2018. After appellees rested, appellants moved for directed verdict asserting (1) the TWCA barred Chan from relief and (2) HNMC did not owe a duty to Chan. The trial court denied the motion, and Siemens began its case-in-chief. After Siemens rested, HNMC again moved for directed verdict on the same grounds: the TWCA barred Chan from relief and HNMC did not owe a duty to Chan. The trial court denied the motion.

The jury found that the negligence of Budd, HNMC, Harris County, and Chan proximately caused Chan’s death. The jury apportioned negligence 40% to Budd, 20% to HNMC, 30% to Harris County and 10% to Chan. The jury awarded a total of $10 million to Chan’s husband and $2.5 million to each of Chan’s sons. On June 11, 2018, HNMC filed a motion for judgment notwithstanding the verdict, arguing that Chan’s claim was barred by the TWCA and that it did not owe a duty to Chan. The trial court signed a final judgment on July 2, 2018, incorporating the jury’s findings. After the court signed its judgment, appellees settled with Budd and Siemens and filed a release of judgment as to them, leaving only the judgment against HNMC. On August 1, 2018, HNMC filed a motion to set aside judgment and for new trial, which was overruled by operation of law. See Tex. R. Civ. P. 329b(c).

HNMC timely filed its appeal and seeks either the rendition of a take-nothing judgment or a new trial.

II. ANALYSIS

A. TEXAS WORKERS COMPENSATION ACT

With the exception of instances of intentional acts or gross negligence, recovery of workers’ compensation benefits is “the exclusive remedy” for an employee covered by workers’ compensation insurance or for a legal beneficiary against the employer, or an agent or employee of the employer, for the death or work-related injury sustained by the employee. See Tex. Lab. Code Ann. § 408.001(a).

In its first issue, HNMC argues that its subscription to statutory workers’ compensation coverage bars appellees’ claims. In the trial court, HNMC argued that the TWCA barred Chan from relief in two motions for summary judgment, a motion for directed verdict, a motion for judgment notwithstanding the verdict (JNOV), and a motion for new trial. However, while HNMC points us to the denial of its motion for JNOV in a single footnote, HNMC’s argument in its brief addresses only the trial court’s denial of its summary judgment motion on the basis that the TWCA barred Chan from relief. HNMC’s conclusion states “Summary judgment should have been granted to [HNMC] on February 13, 2017. The motion was denied.”

Generally, the denial of summary judgment cannot be reviewed on appeal. Cincinnati Life Ins. v. Cates, 927 S.W.3d 623, 625 (Tex. 1996). Thus, when a motion for summary judgment is denied by the trial judge and the case is tried on the merits, “[t]he party’s remedy is to assign error to the trial court’s judgment ultimately rendered following trial on the merits.” United Parcel Serv., Inc. v. Tasdemiroglu, 25 S.W.3d 914, 916 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Because HNMC challenges the denial of summary judgment directly and fails to assign error to the trial court’s judgment, the denial of its motion for new trial, or the denial of its JNOV, we overrule its first issue. Id.

B. DUTY

In its second issue, HNMC argues that it owed no duty to ensure Chan’s safety while she crossed the public roadway. HNMC and Chan dispute whether this is a premises liability case or a general negligence case. That issue is inconsequential because the initial inquiry under either theory is whether a duty exists, and both sides agree on the body of law governing the duty questions presented. Furthermore, as noted below, the case was submitted to the jury with an instruction on general negligence only, and HNMC waived any complaint as to the theory submitted to the jury because it invited the instruction. For the reasons detailed below, we conclude that HNMC owed Chan a duty.

1. STANDARD OF REVIEW

The existence of a duty is generally a question of law, and that determination is made from the facts surrounding the occurrence in question. Tri v. J.T.T., 162 S.W.3d 552, 563 (Tex. 2005); see Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 503 (Tex. 2017). When the issue on appeal is a question of law, we exercise de novo review. See El Paso Nat’l Gas Co. v. Minco Oil & Gas, Inc., 8 S.W.3d 309, 312 (Tex. 1999). However, a jury question can arise when the facts involving the duty are in dispute. See Pagayon, 536 S.W.3d at 503–04; Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991). When reviewing error under a de novo standard, we conduct an independent analysis of the record to arrive at our own legal conclusion. See Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1998); Rieves v. Buc-ee’s Ltd., 532 S.W.3d 845, 850 (Tex. App.—Houston [14th Dist.] 2017, no pet.).

2. APPLICABLE LAW

To prove an action for negligence, the plaintiff must establish that the defendant had a legal duty. Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009); see Kroger Co. v. Elwood, 197 S.W.3d 793, 795 (Tex. 2006) (per curiam) (noting that “liability cannot be imposed if no duty exists.”). A duty is a legal obligation that requires the defendant to conform to a certain standard of conduct to protect others against unreasonable risks. See El Chico Corp. v. Poole, 732 S.W.2d 306, 315 (Tex. 1987) (“Liability is grounded in the public policy behind the law of negligence which dictates every person is responsible for injuries which are the reasonably foreseeable consequence of his act or omission.”), superseded by statute on other grounds, Tex. Alco. Bev. Code Ann. § 2.02, as recognized by F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 684–85 (Tex. 2007). “Although premises liability is itself a branch of negligence law, it is a ‘special form’ with different elements that define a property owner or occupant’s duty with respect to those who enter the property.” Occidental Chem. Co. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016) (quoting W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005)); see also Rosas v. Buddie’s Food Store, 518 S.W.2d 534, 536 (Tex. 1975) (“The duty of reasonable care is owed to an invitee.”).

The general rule is that a property owner, such as HNMC, has no duty to ensure the safety of a person who leaves the owner’s property and suffers injury on an adjacent public roadway, or to ensure that person’s safety against the dangerous acts of a third party. See Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704, 706 (Tex. App.—Fort Worth 1998, pet. denied); Dixon v. Hous. Raceway Park, Inc., 874 S.W.2d 760, 762–63 (Tex. App.—Houston [1st Dist.] 1994, no writ) (noting that property owner has no duty to ensure the safety of persons who leave owner’s property and suffer injury on adjacent highways). This is because a premises owner’s duty to invitees generally emanates from the owner’s control over the occupied premises and therefore applies only to hazards existing on those premises; the duty does not extend beyond the limits of the premises owner’s control. See Dixon, 874 S.W.2d at 762 (citing Grapotte v. Adams, 111 S.W.2d 690, 691 (Tex. 1938)). However, the general rule is subject to certain exceptions. A premises owner assumes a duty of care if it: (1) agrees or contracts, either expressly or impliedly, to make safe a known, dangerous condition of real property, see Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997); (2) creates the dangerous condition, see Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942); (3) assumes actual control over the adjacent property, see Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993); or (4) knows about, but fails to warn of, an obscured danger on land directly appurtenant to the premises owner’s land. See Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 615 (Tex. 1950).

In determining whether a common-law negligence duty exists, we consider the risk, foreseeability, and likelihood of injury balanced against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing this burden on the defendant. Pagayon, 536 S.W.3d at 503–04; Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). In weighing these factors, we first address risk, foreseeability, and likelihood of injury.

a. RISK

In addressing risk of injury, we also review whether a party had superior knowledge of the risk or a right to control the actor who caused the harm. See Golden Spread Council, Inc. # 562, Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 290–91 (Tex. 1996); Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993) (noting that “questions of duty have turned on whether one party has superior knowledge of the risk, and whether a right to control the actor whose conduct precipitated the harm exists”).

As evidenced by the pattern of similar occurrences, the risk to a pedestrian crossing the street from HNMC’s building to its parking lot, at the same place on Cali Drive where Chan was struck, was significant. The record indicates that HNMC had superior knowledge of the risk because HNMC was aware that Harris County abandoned the crosswalk where Chan was struck prior to Chan’s injury.4 Harris County stopped repainting the stripes marking the crosswalk on Cali Drive, and there were no warning signs or other indications that the crosswalk where Chan was injured was unsafe.

The risk was increased by the design of HNMC’s premises on both sides of the street. A traffic engineer testified at trial that in designing a safe parking lot, pedestrian traffic patterns and habits should be considered. Two engineers testified that when presented with alternative routes, pedestrians will take the quickest route to a destination. It is undisputed that the parking lot vehicle exit/entrance and the northeast exit/entrance of HNMC’s building—the entrance/exit used by Chan—were connected by the abandoned crosswalk and provided the quickest way for individuals leaving HNMC’s building through the northeast door to reach HNMC’s parking lot across Cali Drive. It is further undisputed that HNMC’s design included a concrete pad on both sides of the street from the sidewalk to the curb, directly aligning with the abandoned crosswalk on opposite sides of the street. These concrete areas on both sides of the street aligned with the faded but marked abandoned crosswalk where Chan was killed. This created a risk that a pedestrian would use the crosswalk in the middle of the street closest to their exit from HNMC’s building. The photographs in the record indicate that, although faded, the markings were clearly visible and would appear to a pedestrian as marking a crosswalk on Cali Drive where one could cross the street.

In addition to the exit from the building, the design of the parking lot increased the risk to pedestrians. HNMC placed a sign at the vehicle exit of the parking lot, which partially obstructed the drivers’ right-side view to that side of the street while the pedestrians crossed to a driver’s left side in the crosswalk used by Chan. Because of the location of HNMC’s sign (to the right of vehicles exiting the parking lot) restricting drivers’ visibility, the proximity of the marked crosswalk to the cars exiting the lot, the lack of signs warning drivers of a crosswalk apart from the faded markings on the road, and the visibility of faded crosswalk markings for pedestrians on HNMC’s property, we conclude that there was a high risk of injury.

b. FORESEEABILITY

The most important factor to consider is the foreseeability of the risk. See City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009); Tex. Home Mgmt. v. Peavy, 89 S.W.3d 30, 36 (Tex. 2002); El Chico Corp., 732 S.W.2d at 311. Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). Foreseeability alone, however, is not enough to create a duty. Kirwan, 298 S.W.3d at 624; Nabors Drilling, 288 S.W.3d at 441.

“Foreseeability does not necessarily equate to predictability.” Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W. 3d 506, 519 (Tex. 2019). “Rather, ‘foreseeability’ means that the actor should have reasonably anticipated the dangers that his negligent conduct created for others.” Id.

The record indicates that HNMC could have foreseen the injury to Chan. HNMC was aware of multiple incidents in which a pedestrian was either struck or came close to being struck by a vehicle while using the abandoned crosswalk in the middle of Cali Drive. HNMC’s CEO testified that in most of those incidents, the records did not reflect whether they occurred at the crossing Chan used on Cali Drive or somewhere else along Cali Drive. However, the narratives of those occurrences conclusively demonstrate that HNMC was aware of similar incidents involving vehicles turning left from the parking lot and pedestrians using the same crosswalk.

Prior Occurrences

On December 30, 2008, Michael Barreda, a nurse employed by HNMC, was struck by a vehicle turning left out of the parking lot while Barreda attempted to cross Cali Drive at the same location where Chan was struck.5 On September 28, 2010, Terry Anderson, the director of plant operations for HNMC, wrote the following in a letter to the commissioner of Precinct 4 for Harris County:

On 9.21.2010, a hospital employee attempted to cross Cali Drive on foot to reach the East Parking Lot. Another close call occurred as the vehicle struck the pedestrian. She suffered injuries but was fortunate to be discharged fairly quickly from the hospital.

You will recall that I wrote to you in late 2008 about a similar incident whereby the pedestrian was one of our nurses who was able to push himself back with his hands from the vehicle that failed to slow down at the Pedestrian Crossing on Cali Drive....

I would appreciate it if you or your delegate would meet briefly with me to review options about this continuous danger facing our patients, visitors, staff and physicians.6

On March 25, 2012, a visitor was hit by a car by the “east employee entrance.” The description of the March 25 event provides that the driver was “in the East lot Gate trying to exit” and that he tried “to pull around [the pedestrian.]” Based on the description of Cali Drive in the record, this could have only occurred at the location where Chan was hit because there was no other place on Cali Drive where a driver would “pull around” a pedestrian that was near the employee east doors. Finally, a doctor was struck by a vehicle while attempting to cross in the “middle” of Cali drive on November 2, 2010, when a driver “was waiting [for] others vehicle [sic] to pass so I can turn left ....”

Based on these occurrences, of which HNMC was undisputedly aware of, we conclude that the foreseeability of injury was high, as evidenced by the pattern of similar occurrences, the documentation of the incidents, and the communications from Anderson. See McKenzie, 578 S.W.3d at 519; Walker, 924 S.W.2d at 377.

c. LIKELIHOOD OF INJURY

The likelihood of injury is also high because it is common for serious and life-threatening injuries to occur when a pedestrian is struck by a moving vehicle. Having concluded that the risk, foreseeability, and likelihood of injury were high, we balance those factors against the social utility of HNMC’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing this burden on HNMC. See Pagayon, 536 S.W.3d at 503–04.

d. SOCIAL UTILITY OF HNMC’S CONDUCT

HNMC does not argue on appeal—nor did it argue in the trial court—that its conduct had any social utility, and the record contains no evidence or argument as to whether HNMC’s conduct had any social utility. We conclude that this factor does not support HNMC’s argument that it did not owe a duty to Chan. See San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that “parties asserting error on appeal still must put forth some specific argument and analysis showing that the record and the law supports their contentions.”); Grimm v. Grimm, 864 S.W.2d 160, 163 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“The burden of showing reversible error is on appellant as the complaining party.”); Barham v. Turner Const. Co. of Tex., 803 S.W.2d 731, 740 (Tex. App.—Dallas 1990, writ denied) (“[A]n appellant has the burden to show that the record supports contentions urged ....”); see also Miller v. Miller, No. 14-17-00293-CV, 2018 WL 3151241, at *14 (Tex. App.—Houston [14th Dist.] June 28, 2018, no pet.) (mem. op.) (“This court has no duty to search a voluminous trial record to determine whether an assertion of reversible error is valid.”).

e. MAGNITUDE OF THE BURDEN OF GUARDING AGAINST THE INJURY

In HNMC’s response to Chan’s motion for en banc reconsideration, HNMC argues that “the burden on [HNMC] of preventing the harm was—and would be—unacceptably high.” HNMC bases this argument on the fact that it did not control the road. However, HNMC did not present this argument in its appellate brief or at trial, and thus, we do not consider it here. See Cochran Invests., Inc. v. Chicago Title Ins., 550 S.W.3d 196, 202 (Tex. App.—Houston [14th Dist.] 2018) (“We do not address Chicago Title’s argument regarding the residential sales contract’s savings clause because this argument was not raised in Chicago Title’s appellate brief and was asserted for the first time in its motion for rehearing en banc.”), aff’d, 602 S.W.3d 895 (Tex. 2020); AVCO Corp., Textron Lycoming Reciprocating Engine Div. of AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (supp. op. on reh’g) (“Generally, we do not base our rulings on arguments raised for the first time on rehearing.”); see also Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam) (“We have held repeatedly that the courts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error.”).

Furthermore, we note that in the trial court, Chan and Siemens argued that HNMC could have guarded against injury by, among other actions, warning pedestrians not to cross at the abandoned crosswalk or by sending an email to its employees informing them of the risks associated with the abandoned crosswalk. Chan further argued that HNMC had control of the premises on both sides of the street connected by the abandoned crosswalk. HNMC did not present any argument disputing that these actions could have guarded against injury or that they constitute an unacceptably high burden.

We conclude that this factor does not support HNMC’s argument that it did not owe a duty to Chan. See San Saba Energy, 171 S.W.3d at 338; Grimm, 864 S.W.2d at 163; Barham, 803 S.W.2d at 740.

f. CONSEQUENCES OF PLACING THIS BURDEN ON HNMC

In HNMC’s response to Chan’s motion for en banc reconsideration, HNMC argues that placing this burden on HNMC would result in “substantial liability for [premises owners for] injuries that occur in a public roadway over which the landowner has no control or ... to warn of commonly known risks for which the warnings are likely ineffective.” Again, HNMC did not present this argument in its appellate brief, and we will not consider it. See Cochran Invests., 550 S.W.3d at 202; AVCO Corp., 251 S.W.3d at 676.

Nevertheless, we note that HNMC did not argue or present any evidence in the trial court that a warning sign or an email would have been ineffective at guarding against injury, nor does HNMC point us to anything in the record supporting this assertion or addressing the possible consequences of placing this burden on HNMC. Second, it is undisputed that HNMC owns the premises on both sides of the street, and Siemens argued at trial that, as a result, HNMC has control over the entry points between the parking lot and its building, as well as the sidewalks. For the reasons detailed above, we disagree with HNMC’s characterization that the risk here was “commonly known.”

We conclude that this factor does not support HNMC’s argument that it did not owe a duty to Chan. See San Saba Energy, 171 S.W.3d at 338; Grimm, 864 S.W.2d at 163; Barham, 803 S.W.2d at 740.

g. CONCLUSIONS

Balancing the factors as presented, we conclude that, under the facts of this case, HNMC owed a duty as a matter of law to use reasonable care and avoid foreseeable injuries to others by instructing pedestrians, such as Chan, not to cross Cali Drive in the crosswalk between HNMC’s east parking lot and HNMC’s building. See Pagayon, 536 S.W.3d at 503 (“[T]he existence of duty is a question of law for the court to decide from the facts surrounding the occurrence in question.”); El Chico Corp., 732 S.W.2d at 311 (“If a party negligently creates a situation, then it becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby.”) (quoting Buchanan, 159 S.W.2d at 110); Renfro Drug Co., 235 S.W.2d at 615 (“Where an obscured danger exists on land directly appurtenant to the land owned or occupied, and where that danger is near a place where invitees enter and exit the landowner’s property, the owner or occupier owes a duty to those invitees entering and exiting to warn of the danger.”); Parking, Inc. v. Dalrymple, 375 S.W.2d 758, 762–63 (Tex. App.—San Antonio 1964, no writ) (holding that it could not be concluded as a matter of law that landowner did not owe a duty to make potential entrances and exits safe and to warn of obscured danger present in the route connecting parking lot to movie theater, because it was reasonably foreseeable that patrons would attempt to use route to cross directly to movie theater); see also United Rentals N. Am., Inc. v. Evans, 608 S.W.3d 449, 461 (Tex. App.—Dallas 2020, pet. filed) (“[E]ven in the absence of a specific legally prescribed duty, there exists a general duty applicable to all to exercise reasonable care to avoid foreseeable injury to others.”); Amaya v. Potter, 94 S.W.3d 856, 861 (Tex. App.—Eastland 2002, pet. denied) (“Each person has a general duty to exercise reasonable care to avoid foreseeable injury to others.”); Nguyen v. Sephora USA, No. 14-13-01017-CV, 2014 WL 4202538, at *2 (Tex. App.—Houston [14th Dist.] Aug. 26, 2014, no pet.) (mem. op.) (“The most basic common-law duty is ‘the general duty to exercise reasonable care to avoid foreseeable injury to others.’ ” (quoting El Chico, 732 S.W.3d at 311)).

In their dissent, our colleagues rely on opinions addressing injuries which occurred on public roadways where the injured party entered or exited adjacent property allegedly owned or controlled by the property owner. However, those cases are distinguishable from the facts before us.

In Hirabayashi v. N. Main Bar-B-Q, Inc., an appeal from a summary judgment ruling, a patron parked across the street from a restaurant, in a lot not owned by the restaurant. Hirabayashi, 977 S.W.2d at 705. Upon leaving the restaurant to go back to his car, the patron crossed the middle of the street, rather than using “the crosswalk farther down the block,” and was hit by a car. Id. at 706. The patron sued the restaurant, alleging negligence for operating a business without adequate parking, creating an unreasonable risk of harm by not providing for a crosswalk or light to be placed in the street, and failing to warn of the dangerous nature of the roadway in front of the business. Id. The restaurant argued that it owed no duty to someone crossing the middle of a busy street, and the Fort Worth court of appeals agreed. Id. at 706-07. The appellate court held that none of the four “assumed duty” exceptions applied for various reasons, including because the restaurant did not “create a dangerous condition in the roadway.” Id. at 707.

In Cabrera v. Spring Ho Festival, Inc., a festival attendee left the festival grounds to cross an adjacent street to reach the lot where she was to be picked up. See Cabrera v. Spring Ho Festival, Inc., No. 03-09-00384-CV, 2010 WL 3271729, at *3 (Tex. App.—Austin Aug. 20, 2010, no pet.) (mem. op.). As she crossed the street, she was struck and killed by a vehicle. Id. Her parents sued the festival operator, alleging that the operator was negligent “in failing to choose a safe location for the festival, failing to provide adequate procedures for the safe ingress and egress of festival attendees, [and] failing to provide adequate on-site parking.” Id. The operator moved for summary judgment, arguing that it owed the deceased no duty at the time of the accident. Id. The Austin court of appeals agreed. Because the accident did not occur on the festival premises, and because the festival operator had no right to control traffic or otherwise occupy the roadway, the court held that the festival operator owed no duty to ensure the attendee’s safety as she crossed the street. Id. at *3.

Unlike the property owners in Hirabayashi and Cabrera, HNMC owns the premises on both sides of Cali Drive; HNMC’s premises on both sides of Cali Drive influenced how pedestrians and vehicles interacted with each other at the abandoned crosswalk; and HNMC was aware of an increased risk of harm posed by vehicles exiting its parking lot to pedestrians using the abandoned crosswalk.

Tkatch v. Grand Pky. I & II Acquisition Grp.; Garrett v. Hous. Raceway Park, Inc.; and Lawson v. B. Four Corp. are distinguishable because the property owners in those cases did not have notice of similar incidents. Based on the particular facts in each case, the foreseeability factor weighed against the existence of a duty. Cf. Tkatch v. Grand Pky. I & II Acquisition Grp., Ltd., No. 01-96-01355-CV, 1997 WL 694919, at *4 (Tex. App.—Houston [1st Dist.] Oct. 30, 1997, no pet.) (not designated for publication) (“Like the premises owners in Naumann and Lawson, it was reasonable for AGL to expect that motorists such as Wheeler would exercise due care in exiting their premises and entering the highway safely.”) (emphasis added); Garrett v. Hous. Raceway Park, Inc., No. 14-94-00929-CV, 1996 WL 354743, at *2 (Tex. App.—Houston [14th Dist.] June 27, 1996, no writ) (not designated for publication) (“The risk and foreseeability of accidents in front of the Raceway, therefore, is no greater than along other portions of the highway that are not adjacent to the Raceway.”); Lawson v. B Four Corp., 888 S.W.2d 31, 35 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (“[W]e find that it was not reasonably foreseeable that a driver exiting Quality’s premises and locking the cable behind him would park his truck across three lanes of traffic.”).7

Here, there was evidence in the record that HNMC was aware of prior incidents resulting in injuries, and based on its investigations, requested that changes be implemented to prevent further incidents. This evidence is lacking in the authority cited by the dissent. One of the distinguishing factor in the cases cited by the dissent is the lack of notice to the property owners, which weighs against the existence of a duty. See Hillis v. McCall, 602 S.W.3d 436, 440–42 & n.5 (Tex. 2020). Furthermore, Cali Drive is not merely adjacent to HNMC’s premises, but rather it connects HNMC’s building to its parking lot. Cf. Cabrera, 2010 WL 3271729 at *3–4; Hirabayashi, 977 S.W.2d at 706–08; Lawson, 888 S.W.2d at 32–35; Dixon, 874 S.W.2d at 762–63; Naumann, 749 S.W.2d at 190–92; Tkatch, 1997 WL 694919 at *4.

We also disagree with the dissent’s characterization that the danger here is only inattentive drivers. Instead, HNMC’s premises increased the danger to pedestrians because pedestrians crossed Cali Drive at the abandoned crosswalk where there are no signs alerting drivers that pedestrians will be crossing there; the abandoned crosswalk is a short distance to the left-hand side of drivers exiting HNMC’s parking lot; and the right-hand side view of drivers is partially obstructed when they exit HNMC’s parking lot. HNMC knew that an increased risk to pedestrians crossing Cali Drive existed at the abandoned crosswalk and had control of the premises on both sides of Cali Drive. See Buchanan, 159 S.W.2d at 110 (“[I]t may be said generally ... that if a party negligently creates a dangerous situation it then becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby.”); see also Tkatch, 1997 WL 694919 at *2 (“[E]very person has a duty to take affirmative action to control or avoid increasing the danger from another’s conduct which the actor has at least partially created.”) (citing El Chico Corp., 732 S.W.2d at 312).

We overrule HNMC’s second issue.

C. JURY CHARGE

In its third issue, HNMC argues that the case was submitted to the jury under an erroneous theory of liability—general negligence—when it should have been submitted under a more specific premises-defect theory.

1. STANDARD OF REVIEW & APPLICABLE LAW

We review a trial court’s decision on jury charge issues for an abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006) (per curiam); Sloane v. Goldberg B’Nai B’Rith Towers, 577 S.W.3d 608, 616 (Tex. App.—Houston [14th Dist.] 2019, no pet.). A trial court abuses its discretion in refusing to submit a requested question or instruction if the pleadings and evidence raise the issue. Sloane, 577 S.W.3d at 616. In addition, a trial court’s error in refusing a request or instruction is reversible error only if the refusal probably caused the rendition of an improper verdict. Tex. R. App. P. 44.1(a)(1); Sloane, 577 S.W.3d at 616. To determine whether an alleged error in the jury charge is reversible, we consider the pleadings, the evidence at trial, and the charge in its entirety. Sloane, 577 S.W.3d at 616.

In the context of jury charge issues, a defendant is under no obligation to object to a plaintiff’s incorrect submission. See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 481–82 (Tex. 2017). But, the invited error doctrine holds that “a party cannot complain on appeal that the trial court took a specific action that the complaining party requested.” Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) (per curiam); see W&T Offshore Inc. v. Meyers, 577 S.W.3d 247, 252–53 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (op. on reh’g). Thus, a party cannot encourage a trial court to submit a jury question in a particular form and then contend on appeal that the charge was erroneous. See United Scaffolding, 537 S.W.3d at 482 (“We have acknowledged that a defendant may invite error and waive its argument on appeal when it persuades a trial court to adopt a jury charge that it later alleges supports an improper theory of recovery.”); Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 775 (Tex. 2010) (“[Appellant] cannot now obtain a reversal on grounds that the jury should have decided the facts under a theory of liability that [appellant] itself persuaded the trial court not to submit to the jury.”); Gen. Chem. Corp. v. De La Lastra, 852 S.W.2d 916, 920 (Tex. 1993) (“Parties may not invite error by requesting an issue and then objecting to its submission.”); Daily v. Wheat, 681 S.W.2d 747, 757 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (“It is well settled that a party cannot complain on appeal when instructions given are substantially the same as those requested by appellant.”).

2. APPLICATION

In its third issue, HNMC argues that the “submission of this case to the jury with a broad-form negligence question was harmful error.” HNMC further asserts that the case should have been submitted under a more specific premises defect theory. Appellees asserts that HNMC invited the alleged jury charge error; alternatively, appellees claim that the jury was properly instructed. We agree that any alleged error was invited by HNMC.

Before trial, HNMC submitted a proposed jury charge that addressed the issue of liability under a broad-form general negligence question. During the charge conference, Siemens proposed submitting a premises-liability theory to the jury as to HNMC. However, HNMC opposed Siemens’ request, stating, “I think that the jury charge as a broad form negligence charge is appropriate, Your Honor.” Chan joined HNMC’s request for a broad submission, and the trial court rejected Siemens proposed charge and accepted HNMC and Chan’s general negligence charge. The trial court then submitted the question of liability to the jury as a general negligence question.

HNMC agreed to the charge as submitted at trial, but now complains of the submission of the charge. We conclude that HNMC cannot complain on appeal that the jury instruction was erroneous because HNMC itself requested that the trial court submit a general negligence question instead of a specific premises-liability question. See Del Lago Partners, 307 S.W.3d at 775. We overrule HNMC’s third issue.

D. SUFFICIENCY OF THE EVIDENCE

In its fourth issue, HNMC argues that the evidence is legally and factually insufficient to support the jury’s finding that HNMC breached a duty it owed to Chan and that appellees suffered damages resulting from the breach.

1. STANDARD OF REVIEW & APPLICABLE LAW

When reviewing the legal sufficiency of the evidence, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005); Arshad v. Am. Express Bank, FSB, 580 S.W.3d 798, 803 (Tex. App.—Houston [14th Dist.] 2019, no pet.). We credit favorable evidence if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. See City of Keller, 168 S.W.3d at 827. Our task is to determine whether the evidence at trial would enable reasonable and fair-minded people to find the facts at issue. See id. As long as the evidence at trial “would enable reasonable and fair-minded people to differ in their conclusions,” we will not substitute our judgment for that of the factfinder. See id. at 822. The factfinder is the only judge of witness credibility and the weight to be given to testimony. See id.

When reviewing a challenge to the factual sufficiency of the evidence, we examine the entire record, considering both the evidence in favor of, and contrary to, the challenged finding. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406–07 (Tex. 1998). We may not substitute our own judgment for that of the trier of fact, even if we would reach a different answer on the evidence. See id. at 407. We will set aside a finding for factual insufficiency only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See id. The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. GTE Mobilnet of S. Tex. Ltd. P’ship v. Pascouet, 61 S.W.3d 599, 616 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).

An appellant may not challenge a trial court’s conclusions of law for factual sufficiency, but we may review the legal conclusions drawn from the facts to determine their correctness. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). “If the reviewing court determines a conclusion of law is erroneous, but the trial court rendered the proper judgment, the erroneous conclusion of law does not require reversal.” Id.

2. APPLICATION

First, we note that HNMC does not provide us with the standard of review or applicable law for determining its factual sufficiency challenge, and the argument in its brief only addresses legal sufficiency. As such, we conclude that HNMC’s factual sufficiency challenge is waived. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); Canton-Carter v. Baylor College of Med., 271 S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“Failure to cite legal authority or to provide substantive analysis of the legal issues presented results in waiver of the complaint.”); see also Duke Realty Ltd. P’ship v. Harris Cnty. Appraisal Dist., No. 14-15-00543-CV, 2016 WL 3574666, at *2 (Tex. App.—Houston [14th Dist.] June 30, 2016, no pet.) (mem. op.) (concluding that appellant’s factual sufficiency challenge was waived because appellant “did not provide any discussion of the appropriate standard of review for factual sufficiency challenges, any citation of appropriate legal authority, or any analysis applying the appropriate legal authority to the facts”). Likewise, HNMC does not provide us with citations to the relevant applicable law or substantive analysis regarding its legal sufficiency challenge as to causation. Thus, this argument is also waived. See Tex. R. App. P. 38.1(i); Canton-Carter, 271 S.W.3d at 931; see also Tchernowitz v. The Gardens at Clearwater, No. 04-15-00716-CV, 2016 WL 6247008, at *1 (Tex. App.—San Antonio Oct. 26, 2016, no pet.) (mem. op.) (“When an appellant fails to cite applicable authority, fails to provide relevant citations to the record, or fails to provide substantive analysis for an issue presented in the brief, nothing is presented for our review.”)

As to HNMC’s legal sufficiency challenge regarding its breach of a duty, HNMC’s main complaint is that appellees did not designate any experts to testify concerning HNMC’s alleged breach. However, there is no requirement to only consider expert evidence presented by the plaintiffs’ own experts. To the contrary, in a legal sufficiency review, we look at all evidence that supports the verdict, regardless of its source. See City of Keller, 168 S.W.3d at 823.

Before trial, in its designation of experts, appellees cross-designated all expert witnesses designated by “any other party to this proceeding.” During trial, Siemens’s expert witnesses detailed HNMC’s negligence. One such witness was Joseph Blaschke, a consulting engineer specializing in the “areas of highway design and traffic engineering.” Blaschke testified concerning some of the fundamentals of parking lot design. First, he said that it is inevitable that pedestrians and vehicles will intermingle, and that pedestrian safety must be prioritized. He added that pedestrians will generally take the most direct route possible. Blaschke also claimed that it is important to reduce the conflict points where vehicles and pedestrians interact. He stated one of the best ways to accomplish this is by routing vehicles through one location and moving the pedestrians through another location; “Good example, only openings in fences where pedestrians should go.”

According to Blaschke, the problems with HNMC’s design of the parking lot began with the “inherently risky design” of having a public road separating the facility from the parking lot. Blaschke next criticized the narrow, but long, design of the parking lot because it “necessitates mid-block crossings.” And according to Blaschke, mid-block crossings are risky because drivers are accustomed to encountering pedestrians at intersections; drivers are not prepared to encounter pedestrians in the middle of the block. Blaschke pointed out that the parking lot was surrounded by fencing, and yet HNMC failed to create a pedestrian gate. The only way for pedestrians to enter and exit the parking lot was through the driveway that is intended for, and used by, vehicles. Blaschke testified that this problem was exacerbated by the fact that, for unknown reasons, other potential vehicle driveways were closed. This resulted in a single driveway that acted as an access point for approximately 85% of the vehicles in the parking lot.

Deputy Sean Sargent testified that the stairs leading out of the building do not line up with the crosswalks; instead, the stairs line up with the vehicle driveway to the parking lot. As Jones testified, the other crosswalks were “quite a ways” away. Blaschke opined that HNMC could have installed bushes or an obstruction to prevent pedestrians from crossing in this unsafe location. However, instead of doing so, HNMC installed concrete slabs on both sides of the street in 2011 that aligned with the abandoned crosswalk used by Chan and other pedestrians. Kwasniak testified that the concrete slabs further led pedestrians to believe this was a safe area to cross. Blaschke and Kwasniak also testified concerning signs placed on the northside of the vehicle driveway. Allegedly, these signs obstructed the view of drivers and led to drivers focusing their attention northward to scan for southbound vehicles, instead of focusing southward where the pedestrians were crossing the street after descending the stairs.

Puthoff, CEO of HNMC, confirmed that several other “misses and scares” had occurred on Cali Drive prior to March 17, 2015. HNMC knew that the crosswalk where Chan crossed was no longer maintained by the County, and knew pedestrians were still crossing at that location, but did nothing to warn pedestrians not to cross there, despite its knowledge of multiple close calls involving pedestrians and vehicles exiting its parking lot.

Blaschke testified that HNMC could have taken any number of steps to address the safety concerns: closing the northeast entrance or using it only as an emergency exit, remove the steps, installing a grassy area, fencing, or signs to instruct pedestrians to cross at the designated areas, and/or installing a pedestrian gate so that pedestrians and vehicles do not share an access point. According to Blaschke, Chan’s accident “would not have happened” if any of these modifications were enacted. Kwasniak stated that having a pedestrian gate would funnel more pedestrians away from the conflict point, leading to fewer injuries overall.

Reviewing the evidence in the light most favorable to the verdict, we conclude there was legally sufficient evidence to support the jury’s verdict. See id. We overrule HNMC’s fourth issue.

E. EVIDENCE OF SIMILAR OCCURRENCES

In its fifth issue, HNMC argues that the trial court erred by admitting evidence related to other pedestrian-vehicle incidents and in denying its motions for mistrial based on the admission of the evidence.

1. EVIDENTIARY CHALLENGE

a. STANDARD OF REVIEW & APPLICABLE LAW

We review a trial court’s admission of evidence under the abuse-of-discretion standard. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005) (per curiam); Katy Int’l, Inc. v. Jiang, 451 S.W.3d 74, 93 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). A trial court abuses its discretion if it acts without reference to any guiding rules or principles or if its decision is arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). “If a party later permits the same or similar evidence to be introduced without objection, the error in the admission of testimony generally is harmless and is waived, unless the party obtains a running objection.” Katy Int’l, 451 S.W.3d at 94 (citing Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004)); see Bhatia v. Woodlands N. Hous. Heart Ctr., PLLC, 396 S.W.3d 658, 669 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).

Furthermore, a party may not complain on appeal that the opposing side’s evidence was improperly admitted if the party introduced the same or similar evidence. Harris Cnty. Flood Controld Dist. v. Taub, 502 S.W.3d 320, 326 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). A party may open the door to the admission of otherwise objectionable evidence through a witness’s testimony that conveys a false impression. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 906 (Tex. 2000).

b. APPLICATION

HNMC complains that the trial court erred by admitting testimony and evidence of prior incidents involving pedestrian encounters with vehicles around HNMC’s perimeter.

At trial, HNMC engaged in a line of questioning that implied Cali Drive was safe because despite 30,000 employees crossing that street every year, there was a relative absence of incidents. HNMC’s counsel then asked Blaschke, “So we have two incidents over a seven-year period which, even with my terrible math, is going to be 210,000 people crossing that street during that period of time?” Bassin, counsel for Siemens, asked to approach the bench and argued:

I think the door has clearly been opened now for other similar incidents ... There are four other [incidents] that are clearly in the area that are left-hand turns on to Cali Drive w[h]ere pedestrians were hit crossing to and from the hospital. And there is now an implication to the jury that there is [sic] only two. That is not accurate. (RR11 119, 121).

The trial court agreed and admitted the documents pertaining to the other four incidents; HNMC objected, alleging that “[i]f this evidence comes in right now ... then it will destroy all credibility I have with the jury.... [and] it will be highly prejudicial.” By giving the impression that there had been only two incidents over a seven-year period on Cali Drive, the trial court could have reasonably concluded that HNMC opened the door to rebuttal evidence to refute this testimony. See id. Based on the record before us, we cannot conclude that the trial court abused its discretion when it found that HNMC opened the door to evidence pertaining to the prior incidents. See id.; Downer, 701 S.W.2d at 241–42.

HNMC also argues that the trial court erred in admitting two documents that Siemens used during opening statements. After discussion, the trial court excluded HNMC’s plant-operations records but admitted two letters between the director of HNMC’s plant operations and Harris County. One of the letters described the Barreda incident in 2008 and a collision involving a pedestrian in September 2010 and requested a meeting to address the continuous danger on Cali Drive; the other letter, in response to HNMC’s letter regarding pedestrian/patient/employee safety, identified the actions Harris County was implementing to improve pedestrian safety, and included recommendations Harris County made to HNMC to improve pedestrian safety on Cali Drive, which included the removal and relocation of parking lot access points. However, HNMC offered and requested the admission of the two complained of letters as exhibits, and the trial court admitted them into evidence. Because HNMC moved for the admission of these letters into evidence, HNMC cannot now complain on appeal about this evidence, and thus, we reject this argument. See Taub, 502 S.W.3d at 326.

2. HEARSAY

HNMC avers that the trial court erred when it admitted evidence of prior incidents involving vehicles and pedestrians on Cali Drive, asserting documents evidencing the prior incidents are hearsay and were not properly authenticated.

Before trial, HNMC filed a motion to exclude the entire file of HNMC’s plant operations on multiple bases: that the entire file is hearsay, unauthenticated, and that the prior incidents did not occur at the same location as Chan’s death. A pre-trial hearing was held outside the presence of the jury. The trial court sustained HNMC’s hearsay objection and excluded the documentation of prior incidents, but the trial court admitted the two letters from HNMC to Harris County.8 HNMC’s hearsay complaint concerns the documentation of four prior incidents involving pedestrians and vehicles on Cali Drive. As noted above, the trial court admitted documents of these prior similar incidents after ruling that HNMC opened the door to admission of the evidence.

“Evidence that is otherwise inadmissible may become admissible when a party opens the door ... by leaving a false impression with the jury that invites the other side to respond.” Comm’n for Lawyer Discipline v. Cantu, 587 S.W.3d 779, 787 (Tex. 2019) (per curiam) (quoting Hayden v. State, 296 S.W.3d 549, 554 (Tex. Crim. App. 2009)); see also Sw. Electric Power Co. v. Burlington N. R.R., 966 S.W.2d 467, 473 (Tex. 1998) (“A party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when he, himself, introduced the same evidence or evidence of a similar character.” (quoting McInnes v. Yamaho Motor Corp., 673 S.W.2d 185, 188 (Tex. 1984))). “ ‘Opening the door’ or inviting testimony that would otherwise pertain to an inadmissible subject matter does not mean that such testimony is necessarily invited into evidence in any form, including hearsay.” Gabriel v. Lovewell, 164 S.W.3d 835, 842–43 & n.3 (Tex. App.—Texarkana 2005, no pet.). “However, where such testimony pertains to the same subject matter and is directly contrary to earlier testimony, it is admissible, including hearsay.” Id. at 842–43.

Here, HNMC opened the door to the evidence of similar incidents because HNMC implied that there were only two prior incidents on Cali Drive involving pedestrians during a seven-year period. The documentation of similar incidents admitted by the trial court was directly contrary to this false impression and pertained to the same subject matter. Thus, we cannot conclude that the trial court abused its discretion when it admitted documentation of prior similar incidents. See Comm’n for Lawyer Discipline, 587 S.W.3d at 787; Sw. Electric Power Co., 966 S.W.2d at 473; see also Auld, 34 S.W.3d at 906 (“If the trial court did not allow the survey reports into evidence after Horizon’s witnesses testified in this manner, the jury would be left with a false impression that Horizon had not been cited for rendering improper care when, in fact, it had.”); Hulsey v. Attalla, No. 01-18-00180-CV, 2019 WL 3484082, at *14 (Tex. App.—Houston [14th Dist.] Aug. 1, 2019, no pet.) (mem. op.) (“[O]therwise inadmissible evidence may be admitted to correct a false impression left by the questioning of a witness.”); In re D.A.H., Nos. 13-07-00444-CV, 13-07-00450-CV, 2008 WL 3920772, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 27, 2008, no pet.) (mem. op.) (“[W]hen evidence is necessary to explain a matter ‘opened up’ by the other party, a court may decide to admit evidence that would otherwise be inadmissible.”). We reject HNMC’s argument.

3. MOTION FOR MISTRIAL

HNMC also argues that the trial court abused its discretion by denying its motions for mistrial. During trial, HNMC asserted three oral motions for mistrial. We review a ruling on a motion for mistrial for an abuse of discretion. See Tex. Turnpike Auth. v. McCraw, 458 S.W.2d 911, 913 (Tex. 1970); Petroleum Workers Union of the Repub. of Mex. v. Gomez, 503 S.W.3d 9, 35 (Tex. App.—Houston [14th Dist.] 2016, no pet.).

HNMC argues that the trial court abused its discretion when it overruled its motions for mistrial because the trial court erred in admitting the two letters from HNMC to Harris County. As previously concluded, HNMC itself admitted the two letters into evidence. Thus, we reject this argument.

HNMC also argues that the trial court abused its discretion when it overruled its motions for mistrial because the documentation of prior similar incidents involving pedestrians and vehicular traffic on Cali drive was inadmissible hearsay. However, HNMC did not urge this as the basis for granting any of its motions for mistrial. Thus, this argument has not been preserved for our review. See Tex. R. App. P. 33.1(a); Superbash 2017, LLC v. Fun Fest Ent., 634 S.W.3d 471, 480–82 (Tex. App.—Houston [14th Dist.] 2021, no pet.); see, e.g., United Cab Co., Inc. v. Mason, 775 S.W.2d 783, 785–86 (Tex. App.—Houston [1st Dist.] 1989, writ denied) (concluding that argument was not preserved for appellate review when appellant did not urge the argument in its motion for mistrial); Cain v. Zurich Ins., 426 S.W.2d 575, 578 (Tex. App.—Dallas 1968, no writ) (“Appellant did not move for a mistrial on account of the alleged conduct of counsel and has therefore waived his right to complain thereof.”).

Finally, HNMC has not demonstrated that it was harmed by Siemens’ disclosure of these documents. Assuming, arguendo, that the letters and documents concerning the prior incidents were improperly published, HNMC has failed to demonstrate—and we fail to see—how HNMC was harmed by the allegedly improper publication of the letters and documents concerning the prior incidents. We overrule HNMC’s fifth issue.

C. CONCLUSION

We affirm the judgment of the trial court.

EN BANC CONCURRING OPINION

Meagan Hassan Justice

Motion for En Banc Reconsideration Granted, Affirmed, and En Banc Majority, Concurring, and Dissenting Opinions filed December 30, 2021.

The majority of this en banc Court concludes HNMC owed Chan a duty of ordinary care and I agree therewith. I write separately to articulate my firmly held view against our dissenting colleague’s analysis concerning duty.

I. Duty

Our dissenting colleague first opines that we have mistakenly disregarded the truth, i.e., that “[t]he unreasonable hazard in this case is the risk posed to pedestrians by inattentive drivers.” Dissenting Op. at 17 (Jewell, J.). This calculated limitation of potential sources of danger is myopically contrary to basic principles of tort law. See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992) (“There can be concurrent proximate causes of an accident. All persons whose negligent conduct contributes to the injury, proximately causing the injury, are liable.”) (citations omitted); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991) (“There may be more than one proximate cause of an event.”) (citations omitted).1 Further, it also disregards reasonable inferences that support the verdict despite clear instructions to refrain from doing so. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).

While I agree that moving cars are a proximate cause of vehicle-pedestrian collisions at the crosswalk in question (and a sine qua non of Chan’s death), the evidence in this case tends to prove several particularized facts that inescapably affect this Court’s conclusions, the trial court’s conclusions, and the jury’s findings (particularly when viewed in the light most favorable to the verdict and when all reasonable inferences in favor thereof are indulged). See id. These facts (and reasonable inferences) include:

(1) there had been a crosswalk at that location;

(2) HNMC knew there had been a crosswalk at that location;

(3) there were previous vehicle-pedestrian collisions at that crosswalk;

(4) HNMC had notice of said vehicle-pedestrian collisions at that crosswalk;

(5) the crosswalk had been abandoned;

(6) HNMC knew the crosswalk had been abandoned;

(7) HNMC at least had reason to know no one provided notice to pedestrians that the crosswalk had been abandoned;

(8) HNMC at least had reason to know that pedestrians were not warned of the danger at that particular crossing area;

(9) HNMC’s employees were “funneled” into a “dangerous zone”;

(10) HNMC knew its employees still used the crosswalk in question;

(11) HNMC knew (or at least had reason to know) that drivers of vehicles “may not see or recognize the risk of pedestrians attempting to cross the street”;

(12) HNMC knew the risk at issue presented “a life safety issue too serious to ignore for the protection of our patients, visitors, staff, and physicians”;

(13) HNMC knew (or at least had reason to know) its employees were exposing themselves to an unreasonable risk when utilizing an abandoned crosswalk where other vehicle-pedestrian collisions had occurred; and (despite the foregoing)

(14) HNMC failed to warn:

• pedestrians that the crosswalk had been abandoned;

• pedestrians not to cross there;

• drivers that pedestrians were present (particularly at a crosswalk HNMC knew (a) was abandoned; (b) pedestrians had no reason to know was abandoned; and (c) was the site of previous vehicle-pedestrian collisions); and

• drivers and pedestrians that the crosswalk at issue was a particularly dangerous area because it had been the site of previous vehicle-pedestrian collisions under materially similar circumstances.

Whether a duty exists is a “question of law for the court to decide from the facts surrounding the occurrence in question.” Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990). We are obliged to credit each piece of the foregoing evidence in support of the judgment if reasonable jurors could have done so and to disregard contrary evidence unless reasonable jurors could not have done so. City of Keller, 168 S.W.3d at 827. The jury heard evidence supporting the court’s judgment that HNMC (1) exercised control over the roadway (when it built two vision-obstructing signs and a concrete pad on the county’s right-of-way) and (2) took one or more affirmative actions with respect thereto that proximately caused Chan’s death. These actions (including, e.g., funneling into a dangerous zone) imposed a duty upon HNMC to use ordinary care to protect pedestrians like Chan from a risk it described as “a life safety issue too serious to ignore for the protection of our patients, visitors, staff, and physicians.” In my view, this concession (in connection with the remaining facts of this case) is sufficient to support the trial court’s implicit post-verdict conclusion that HNMC (1) exposed Chan to a known and significant risk and (2) therefore owed Chan a duty to exercise ordinary care.

The trial court implicitly denied HNMC’s motion for summary judgment and said motion is not the subject of this appeal; therefore the propriety of the trial court deferring to the jury for determinations of disputed fact is not before us. See generally Tex. R. App. P. 38.1(i). Additionally, the trial court properly deferred to the jury concerning fact questions in accordance with this court’s precedents. See Barnes v. Wendy’s Int’l, Inc., 857 S.W.2d 728, 729 (Tex. App.—Houston [14th Dist.] 1993, no writ) (“[W]hether facts giving rise to a duty exist, is a question for the fact finder ....”) (emphasis in original) (citing Fuqua v. Taylor, 683 S.W.2d 735, 737 (Tex. App.—Dallas 1984, writ ref’d n.r.e.)); accord Axelrod R & D, Inc. v. Ivy, 839 S.W.2d 126, 129 (Tex. App.—Austin 1992, writ denied) (“Negligence is a question for the jury when facts are such that the jury could draw an inference either way.”) (citing Lyons v. Paul, 321 S.W.2d 944, 950 (Tex. App.—Waco 1958, writ ref’d n.r.e.)); see also 53 Tex. Jur. 3d, Negligence § 132 (2021) (“In the absence of a law characterizing the actor’s conduct as negligent, the issue whether the actor should have foreseen and prevented the calamity and has, therefore, been negligent is one to be determined by the jury by reference to the facts.”) (citing Tex. & Pac. Ry. Co. v. Murphy, 46 Tex. 356 (1896); Panhandle & S.F. Ry. Co. v. Willoughby, 58 S.W.2d 563 (Tex. App.—Amarillo 1933, writ dism’d)). It is not within our province to eradicate plaintiffs’ victories by viewing the facts in anything less than the light most favorable to the jury’s verdict. Viewed in hindsight, it is simply not extraordinary that a pedestrian was hit by a car at an abandoned crosswalk where other pedestrians had been hit without warnings that the crosswalk (1) had been abandoned or (2) was subject to drivers who did not know there were pedestrians crossing at that particularly dangerous point. See Critical Path Res., Inc. v. Cuevas, 561 S.W.3d 523, 559 (Tex. App.—Houston [14th Dist.] 2018, pet. granted, judgm’t vacated w.r.m.) (Busby., J.) (“Viewed in hindsight, the operation of these third-party forces in bringing about the harm was not extraordinary; the turnaround process was designed to have third parties follow the schedule Critical Path created.”) (citing Restatement (Second) of Torts §§ 435(2), 442(b) (Am. Law Inst. 1965)); cf. Tex. R. App. P. 56.3 (“In any event, the Supreme Court’s order [concerning settled cases] does not vacate the court of appeals’ opinion unless the order specifically provides otherwise.”). Indulging every reasonable inference in the jury’s favor, HNMC owed Chan a duty to exercise reasonable care.

The strength of my conviction on this issue is only reinforced by the Texas Supreme Court’s clear instructions: “In determining whether a legal duty exists we take into account not only the law and policies of this State, but the law of other states and the United States, and the views of respected and authoritative restatements and commentators.” SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 351 (Tex. 1995). The Restatement (Second) of Torts is (at least) a respected and authoritative restatement. Section 449 of the Restatement succinctly summarizes the relevant law: “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.” Restatement (Second) of Torts § 449 (Am. Law Inst. 1965) (emphasis added); see also id. cmt. a (“It is only where the actor is under a duty to the other, because ... his conduct has created or increased the risk of harm through the misconduct, that he becomes negligent.”). Section 449 has previously been adopted by this court. See Critical Path Res., Inc., 561 S.W.3d at 555;2 Barrick v. CRT Disaster Servs., No. 14-06-00853-CV, 2007 WL 2790386, at *4 (Tex. App.—Houston [14th Dist.] Sept. 27, 2007, no pet.) (mem. op.); accord Hale v. Burgess, 478 S.W.2d 856, 858 (Tex. App.—Waco 1972, no pet.). I believe that under our rules, this court’s previous adoption of section 449 should have been enough to affirm the existence of HNMC’s duty (based on the evidence, the verdict, and all reasonable inferences from the evidence that support the verdict) without requiring en banc review to maintain the uniformity of this court’s precedents. See Tex. R. App. P. 41.2(c).3

Continuing to examine other respected authorities, the Texas Supreme Court has previously cited to the treatise Modern Tort Law. See Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 451 (Tex. 2006). There, the authors observe that this particular “problem is made more difficult when foreseeability is incorrectly applied to both duty and causation. The correct rule is that if it is foreseeable that a third person might conduct himself or herself to the injury of the plaintiff, this may be a foundation for liability.” Barry A. Lindahl, Modern Tort Law: Liability and Litigation § 3:31 (2d ed. 2019) (citations omitted). The authors are familiar with our dissenting colleague’s approach and reject it as incorrect. See id. (“[T]he intervening act of a third person does not relieve the original wrongdoer of liability if the third party’s conduct was a reasonably foreseeable result of the actor’s wrongdoing ... if an independent, illegal, or willful act is of such a nature that it might have been anticipated, the duty arises out of that fact and the original wrongdoer will be liable for the resulting injuries.”);4 see also id. (“Another basis for liability is where the actor’s own affirmative act has created or exposed the plaintiff to a recognizable high degree of risk of harm through such conduct which a reasonable person would take into account.”); Dan B. Dobbs, Paul T. Hayden, & Ellen M. Bublick, The Law of Torts § 125 (2d ed. 2011) (“It is also possible to use the term duty in a radically different way by speaking of duties that are not standards at all. Instead of saying that the defendant is under a duty of reasonable care, a judge could say the defendant is under a duty to keep a lookout or to drive so that he could stop within the range of his vision. This kind of usage is almost always a shorthand expression that really refers to something else.”). A majority of this en banc Court has elected to continue this court’s rejection of the dissent’s approach and I expressly join therewith. See generally Critical Path Res., Inc., 561 S.W.3d at 579-89 (Jewell, J., dissenting).

Finally, the Restatement contains another seemingly relevant point: “If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.” Restatement (Second) of Torts § 321 (Am. Law Inst. 1965); see also Lear Siegler, Inc., 819 S.W.2d at 472 & n.1. While this section is informative and satisfied by reasonable inferences from the jury’s findings, it is not yet the law of the land and a majority of this en banc Court does not rely upon it. See Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 438 (Tex. 1997) (“This Court has not recognized claims based on Restatement sections 321 ... or 389 .... These sections are particularly ill-suited for application to what are essentially products liability claims because they impose liability even when the manufacturer provides adequate warnings.”).

II. Relevance

Our dissenting colleague also opines that “vision-obstructing signs” are “irrelevant to the facts of this case”. Dissenting Op. at 22 (Jewell, J.). This conclusion effectively refuses to credit evidence concerning vision-obstructing signs, presumably on the implied basis that a jury could not have given it any credit at all. However, this argument was waived because it was not briefed.

Our dissenting colleague proceeds to take issue with the majority’s implied conclusion that drivers who turn left will look right when they do so. See id. at 23 (“[A]ppellees contend that drivers will be looking right when turning left, and that the hospital is responsible for guarding against such negligent behavior.”). The majority does not contend HNMC was negligent by preventing such negligence, in large part because the majority never concludes (nor even implies) that looking right when turning left is negligent. Instead, looking right when turning left is required by Texas law. See Tex. Transp. Code Ann. § 545.152 (“To turn left at an intersection or into an alley or private road or driveway, an operator shall yield the right-of-way to a vehicle that is approaching from the opposite direction and that is in the intersection or in such proximity to the intersection as to be an immediate hazard.”); see also Tex. Dep’t of Pub. Safety, Tex. Driver Handbook at 42-43 (Sept. 2017), https://www.dps.texas.gov/internetforms/forms/dl-7.pdf (“Turning a corner appears to be a simple operation. However, many crashes and confusion in traffic are caused by drivers who do not turn properly .... How to Make a Left Turn .... Look in all directions before starting to turn .... Yield the right-of-way to any vehicle approaching from the opposite direction ... enter[ ] the lane in which you will interfere the least with traffic.”) (emphasis added). The dissent’s conclusion that HNMC “had every right” to expect drivers to “exercise due care” only highlights the correctness of Appellees’ argument.

III. Risk-Utility Analysis

Our dissenting colleague also criticizes the majority for failing to mention that Chan did not expressly invoke the risk-utility test in the trial court and that it “remains unexplained” as to why HNMC would address those issues in its opening brief. Respectfully, I do not believe that a majority en banc opinion needs to explain that when appellants contend the trial court erred, their briefs “must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex. R. App. P. 38.1(i); see also In re Ernst, No. 04-10-00319-CV, 2011 WL 192654, at *2 (Tex. App.—San Antonio Jan. 12, 2011, no pet.) (mem. op.) (reversing a plaintiff’s judgment under the risk-utility test where plaintiff/appellee only briefed foreseeability). The risk-utility test is utilized by Texas courts (and many others) when analyzing whether a duty was owed. See, e.g., Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 312 (Tex. 1983) (citing Robertson v. LeMaster, 301 S.E.2d 563 (W. Va. 1983); Turner v. Grier, 608 P.2d 356 (Colo. App. 1979)); see also Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705, 714-15 (Tex. 2003); Greater Houston Transp. Co., 801 S.W.2d at 525 (citing Otis Eng’g Corp., 668 S.W.2d at 312); Russell v. Allstate Ins. Co., No. 07-21-00046-CV, 2021 WL 3857604, at *3 (Tex. App.—Amarillo Aug. 30, 2021, no pet. h.) (mem. op.); In re Ernst, 2011 WL 192654, at *2 (citing Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994)); Midwest Emp’rs Cas. Co. ex rel. English v. Harpole, 293 S.W.3d 770, 779 (Tex. App.—San Antonio 2009, no pet.) (“Appellate courts apply a risk-utility balancing test in determining whether a duty exists under common law.”) (citing Read v. Scott Fetzer Co., 990 S.W.2d 732, 736 (Tex. 1998)); Orozco v. Dallas Morning News, Inc., 975 S.W.2d 392, 394 (Tex. App.—Dallas 1998, no pet.); cf. Gonzales v. O’Brien, 305 S.W.3d 186, 189 (Tex. App.—San Antonio 2009, no pet.); Cohen v. Hoose, No. 09-06-297-CV, 2007 WL 3034938, at *2 n.2 (Tex. App.—Beaumont 2007, no pet.) (mem. op.). Under the circumstances, I believe (1) HNMC’s failure to argue the risk-utility test constitutes briefing waiver and (even if it did not constitute briefing waiver) (2) HNMC failed to satisfy its burden on appeal. I believe both of these conclusions are further supported by the fact that Appellees’ brief cited to Greater Houston Transportation Co. (801 S.W.2d at 525) for the proposition that, “[i]n deciding whether a duty exists, the Court must consider several factors” and said citation contains the risk-utility test.5

To the extent HNMC did not waive this issue, the jury nonetheless heard evidence that it would have been “relatively simple” for HNMC to encourage their employees not to use the crosswalk or exit. We are obliged to credit this piece of evidence that supports the judgment because reasonable jurors could have done so. See City of Keller, 168 S.W.3d at 822. Therefore, the “consequences of placing the burden on the defendant” are low, particularly when measured against the known and substantial risk at issue, i.e., “a life safety issue” HNMC characterized as “too serious to ignore for the protection of our patients, visitors, staff, and physicians.” When combined with the foreseen harms herein, I conclude HNMC owed Chan a duty of ordinary care. See, e.g., Nguyen v. SXSW Holdings, Inc., 580 S.W.3d 774, 795 (Tex. App.—Houston [14th Dist.] 2019, pet. denied) (Hassan, J., dissenting) (concluding “there is simply no balance to be had ... [and] Appellees ... had an inescapable duty under the risk-utility test”).

Finally, we are instructed to consider “the views of respected and authoritative restatements and commentators” when determining whether a legal duty exists. See SmithKline Beecham Corp., 903 S.W.2d at 351. Section 291 of the Restatement (Second) of Torts states: “Conduct is not negligent unless the magnitude of the risk involved therein so outweighs its utility as to make the risk unreasonable. Therefore, one relying upon negligence as a cause of action or defense must convince the court and jury that this is the case.” Restatement (Second) of Torts § 291 (Am. Law Inst. 1965). This court first applied section 291’s risk-utility test 49 years ago. See Metal Window Prods. Co. v. Magnusen, 485 S.W.2d 355, 359 (Tex. App.—Houston [14th Dist.] 1972, writ ref’d n.r.e.); accord Hendricks v. Todora, 722 S.W.2d 458, 461 (Tex. App.—Dallas 1986, writ ref’d n.r.e.) (“Thus the occupier’s duty to protect invitees against the reckless or criminal acts of third persons is determined by whether the risk of harm from such conduct is unreasonable under the circumstances. A risk is unreasonable if it is of such magnitude as to outweigh what the law regards as the utility of the alleged negligent act or omission.”) (citing Restatement (Second) of Torts § 291 (Am. Law Inst. 1965)). This precedent has not been briefed, challenged, or overturned. Therefore, it was binding on the panel and I concur in the granting of en banc reconsideration to maintain the uniformity of this court’s precedents. See Tex. R. App. P. 41.2(c).

EN BANC DISSENTING OPINION

Tracy Christopher Chief Justice

Motion for En Banc Reconsideration Granted, Affirmed, and En Banc Majority, Concurring, and Dissenting Opinions filed December 30, 2021.

The panel opinion in this case issued on May 28, 2020, which was over a year ago. The court granted en banc reconsideration in a case that will have no practical extension beyond its own particular set of facts. In doing so, the majority violated Rule 41.2(c) of the Texas Rules of Appellate Procedure.

Our court is designed to work in panels of three justices. When we use our precious resources to turn every case into an en banc one, we delay resolution of the en banc case and all other cases on our docket.

Even if the majority opinion is correct that there was a duty in this case, the duty lies in premises liability. Both the majority opinion and Justice Jewell’s dissenting opinion make that clear. Appellees pled the case as a premises case yet submitted a general negligence issue to the court for its submission of HNMC’s negligence to the jury. Even after counsel for Siemens asked for a premises liability issue, the appellees did not agree.1

A second issue in this case is whether or not this is really invited error and should the result be an affirm. The majority discusses the invited error doctrine, but the majority focuses more on Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010), than on United Scaffolding, Inc. v. Levine, 537 S.W.3d 463 (Tex. 2017), which recognized that a defendant is under no obligation to object to a plaintiff’s incorrect submission. Id. at 481.

On the one hand, at every stage of the case—pretrial, during trial, and post-trial—HNMC claimed that it owed no duty to the appellees, because the accident did not happen on its premises. On the other side of the ledger, HNMC did file a proposed jury charge with the court under a general negligence “landowner” standard. Siemens filed a proposed jury charge with a traditional premises standard for HNMC and Harris County. Appellees filed a proposed general negligence charge as to HNMC.

During the charge conference, counsel for Siemens stated, “I would agree with [plaintiffs’ counsel] that I would prefer to submit the hospital and Harris County under a negligent activity claim as it is in the charge here and as he has proposed. I just don’t think ... that it’s proper.” According to the reporter’s record, counsel then submitted a standard premises instruction for HNMC under Pattern Jury Charge Section 66.4. Counsel for HNMC stated, “I think that the jury charge as a broad form negligence is appropriate, your honor.” Counsel for appellees stated, “Plaintiffs join.” The judge stated, “And your proposed instruction is refused.”

Is this then invited error under Del Lago? Is the statement of HNMC’s counsel—in response to a co-defendant’s request—invited error?

What we know from reading the majority opinion is that the majority concluded that HNMC had a duty of some sort as the owner of a premises abutting a public roadway because HNMC either created the dangerous condition (by its design of the exit stairs, the parking lot, and its installation of a concrete pad to assist in crossing at an abandoned crosswalk) and/or that it knew about, but failed to warn of, an obscured danger on land directly appurtenant to the premises. (I am unclear from the majority opinion exactly what the obscured danger was in crossing a public street near a parking lot exit where a person could clearly see cars exiting the lot.) This is not a general negligence duty and the trial court erred in finding such a duty.

No one has suggested that HNMC has waived its argument that there was no duty at all, even if HNMC invited the jury charge error. Yet the result here is an affirm despite the fact that the duty was improperly submitted. Perhaps a better result would be a remand for a new trial.

I join in Justice Jewell’s dissent with these thoughts.

En banc court consists of Chief Justice Christopher and Justices Wise, Jewell, Bourliot, Zimmerer, Spain, Hassan, Poissant, and Wilson. Justice Poissant authored an En Banc Majority Opinion, which was joined by Justices Bourliot, Zimmerer, Spain, and Hassan. Justice Hassan authored an En Banc Concurring Opinion, which was joined by Justices Bourliot and Spain. Chief Justice Christopher authored an En Banc Dissenting Opinion, which was joined by Justice Wilson. Justice Jewell authored an En Banc Dissenting Opinion, which was joined by Chief Justice Christopher and Justices Wise and Wilson.

EN BANC DISSENTING OPINION

Kevin Jewell Justice

Motion for En Banc Reconsideration Granted, Affirmed, and En Banc Majority, Concurring, and Dissenting Opinions filed December 30, 2021.

A negligent driver struck and killed a pedestrian on a public road. One issue in this appeal is whether the owner of property adjacent to the road owed a duty of ordinary care to the pedestrian under the circumstances of this case. A majority of the court holds that it does, but I disagree. Texas law has never imposed on owners of property adjacent to public roads a common law duty to warn of hazards presented by ordinary road traffic. Although exceptions exist, none applies here as a matter of law. I would reverse the judgment against the property owner and render judgment in its favor.

General Background

At the end of her work shift with HNMC, Leny Chan left the hospital building and walked across Cali Drive toward her car, which was parked in a surface parking lot on the other side of the street. As Chan crossed Cali Drive, a car driven by James Budd exited the parking lot, turned left, and struck Chan, who died from her injuries. Budd was in the scope of his employment with Siemens Medical Solutions USA, Inc. HNMC neither employed nor controlled Budd.

I briefly describe the immediate area. Cali Drive is a public road owned and maintained by Harris County. On the day of the accident in March 2015, there existed two marked pedestrian crosswalks across Cali Drive at each end of the block. Chan, however, was not crossing the street at either of those marked crosswalks when she was hit. The accident occurred at a mid-block location, where we know that the county placed a marked crosswalk and maintained it at least until 2012. By March 2015, however, the painted pavement markings had faded and no crosswalk signs appeared at that location—in contrast to the clear, refreshed markings and signs that stood at crosswalks at each end of the block. The parties agree that the county abandoned the mid-block crosswalk after 2012.

The hospital building is on the west side of Cali Drive. It appears undisputed that HNMC owns the property where the hospital is located, although the evidence indicates that at least a portion of the property abutting Cali Drive near the faded crosswalk markings is burdened by a county right-of-way. On either side of the street, a part of the sidewalk—appellees describe it as a “concrete pad”—abuts the curb at mid-block near the faded crosswalk pavement markings. A witness said that HNMC installed the “concrete pad” in 2011 in the county right-of-way, though the record does not indicate when the county originally installed the crosswalk.

The parking lot, also owned by HNMC, is on the east side of Cali Drive. The parking lot’s perimeter was fenced, with two pedestrian gates at each end of the lot. A single entrance/exit for vehicles was located on Cali Drive at mid-block. Budd left the parking lot in his car and turned onto Cali Drive through this exit. Although the fence has no pedestrian gate near the vehicle entrance/exit, it was common for persons leaving the hospital, including Chan, to cross Cali Drive at mid-block and enter the parking lot by walking through the vehicle entrance/exit rather than crossing at one of the crosswalks at either end of the block and entering the lot through a pedestrian gate.

Analysis

In its second issue, HNMC argues that it owed no legal duty to ensure Chan’s safety while she crossed a public road under the present circumstances. I agree. Because this issue would be dispositive of HNMC’s appeal, I confine my dissent to this point.1 See Tex. R. App. P. 47.1.

As I construe appellees’ live petition, they arguably assert their claims against HNMC as sounding in both premises liability and ordinary negligence. These two theories of recovery are distinct and depend on different elements of proof. Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640, 644 (Tex. 2016). The jury was charged under ordinary negligence principles only. Although HNMC contends in its third issue that the jury charge should have included premises liability elements, I agree with appellees that we need not decide that issue. In the trial court, both sides agreed on the body of law governing the duty questions presented, and in our court both sides emphasize the same law in connection with HNMC’s second issue. Accordingly, I would not reach HNMC’s third issue. With that preliminary observation, I turn to the parties’ duty arguments, beginning with a summary of the jurisprudence both sides invoke.

A. General Principles and Exceptions

The threshold inquiry in any negligence case is whether the defendant owes a legal duty to the plaintiff. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The existence of a duty is generally a question of law for the court, although in some instances it may require the resolution of disputed facts. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991). In my view, the duty question this case presents is properly resolved as a matter of law.

According to appellees, HNMC “owed a duty to pedestrians as the owner of premises abutting a highway.” Because appellees’ duty argument rests on HNMC’s status as a property owner, I reiterate certain fundamental, controlling, and undisputed principles governing liability arising from unreasonable hazards existing on real property. Before the law will impose liability for such hazards, the one sought to be charged must be in a position of possession and control over the unreasonable hazard. See, e.g., Occidental Chem., 478 S.W.3d at 646; City of Denton v. Page, 701 S.W.2d 831, 835 (Tex. 1986) (“It is possession and control which generally must be shown as a prerequisite to liability.”); Rogers v. Tex. Sterling Constr., L.P., No. 14-05-01061-CV, 2007 WL 925784, at *3 (Tex. App.—Houston [14th Dist.] Mar. 29, 2007, no pet.) (mem. op.) (same). Generally speaking, property owners owe a duty to warn of or correct unreasonably dangerous conditions on their property because they control the premises. See Occidental Chem., 478 S.W.3d at 646 (owner’s duty regarding dangerous conditions on its property is rooted in its control over property); La China v. Woodlands Operating Co., 417 S.W.3d 516, 522 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (“Control can be demonstrated by ownership, occupation, management, or possession of property”). But the duty, when it exists, may not extend beyond the limits of the property owner’s control. Grapotte v. Adams, 111 S.W.2d 690, 691 (Tex. 1938); Dixon v. Houston Raceway Park, Inc., 874 S.W.2d 760, 762-63 (Tex. App.—Houston [1st Dist.] 1994, no writ).

One factual scenario that tests the contours and limits of these principles arises when injuries occur off, but close to, property owned or controlled by the party against whom liability is sought. We are here concerned with the not uncommon situation when an accident occurs on a public road adjacent to private property. Texas courts considering the existence and scope of a property owner’s liability in that instance have long arrived at a consensus that property owners are not insurers of the safety of persons traveling on or using adjacent public roads and need not protect those persons against the dangerous acts of third parties. Holland v. Mem’l Hermann Hosp. Sys., 570 S.W.3d 887, 897 (Tex. App.—Houston [1st Dist.] 2018, no pet.); Cabrera v. Spring Ho Festival, Inc., No. 03-09-00384-CV, 2010 WL 3271729, at *3 (Tex. App.—Austin Aug. 20, 2010, no pet.) (mem. op.); Pride ex rel. Pride v. Collin Park Marina, Inc., No. 05-97-01410-CV, 2001 WL 755907, at *6 (Tex. App.—Dallas July 6, 2001, pet. denied) (not designated for publication); Hirabayashi v. N. Main Bar-B-Q, Inc., 977 S.W.2d 704, 706 (Tex. App.—Fort Worth 1998, pet. denied); Tkatch v. Grand Pkwy. I & II Acquisition Grp., Ltd., No. 01-96-01355-CV, 1997 WL 694919, at *4 (Tex. App.—Houston [1st Dist.] Oct. 30, 1997, no pet.) (not designated for publication); Guereque v. Thompson, 953 S.W.2d 458, 466 (Tex. App.—El Paso 1997, writ denied); Dixon, 874 S.W.2d at 762-63; Naumann v. Windsor Gypsum, Inc., 749 S.W.2d 189, 190, 192 (Tex. App.—San Antonio 1988, writ denied); Portillo v. Hous. Auth., 652 S.W.2d 568, 569 (Tex. App.—El Paso 1983, no writ). The rule applies to pedestrians who, like Chan, exit the owner’s property and suffer injury on an adjacent public road. E.g., Hirabayashi, 977 S.W.2d at 706-08; Tkatch, 1997 WL 694919, at *2-4; Guereque, 953 S.W.2d at 466; Dixon, 874 S.W.2d at 762-63 (property owner has no duty to ensure the safety of persons who leave owner’s property and suffer injury on adjacent highways). This understanding derives largely from the core concept that property owner liability for an unreasonable hazard cannot exist without control over the hazard or its location. See Barefield v. City of Houston, 846 S.W.2d 399, 403 (Tex. App.—Houston [14th Dist.] 1992, writ denied) (“Liability follows control.”). Absent unique circumstances not presented here, private property owners lack the right to control hazards, or travelers, on public roads, as that is traditionally the government’s domain. See, e.g., Garrett v. Houston Raceway Park, Inc., No. 14-94-00929-CV, 1996 WL 354743, at *2 (Tex. App.—Houston [14th Dist.] June 27, 1996, no writ) (not designated for publication).

It is undisputed that Chan was not on HNMC’s property when Budd’s vehicle struck and killed her and that neither Budd nor Chan were under HNMC’s control. Chan was walking across a public road owned and maintained by Harris County. Accordingly, the outcome of the dispute at hand should be consistent with the cases I have noted.

Appellees do not challenge the above authority, or contend it is wrong or based on faulty reasoning.2 They say one or more exceptions apply. Texas courts have recognized four exceptions to the general rule just discussed that a premises owner has no duty to prevent accidents or warn of hazards on adjacent property that it neither owns nor controls. E.g., Holland, 570 S.W.3d at 897; Hirabayashi, 977 S.W.2d at 707. First, a party assumes a duty of care if it agrees or contracts either expressly or impliedly to make safe a known, dangerous condition of real property. See Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 54 (Tex. 1997). Second, a person who has created an unreasonably dangerous condition may be liable even though not in control of the premises at the time of injury. City of Denton, 701 S.W.2d at 835; Strakos v. Gehring, 360 S.W.2d 787, 795 (Tex. 1962); see also Reinicke v. Aeroground, Inc., 167 S.W.3d 385, 388 (Tex. App.—Houston [14th Dist.] 2005, pet. denied). Third, one who exercises actual control over adjacent property has responsibility for the portion under its actual control. See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (Tex. 1993). Finally, an owner or occupier can be liable if it knows about, but fails to warn of, an obscured danger on land directly appurtenant to the owner’s or occupier’s land. See Renfro Drug Co. v. Lewis, 235 S.W.2d 609, 615 (Tex. 1950); Holland, 570 S.W.3d at 897; Hirabayashi, 977 S.W.2d at 707. In the trial court and in this court, both sides have focused on this body of law and construed it in support of their respective positions. Despite the parties’ efforts, however, a substantive discussion of the key cases applicable to our factual scenario is absent from the majority opinion.

Whether HNMC owed a duty under one or more of these exceptions is a legal question for the court based on the particular facts of the case. Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926 S.W.2d 287, 289 (Tex. 1996). Having submitted a negligence question to the jury inquiring as to HNMC’s conduct, the trial court necessarily concluded HNMC owed a duty to Chan, although the specific basis for the duty is not stated in the record. Appellees brief all four exceptions. My colleagues in the majority do not address any directly but appear to consider two of them—the creation of an unreasonable hazard and a failure to warn of an obscured danger—in the context of a general duty balancing test. Although I believe none of the exceptions applies, I limit my dissent only to those the majority references.

B. Discussion of the Exceptions

1. HNMC did not create the danger to pedestrians on Cali Drive.

I begin with the exception appellees address first: the proposition that HNMC created an unreasonable risk of harm that caused Chan’s death. See, e.g., City of Denton, 701 S.W.2d at 835; Holland, 570 S.W.3d at 897-98; Hirabayashi, 977 S.W.2d at 707. A study of pertinent decisions helpfully illustrates the circumstances justifying liability against a premises owner when a person injured on a public road alleges the adjacent property owner created an unreasonable hazard that caused the injury. By way of example, a property owner created an unreasonably dangerous condition giving rise to a duty when it demolished a building on its property, causing a wall to fall onto a city street, Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910-11 (Tex. 1981); when smoke from a grass fire drifted across an adjacent road, Atchison v. Tex. & Pac. Ry. Co., 186 S.W.2d 228, 229-30 (Tex. 1945); and when water from a manufacturing plant was released from cooling towers and blew onto a highway nearby, injuring a motorist, Skelly Oil Co. v. Johnston, 151 S.W.2d 863, 865 (Tex. App.—Amarillo 1941, writ ref’d). Similarly, our court has acknowledged the existence of a duty when a nursing home patient with a known tendency to wander onto a highway darted onto the road and knocked down a motorcyclist. Golden Villa Nursing Home, Inc. v. Smith, 674 S.W.2d 343, 350 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.).

Intermediate appellate court decisions considering property owners’ duties to persons using adjacent public roads often refer to Kraus and Atchison.3 The supreme court stated in Kraus, “[t]he owner or occupant of premises abutting a highway has a duty to exercise reasonable care not to jeopardize or endanger the safety of persons using the highway as a means of passage or travel” and is “liable for any injury that proximately results from his negligence.” Kraus, 616 S.W.2d at 910-11 (citing Atchison, 186 S.W.2d at 229-30). The supreme court applied an analogous duty principle to independent contractors in Strakos, when the court said, “[t]he law places a duty to warn of dangerous conditions on a public highway upon one who creates such conditions or who is in control of the area and permits such conditions to persist.” Strakos, 360 S.W.2d at 795.4 Still earlier, the supreme court explained in Buchanan:

We think it may also be said that if one by his own acts, although without negligence on his part, creates a dangerous situation in or along a public way and it reasonably appears that another in the lawful use of such way in the exercise of ordinary care for his own safety may be injured by the dangerous situation so created, the one creating the same must give warning of the danger or be responsible for the consequences. To illustrate: One who in the exercise of a lawful right, and without negligence on his part, makes an excavation across a street or sidewalk or on his premises in close proximity to a public way, or parks a vehicle in a road, or otherwise obstructs the road with a foreign substance, is bound to give warning of the danger created thereby.

Buchanan v. Rose, 159 S.W.2d 109, 110 (Tex. 1942).

The Kraus court examined whether a property owner owed a duty to those using an adjacent city street when the owner caused part of its building to fall onto the street. Similarly, the Strakos, Atchison, and Buchanan courts considered duty questions when a property owner or person exercising control over a public road created an unreasonably dangerous hazard on the road. Given the circumstances in each case, I for one find it unsurprising that, over the years, intermediate appellate courts have generally agreed that Kraus is limited to instances when the property owner creates an unreasonable hazard by negligently releasing upon the road an “agency that becomes dangerous by its very nature” once upon the highway. Hyde, 337 S.W.3d at 437 n.13; Cabrera, 2010 WL 3271729, at *3; Gonzales v. Trinity Indus., Inc., 7 S.W.3d 303, 306 (Tex. App.—Houston [1st Dist.] 1999, pet. denied); Huebotter v. Diamond Shamrock Refining Co., No. 04-99-00243-CV, 1999 WL 1244422, at *2 (Tex. App.—San Antonio Dec. 22, 1999, no pet.) (not designated for publication); Hirabayashi, 977 S.W.2d at 707; Tkatch, 1997 WL 694919, at *2; Dixon, 874 S.W.2d at 763; Naumann, 749 S.W.2d at 191; see also Raburn v. KJI Bluechip Invs., 50 S.W.3d 699, 702 (Tex. App.—Fort Worth 2001, no pet.). In Kraus, Strakos, and Atchison, the supreme court found a duty to exist when the property owner or other person in control of the area created an unreasonable risk by introducing some new and dangerous agency or influence onto the public road that was distinct and separate from risks posed by ordinary use of the road.5

That said, I am not prepared to agree that the scope of a premises owner’s duty is as constrained as Naumann and like cases say, because some courts, including ours and the First Court of Appeals, have held that a property owner may owe a duty to passing users of public roads when the owners have created an unreasonable hazard by means other than releasing some independent agency onto the road itself. See McKnight v. Calvert, 539 S.W.3d 447, 458 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Zapata v. Kariyaparambil, No. 14-96-00901-CV, 1997 WL 566222, at *3 (Tex. App.—Houston [14th Dist.] Sept. 11, 1997, no pet.) (not designated for publication); Hamrick v. Kansas City S. Ry. Co., 718 S.W.2d 916, 918 (Tex. App.—Beaumont 1986, writ ref’d n.r.e.). In those instances, courts found a duty existed because the owners negligently allowed vegetation they controlled to physically obscure stop signs or traffic intersections. McKnight, 539 S.W.3d at 458; Zapata, 1997 WL 566222, at *3; Hamrick, 718 S.W.2d at 918.

Distinguishing Kraus along the lines I have explained, several courts have held that property owners adjacent to public roads did not create hazards sufficient to impose a duty to those injured on the road. Four are particularly notable because they involved injuries on public roads to persons entering or exiting adjacent property; and still another compares favorably because the claimant in that case was in an accident with a vehicle exiting the property.6

The Austin Court of Appeals addressed allegations of negligence similar to those asserted here in Cabrera. There, a festival attendee left the festival grounds to cross an adjacent street to reach the lot where she was to be picked up. See Cabrera, 2010 WL 3271729, at *1. As she crossed the street, she was struck and killed by a vehicle. Id. Her parents sued the festival operator, alleging that the operator was negligent “in failing to choose a safe location for the festival, failing to provide adequate procedures for the safe ingress and egress of festival attendees, [and] failing to provide adequate on-site parking.” Id. The operator moved for summary judgment, arguing that it owed the deceased no duty at the time of the accident. Id. The court of appeals agreed. Because the accident did not occur on the festival premises, and because the festival operator had no right to control traffic or otherwise occupy the roadway, the court held that “under the general rule of premises liability espoused by Texas courts,” the festival operator owed no duty to ensure the attendee’s safety as she crossed the street. Id. at *3.

In Hirabayashi, a patron parked across the street from a restaurant, in a lot not owned by the restaurant. Hirabayashi, 977 S.W.2d at 705. Upon leaving the restaurant to go back to his car, the patron crossed the middle of the street, rather than using “the crosswalk farther down the block.” Id. at 706. As the patron crossed, he was hit by a car and sustained severe injuries. The patron sued the restaurant, alleging negligence for operating a business without adequate parking, creating an unreasonable risk of harm by not providing for a crosswalk or light to be placed in the street, and—like appellees allege here—failing to warn of the dangerous nature of the roadway in front of the business. Id. The restaurant argued that it owed no duty to someone crossing the middle of a busy street, and the court of appeals agreed. Id. at 706-07. The court held that none of the four “assumed duty” exceptions applied, including because the restaurant did not “create a dangerous condition in the roadway.” Id. at 707. The court reasoned, “[p]atrons who wish to cross the roadway for their own purposes can avail themselves of the crosswalk down the road, or at least make sure no cars are coming if they cross the middle of a busy road.” Id.

In another case, two drivers, Tkatch and Wheeler, collided at a stop sign, killing Tkatch. Tkatch, 1997 WL 694919, at *1. Wheeler had approached the stop sign by using a “well-known short-cut” across an adjacent landowner’s property. Id. The deceased’s survivors sued the landowner, alleging negligence for: (1) failing to adequately inspect its property to discover that motorists were using the short-cut; (2) failing to use reasonable means to prevent or deter motorists from using the short-cut by placing appropriate signs, barricades, fences, or gates; (3) permitting motorists to use its property as a short-cut; (4) maintaining a condition (i.e. a dirt road) on its premises that was dangerous to the safety of passing motorists; and (5) failing to warn and/or remedy the dangerous condition on its premises. Id. at *2. The landowner argued that it owed Tkatch no duty to guard against the acts of third-party motorists. The court of appeals agreed, even though the landowner arguably had the right and the means to control Wheeler by denying him access to the use of its premises and access through the dead-end to the highway intersection where the collision occurred. Id. at *4 & n.5 (noting that the premises owners in Naumann, 749 S.W.2d at 192, and Lawson, 888 S.W.2d at 35, dictated the means by which truck drivers could exit their premises onto the abutting highway and no duty was found in spite of this). The court also rejected the survivors’ argument that the landowner had a further duty to take affirmative action to control or avoid increasing the danger of the highway intersection, which the owner partially created by allowing motorists to access the highway intersection via its property: “the dangerous situation was not created by [the owner] permitting access to the highway intersection via its property,” but rather “the real hazard is the danger of a motorist failing to yield the right-of-way to highway traffic at a stop sign.” Id. at *4.

In Guereque, a young boy left the trailer park where he lived, crawled through a large gap in a fence on the property, and drowned in a canal abutting the property. Guereque, 953 S.W.2d at 460. The boy’s parents sued the trailer park, arguing that the owner was negligent in, among other things, creating a dangerous condition due to the lack of proper fencing on the premises and failing to warn of the dangerous condition created by the lack of proper fencing. Id. The parents also alleged that the trailer park was grossly negligent because it knew of the dangerous condition of the fence and failed or refused to remedy the fence in conscious indifference to the safety of the residents. Id. The court of appeals characterized the dispositive issue as whether the trailer park “owed a duty of care either to prevent injuries on adjacent property on which an open and obvious hazard existed, or to provide warnings that a hazard existed on adjoining property.” Id. at 466. The court concluded that no such duty existed, including because the trailer park did not create the dangerous condition leading to the boy’s death: “In order for the ‘dangerous condition’ exception to apply, [the parents] would have to demonstrate either that [the trailer park] actually created the instrumentality that caused injury or death, or that [the trailer park] controlled the property where the danger existed and failed to provide warnings. The fence did not cause Jorge’s death; the child drowned in the canal some sixty feet beyond the fence, on land owned by the El Paso Electric Company.” Id. at 468 (internal citations omitted). Because the trailer park did not create the danger presented by the canal and did not control the property through which the canal ran, the “create the danger” exception did not apply. Id.

In Naumann, the driver of a tractor-trailer left a plant, turned onto the highway, and collided with another vehicle. See Naumann, 749 S.W.2d at 190. The tractor-trailer’s driver was not under the plant owner’s control, just as Budd was not under HNMC’s control here. The vehicle’s occupants sued the plant owner, alleging that the owner “design[ed] its plant in a manner that forces tractor-trailers exiting its property to block both lanes of [the highway] ... thereby creating a hazard to motorists.” Id. The plant owner moved for summary judgment, arguing that it owed no duty to control the traffic on the public highway abutting its property. Id. The court of appeals agreed. Despite the plant owner’s knowledge of truck drivers’ propensity to block both lanes when turning onto the highway, the court concluded that the plant owner “had every right to expect [drivers] to exercise due care and to enter the highway safely.” Id. at 192. Therefore, the court held that the plant owner did not owe a duty to the injured motorists as a matter of law. Id.

Based on all the above authority, I conclude and would hold that owners of private property adjacent to public roads have no duty to warn persons entering or exiting the premises of risks inherent in public roads, as those risks are obvious and can reasonably be anticipated. Further, I would say this rule applies unless, as in Kraus and like cases, the property owner has created an unreasonable risk of harm that introduces a dangerous new or unappreciable risk not otherwise presented by ordinary road traffic. Because HNMC created no such risk, it did not owe the duty appellees and the majority contend it owed. There is no allegation or evidence that HNMC released or introduced a dangerous agency into Cali Drive. Nor is there evidence that HNMC negligently allowed some condition on its property and under its control to physically obscure any traffic sign, signal, or markings.

Until today, no Texas court has extended premises owners’ duties to public road travelers beyond the limits I have just described. The majority’s effort to expand potential liability lies in no small part on its mischaracterization of the “condition” at issue.

Appellees argue that HNMC created a danger to pedestrians crossing Cali Drive in the following ways:

• pedestrians parking in the east parking lot must cross Cali Drive;

• its operation (along with its refusal to act on government recommended remedies) concentrates, rather than separates, vehicles and pedestrians into the same area;

• pedestrians who use the northeast building exit are funneled into crossing Cali Drive at an unsafe mid-block location; and

• pedestrians are exposed to an increased risk from drivers turning left who are forced to keep their attention away from pedestrians because of the vision-obstructing signs.

My colleagues in the majority generally accept appellees’ view, specifically emphasizing the “design” of HNMC’s premises on both sides of the street. As appellees and the justices in the majority contend, HNMC’s duty arises from the design of its premises that encouraged and allowed pedestrians to cross the street in a crosswalk when the crosswalk was not a safe path from the exit of HNMC’s building to HNMC’s parking lot. Thus, the core feature of the “risk” as described by the majority opinion is the property’s “design.” This was also the crux of appellees’ duty theory in the trial court.7 Appellees cited no authority supporting their description of the dangerous condition, and the majority opinion cites none either. The majority directs us to no case holding, involving, or discussing whether, why, or how the “design” of private property abutting a public road creates an unreasonably dangerous condition when the claimant is injured on the road and not on the private property.

The “design” of HNMC’s property is not the danger here. The unreasonable hazard in this case is the risk posed to pedestrians by inattentive drivers. See, e.g., Duran, 2000 WL 768640, at *4 (darkness on street was the dangerous condition and property owner did not create it); Huebotter, 1999 WL 1244422, at *3 (property owner did not create dangerous condition that caused the accident, even though it was aware of certain traffic patterns about which the plaintiff complained); Tkatch, 1997 WL 694919, at *4 (the dangerous situation was not created by owner permitting access to the highway via its property; the “real hazard is the danger of a motorist failing to yield the right-of-way to highway traffic at a stop sign”); Naumann, 749 S.W.2d at 192 (plant owner not responsible for “dangerous situation” that existed every time a truck made a right turn in the adjacent roadway); see also Guereque, 953 S.W.2d at 468 (fence on property did not cause death; hazardous condition was the canal where child drowned). HNMC did not create the risk of inattentive drivers generally, which exists anytime someone crosses a street, whether at a marked crosswalk or elsewhere.8

The majority’s mischaracterization of the hazard distorts Texas’s traditional approach to identifying unreasonably dangerous “conditions.” When referencing a “condition” of a premises, we speak of the “state of being” of the property itself. 4Front Engineered Sols., Inc. v. Rosales, 505 S.W.3d 905, 912 (Tex. 2016). To be clear, Chan did not trip on the “concrete pad” or any part of the sidewalk and fall into the street. There is no allegation or evidence that any access point to the street abutting HNMC’s property is broken, damaged, or defective. The crux of appellees’ allegations is that HNMC failed to do things to its property to protect pedestrians from drivers on Cali Drive. As they contend, HNMC owed a duty because it dictated the means by which pedestrians entered Cali Drive by “funneling” them to cross the street at an “unsafe mid-block location.” The “design” of HNMC’s property, therefore, purportedly is dangerous only because Cali Drive is alleged to be dangerous; and the reason Cali Drive is alleged to be dangerous is because of the risks posed by traffic, and for no other reason. If there were no traffic on Cali Drive, nothing about the “design” of HNMC’s property, including the “concrete pad,” could possibly pose any danger to pedestrians leaving the property to cross the street. As indicated from Kraus, the relevant duty requires a possessor of land to avoid allowing a condition of his land to interfere unreasonably with the public’s right to use a roadway. See Kraus, 616 S.W.2d at 910-11; see also McKnight, 539 S.W.3d at 457. Nothing about the condition of HNMC’s property was proven to interfere unreasonably with Chan’s and Budd’s right to use Cali Drive.

In my view, the fact that pedestrians must cross Cali Drive to reach HNMC’s parking lot does not present an unreasonably hazardous condition either in the street or on HNMC’s property. See Hirabayashi, 977 S.W.2d at 707-08. Further, I must disagree with appellees’ premise that pedestrians are forced to cross at mid-block. As the evidence established conclusively, HNMC in fact did not mandate where pedestrians crossed the street, and pedestrians were not compelled to cross Cali Drive at a mid-block location. Pedestrians who chose to park in the lot across the street could use one of at least two marked crosswalks to cross Cali Drive at each end of the block, where pedestrian gates in the parking lot fence awaited. See id. at 707. Instead, Chan and others chose, voluntarily, to cross at mid-block and enter the parking lot through an entrance designed only for vehicles.

The presence of the “concrete pad,” along with other “design” features, we are led to believe, fails to provide for safe ingress and egress across a public road and, because HNMC controlled those features on its property, it created the hazard. Several cases I have discussed expressly rejected just the sort of duty arguments the majority constructs, and no court (until now) has accepted them. Naumann, for instance, disagreed that a property owner has a duty to “design” premises in such a way as to protect users of adjacent public roads from the ordinary risks inherent in merely being on the road, including simply crossing a street. See Naumann, 749 S.W.2d at 191. “We must conclude that a landowner’s duty to exercise reasonable care not to endanger the safety of persons on an abutting highway does not create an obligation to guard passing motorists against the possible negligence of an independent contractor over whom the landowner exercises no control and whose competence to perform his duties the landowner has no reason to doubt.” Id. at 191-92. Naumann rejected the claimant’s “design” of the premises theory, even though the property owner in that case “knew of the propensity of the truck drivers to block both lanes when turning east on F.M. 78.” Id. at 192. The majority neither explains Naumann nor contends that case is wrong, despite relying on a negligent design theory as a principal basis of the duty it recognizes.

Intermediate courts in Austin and El Paso, and our colleagues on the First Court across the hallway, have held consistently with Naumann. The Cabrera court rejected a duty to “provide ... for safe ingress and egress” from the owner’s property into a public street. Cabrera, 2010 WL 3271729, at *1. In Tkatch, the First Court of Appeals held a property owner had no duty to avoid “increasing the danger” of a highway intersection, which the owner “partially created.” Tkatch, 1997 WL 694919, at *4 (noting that Naumann determined no duty existed even when property owner dictated means by which truck drivers could exit its premises onto the adjacent street). In Guereque, there was no duty to “provide warnings that a hazard existed on adjoining property.” Guereque, 953 S.W.2d at 466. I agree with these decisions. This case simply does not present any unreasonably dangerous “state of being” on HNMC’s property that was the cause or instrumentality of Chan’s injury and of which HNMC was required to warn or make safe. See 4Front, 505 S.W.3d at 912.

In sum, I would hold that any duty by HNMC to warn Chan of the dangers inherent in walking across a public road cannot rest on the proposition that HNMC created an unreasonably dangerous condition. My view aligns with the overwhelming if not conclusive weight of authority on the subject. While the Supreme Court of Texas was not asked to review every intermediate appellate court decision I have mentioned, it declined review in Pride (2001); Gonzales (2000); Duran (2000); Hirabayashi (1998); Guereque (1998); Naumann (1988); Northwest Mall (1985); and Golden Villa (1984). Perhaps the time has come for the supreme court to grant review. If Texas law is in truth different than the many cases I have examined construed it to be, then the supreme court should clearly say so and clarify when a premises owner may owe a duty to users of an adjacent public road by creating an unreasonably dangerous condition.

2. HNMC did not fail to warn of an obscured danger on Cali Drive.

The majority also tacitly incorporates into its duty discussion another exception cited by appellees: that HNMC owed a duty to warn of an “obscured danger.” See Holland, 570 S.W.3d at 898 (fourth exception “has been applied to extend the duty to keep a premises safe from obscured dangers present near the entries and exits of the premises”). This line of cases does not support the majority’s holding either. In Renfro Drug, a patron fell and was injured when exiting a parking garage through a door that opened into a retail space directly over a set of steps not level with the adjacent garage floor. See Renfro Drug, 235 S.W.2d at 614. The evidence showed that the heavy solid metal door masked from patrons the difference in floor levels and that the door opened inward over the step, preventing patrons from seeing the step-down in time to observe and avoid the danger. Id. at 620. The supreme court held that the retail tenant assumed a duty to keep the entrance safe from the hidden dangerous condition. See id. at 617. Another court has held that a parking lot owner owed a duty to erect barriers or to warn invitees of a creek between the lot and a nearby theater; the creek was obscured by the manner in which the lot attendant parked the cars, so that the rear of the cars extended out over the creek bed. See Parking, Inc. v. Dalrymple, 375 S.W.2d 758, 762-63 (Tex. App.—San Antonio 1964, no writ).

Here, in contrast, there was no obscured danger of which HNMC knew and about which HNMC should have warned pedestrians. “The obvious presence of cars passing on a roadway is not an ‘obscured’ danger.” Hirabayashi, 977 S.W.2d at 707-08; see also Holland, 570 S.W.3d at 898 (“A crack in the pavement on a commonly-used roadway, as alleged by Holland, is not the type of obscured danger contemplated by this exception.”); Oakbend Med. Ctr. v. Martinez, 515 S.W.3d 536, 547 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (exception could not apply when there was no pleading or summary judgment evidence that train tracks in front of property owner’s entrance were obscured); Vidrine v. Ctr. for the Performing Arts at the Woodlands, No. 09-12-00378-CV, 2013 WL 5302654, at *9 (Tex. App.—Beaumont Sept. 19, 2013, pet. denied) (mem. op.) (“We conclude the inadequately lit steps do not present the type of ‘obscured danger’ to which this narrow exception to the general rule has been applied.”); Duran, 2000 WL 768640, at *5 (“[T]he danger of crossing a busy roadway, particularly in the dark, is a commonly understood danger.”). There is no evidence that Chan’s ability to observe cars either in the roadway or turning out of HNMC’s parking lot was obscured. In fact, another nurse who was crossing the street with Chan at the time of the accident agreed at trial that there was nothing that “in any way would have blocked or obscured [her] view of a vehicle leaving [the parking lot].” HNMC has no duty to warn invitees entering and exiting its property of the known danger of crossing the roadway. See Hirabayashi, 977 S.W.2d at 707-08.

According to appellees, the “obscured” danger was not traffic generally, but rather “that drivers had to contend with hospital signage that completely obstructed their view to the north, and that such drivers would be focusing their attention northward, scanning for oncoming vehicles, rather than southward where pedestrians were crossing.” I disagree. The alleged “vision-obstructing signs” are irrelevant to the facts of this case. When Budd exited the parking lot, Chan was crossing Cali Drive to Budd’s left. Budd turned left and hit her. The signs on which appellees focus were to Budd’s right. There existed no visual obstruction to his left, a fact he readily admitted. At trial, Budd agreed that he had “a completely clear view” to the left.

Moreover, appellees’ argument, which the majority opinion erroneously accepts, assumes that drivers will, after looking northward to the right, fail to check the surroundings to their left before making a left turn. In other words, appellees contend that drivers will be looking right when turning left, and that the hospital is responsible for guarding against such negligent behavior. But HNMC had every right to expect drivers leaving its parking lot and pedestrians crossing Cali Drive to exercise due care while on the roadway. See, e.g., Naumann, 749 S.W.2d at 192 (“An owner or occupier of property is not an insurer of the safety of travelers on an adjacent highway and is not required to provide against the acts of third persons.”). There is no legal requirement that a person anticipate negligent or unlawful conduct on the part of another. See DeWinne v. Allen, 277 S.W.2d 95, 98 (Tex. 1955); Lawson, 888 S.W.2d at 35; see also Williams v. Hill, 496 S.W.2d 748, 751 (Tex. App.—Tyler 1973, writ ref’d n.r.e.).

For these reasons, I would hold that the “obscured danger” exception does not apply. A property owner in HNMC’s position has no duty to warn of dangers “ ‘within the ordinary knowledge common to the community.’ ” Hirabayashi, 977 S.W.2d at 707 (quoting Joseph E. Seagram & Sons, Inc. v. McGuire, 814 S.W.2d 385, 388 (Tex. 1991)); see also Duran, 2000 WL 768640, at *5. As that principle is applied to the present circumstances, I can safely say that “[i]n Texas, a land owner or occupier does not owe a duty to protect motorists from persons entering or exiting the premises.” Duran, 2000 WL 768640, at *4 (citing Dixon, 874 S.W.2d at 763); see also Naumann, 749 S.W.2d at 191-92. The converse is also true: a landowner or occupier does not owe a duty to protect persons entering or exiting the premises from motorists on a public road. E.g., Hirabayashi, 977 S.W.2d at 707-08; Dixon, 874 S.W.2d at 763.

C. Foreseeability Does Not Support a Duty

Finally, appellees contend that, regardless of the general rule that a premises owner owes no duty to protect users of an adjacent public roadway, and further assuming none of the four exceptions apply, HNMC nevertheless owed a duty to pedestrians under Texas’s multi-factor balancing test for determining whether to recognize a tort duty. Specifically, appellees contend HNMC owed a duty “based on the foreseeability of dangers it knew from previous incidents.”

Whether to impose a common-law negligence duty involves balancing several interrelated factors. Golden Spread Council, 926 S.W.2d at 289-90; Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990); Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex. 1983). A court must weigh the risk, foreseeability, and likelihood of injury against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant. Golden Spread Council, 926 S.W.2d at 289-90. Also among the relevant considerations is whether one party had superior knowledge of the risk or a right to control the actor who caused the harm. Id.; Graff, 858 S.W.2d at 920.

The majority’s reliance on this general balancing test as the basis for its duty holding is rife with procedural and substantive concerns.

1. Procedural problems

My colleagues in the majority fault HNMC for failing to brief or argue either in our court or in the trial court three factors relevant to the balancing test the majority applies: the social utility of the actor’s conduct; the magnitude of the burden of guarding against the injury; and the consequences of placing the burden on the defendant. Yet the majority opinion fails to mention that appellees not once invoked this balancing test in the trial court. Thus, why HNMC would be required or expected to address those issues in its opening brief remains unexplained. Traditionally, we do not affirm judgments based on arguments not preserved in the trial court,9 but the majority apparently finds that long-standing practice inconvenient here and affirms the judgment based on a tort duty balancing test that appellees did not raise until their appellees’ brief in this court. Even in that document, appellees addressed only the foreseeability factor and none other. Appellees did not argue in the trial court or in this court why the other factors supported a duty despite the many decisions I have discussed that expressly reject a duty in comparable circumstances. The majority “refuse[s] to consider” arguments on certain factors HNMC did not present in its appellant’s brief, but the majority has no difficulty construing factors in appellees’ favor even though they too did not present argument on those factors in the trial court. The majority inexplicably faults HNMC for not briefing the factors of a test it was not on notice of a need to brief; yet the majority implicitly relieves appellees of any burden to have first argued in the trial court all the factors of a balancing test they belatedly say applies.

After submission of this case to the original panel, this court’s majority opinion did not comment on preservation or waiver issues because the proper disposition on the merits was clear. But now that a majority of the en banc court has criticized one party for failing to present argument on the balancing test at the appropriate time, we should apply preservation and waiver doctrines evenhandedly. We should not affirm the trial court’s judgment based on legal arguments appellees did not timely present to the trial court and to which HNMC had no opportunity to respond in that court. See, e.g., Sullivan, 618 S.W.3d at 930; Drennen, 367 S.W.3d at 300.

A related concern is the majority’s references to the lack of evidence pertaining to the factors. If it is true that the record is deficient in that regard, I fail to see how that reality supports the imposition of a duty. Appellees are the parties relying on the general balancing test to establish a duty; thus, they bore the burden of proof in the trial court. If the record contains no evidence, then appellees bear the consequence. Besides, as to most factors, whether or not they support a duty does not turn on the evidence, as the question is essentially one of law. See Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 504 (Tex. 2017) (“The policy components of the factors—including the nature of the covered risks and general foreseeability—are policy issues for the court to consider as a matter of law.”). One reason for this is because “the factual situation presented must be evaluated in the broader context of similarly situated actors.” Id. Thus, case-specific facts generally are pertinent only to the risk and foreseeability factors, and then they are appropriate for jury resolution only if disputed. See id.

2. Substantive problems

I cited above many cases discussing whether and in what circumstances premises owners owe a duty to protect users of adjacent public roads. The parties brought the bulk of those cases to our attention as well. Had the en banc court’s opinion addressed them fully, those justices in the majority would have seen that only a handful even mention the general duty balancing test and, of those, none conclude that its application supports the imposition of a duty. Pride, 2001 WL 755907, at *6; Gonzales, 7 S.W.3d at 306-08; Tkatch, 1997 WL 694919, at *3-4; Garrett, 1996 WL 354743, at *2; Lawson, 888 S.W.2d at 34-35.10

Nothing about this case compels a different conclusion. Concerning foreseeability of the risk—the only factor appellees addressed in their brief—I conclude any foreseeability of the risk by HNMC is not enough to impose a duty. HNMC was concerned about pedestrian safety along Cali Drive, at least since 2009: the hospital wrote to Harris County several times, alerting the county of vehicle-pedestrian accidents and seeking the county’s help in addressing the hospital’s safety concerns. This was appropriate because the county controls the road. Further, I disagree with the majority that the foreseeability factor necessarily weighs in appellees’ favor. The record shows at most three prior similar incidents, each of which occurred three to seven years before Chan’s accident. But there is no evidence that Budd was involved in any of them, that HNMC controlled Budd, or that HNMC had reason to doubt Budd’s competence as a driver. A property owner’s simple awareness of a potential traffic danger it did not create and does not control cannot alone support a duty. See Buchanan, 159 S.W.2d at 110; Huebotter, 1999 WL 1244422, at *3 (knowledge of traffic patterns not sufficient to impose duty); Gonzales, 7 S.W.3d at 307 (prior road accidents in general not sufficient to impose duty). That harm is foreseeable only in the general sense that traffic accidents can happen. The majority’s approach has erroneously made premises owners into insurers of the safety of all patrons that may come and go from their property by crossing a public street.

Moreover, although foreseeability is a dominant factor, and even presuming appellees are right that Chan’s injury should have been foreseeable to HNMC, foreseeability alone is not sufficient to justify the imposition of a duty. See, e.g., Golden Spread Council, 926 S.W.2d at 290-91; Bird v. W.C.W., 868 S.W.2d 767, 769 (Tex. 1994); Naumann, 749 S.W.2d at 192 (rejecting imposition of duty on landowner to protect passing motorists, even though landowner knew of danger posed by premises exit).

Although the degree of harm in the event of injury can be high, as this case unfortunately illustrates, few if any of the other factors support imposing a duty. The evidence does not show that the risk and likelihood of injury were great. Again, the majority cites no more than three incidents occurring in the seven years prior to Chan’s accident. The potential of an incident such as this is possible, but random, and it was not shown to be so common as to be reasonably probable. While it may be possible that a pedestrian crossing at midblock may be involved in an accident with an automobile leaving the parking lot, the evidence does not show that eventuality to be likely or frequent.

As to the utility, burden, and consequences of imposing a duty on the defendant, creating a duty to protect pedestrians from dangers inherent in crossing a street would impose a vast and substantial burden on millions of Texas property owners, which is not easily or reasonably justified. See, e.g., Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 411 (Tex. 2009) (declining to impose a duty on employers to protect the public from fatigued employees: “Expecting employers to monitor or control such factors would be unreasonable, especially when the risk of driving while fatigued is within the common knowledge of all drivers, and employees generally know not to drive when they are too tired.”). The responsibility of maintaining the safety of, or controlling traffic on, public roadways generally lies with the government. See Garrett, 1996 WL 354743, at *2; Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 226-27 (Tex. App.—Houston [14th Dist.] 1994, writ denied).

Texas has never burdened private property owners to discern and advise pedestrians where, in the owners’ estimation, general traffic may or may not make it “unsafe” to cross a public road near the owners’ property.11 Nor is it property owners’ duty to warn the general public of ordinary traffic risks on adjacent public roads. Such a duty could exist only when one of the above-discussed exceptions applies. Under the majority’s reasoning, however, every property owner is now duty-bound to warn jaywalkers coming or going that it is unsafe to jaywalk. But the law does not require a person to anticipate negligent or unlawful conduct by another. DeWinne v. Allen, 277 S.W.2d 95, 98 (Tex. 1955); Gonzales, 7 S.W.3d at 307; Lawson, 888 S.W.2d at 35; Smith v. Doyle, No. A14-93-0316-CV, 1994 WL 88855, at *4 (Tex. App.—Houston [14th Dist.] Mar. 10, 1994, no writ) (not designated for publication). HNMC had every right to expect that motorists such as Budd would exercise due care when turning onto Cali Drive, and that pedestrians such as Chan would exercise due care in crossing a public roadway. Walking across a public road certainly can present risks from vehicle traffic, but that risk becomes unreasonable mainly when users—whether vehicle operators or pedestrians—fail to pay attention or fail to follow rules. Unfortunately, one never knows when or where that may happen. The majority births an entirely new and unwarranted expansive duty never recognized before. In the process, the court creates rather than calms conflict between this court and other appellate courts generally, including, more problematically, the First Court of Appeals. See Tkatch, 1997 WL 694919, at *4-5; Lawson, 888 S.W.2d at 35; Dixon, 874 S.W.2d at 763.

In a post-submission letter, appellees summarize the steps that HNMC could have taken to ensure pedestrian safety along Cali Drive:

A pedestrian gate [next to the vehicle entrance/exit] might have helped somewhat by angling pedestrians away from the driveway. But the Hospital should have taken measures to stop or discourage pedestrians from crossing the street in that unsafe location. For example, it could have installed a grassy area, bushes, or other obstruction, such as cabling or a fence. The Hospital also could have closed the building’s northeast exit or transformed it into an emergency exit.

But whether HNMC could have taken the steps cited by appellees is not sufficient to balance the scales in favor of imposing a duty on HNMC in this instance. Accord, e.g., Buchanan, 159 S.W.2d at 110 (a person may owe a moral duty to warn a passerby about a dangerous condition, “but being a mere bystander, and in nowise responsible for the dangerous situation, he owes no legal duty to render assistance”). A practical ability to warn does not create a duty to do so; just as a person has no general duty to control others even when that person has the ability. See Nabors, 288 S.W.3d at 404; Phillips, 801 S.W.2d at 526. Expanding the scope of a premises owner’s duty with respect to adjacent public roadways anytime the owner has a mere ability to take some action that might decrease a risk on the roadway would make it nearly impossible to discern where a premises owner’s liability begins and ends. Finally, HNMC did not control and had no right to control Budd or Chan, nor was HNMC shown to have superior knowledge of the risk—i.e., crossing an open road—relative to any of the other parties.

Conclusion

Leny Chan died tragically from injuries sustained when struck by a third party in a public roadway. Under the circumstances presented here, HNMC, as the adjacent premises owner, owed no legal duty to warn or otherwise protect Chan from the danger of crossing the roadway. Because HNMC owed no duty, appellees’ negligence claim fails as a matter of law. I would sustain HNMC’s second issue, reverse the trial court’s judgment, and render judgment that appellees take nothing from HNMC.

Footnotes

1

A majority of the court, consisting of Justices Bourliot, Zimmerer, Spain, Hassan, and Poissant, has voted to grant the motion for en banc reconsideration. Chief Justice Christopher, and Justices Wise and Jewell voted to deny the motion.

2

We will refer to all appellees collectively as “appellees.” Our use of “Chan” throughout the opinion refers only to Leny.

3

In the past, a marked crosswalk was located at mid-block near the hospital’s northeast exit. However, Harris County alleges it abandoned the crosswalk at some point prior to the accident, and it was no longer clearly visible on the roadway because the paint stripes had deteriorated or faded. Additionally, no crosswalk signs appeared at this location, as stood at other designated crosswalks in the vicinity of the hospital.

4

On February 16, 2012, Harris County sent HNMC a letter after Harris County completed a traffic and pedestrian study that HNMC requested. In this communication, Harris County informed HNMC that it was removing two of the five existing pedestrian crossings on Cali Drive, including the one where Chan was killed. Harris County’s internal documents indicate that it was removing—i.e., ceasing to maintain—the crossing where Chan was killed. Harris County, however, closed the work order due to an administrative error without removing the crosswalk markings on Cali Drive between the parking lot and the northeast entrance. HNMC’s CEO testified that no one informed HNMC’s employees that the crosswalk had become a “non-designated crosswalk” and that it was a “non-designated crosswalk” when Chan was killed.

5

Barreda testified at trial regarding this incident.

6

Anderson also wrote to the commissioner of Precinct 4 immediately after Barrera’s incident asking Harris County to install speed bumps on Cali Drive. In this communication, Anderson stated:

There have been other scares at our Pedestrian Crossings around the perimeter of the campus, but this incident on the busiest side street of a large suburban hospital brings to light the brevity of life. It is a life safety issue too serious to ignore for the protection of our patients, visitors, staff[,] and physicians.

7

These cases cite to the risk-utility test factors.

8

The two letters sent by HNMC to Harris County reference the incident involving Barreda in 2008. HNMC’s 2009 letter references a “similar incident” and “other scares at [HNMC’s] pedestrian crossings around the perimeter of the campus ....” HNMC’s 2010 letter describes an incident in 2010 that was “similar” to Barreda’s 2008 incident.

1

See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 784 (Tex. 2001) (“More than one act may be the proximate cause of the same injury.”) (citing Travis, 830 S.W.2d at 98); McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex. 1980) (failure to use ordinary care “need not be the sole cause, but it must be a concurring cause and such as might reasonably have been contemplated as contributing to the result under the attending circumstances”) (citing Mo. Pac. R.R. Co. v. Am. Statesman, 552 S.W.2d 99, 103-104 (Tex. 1977)); Brookshire Bros., Inc. v. Lewis, 911 S.W.2d 791, 793 (Tex. App.—Tyler 1995, writ denied); Nw. Mall, Inc. v. Lubri-Lon Int’l, Inc., 681 S.W.2d 797, 803 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (“Where the failure to use ordinary care actively aids in producing an injury, it need not be the sole cause.”); see also Lane v. Halliburton, 529 F.3d 548, 566 (5th Cir. 2008) (“ ‘[I]f the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.’ Rest. (2d) Torts § 449. Texas courts have applied this theory of liability in previous cases.”) (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985); Kimbriel Produce Co. v. Mayo, 180 S.W.2d 504, 507 (Tex. App.—San Antonio 1944, writ ref’d w.o.m.); Engle v. Dinehart, No. 99-10087, 2000 WL 554942, at *11-12 (5th Cir. Apr. 19, 2000) (noting that Texas courts have adopted the causation theory embodied in Sections 448 and 449 of the Restatement)); Restatement (Second) of Torts § 449 cmt. b (Am. Law Inst. 1965); id. at reporter’s n. cmt. b (citing Jesse French Piano & Organ Co. v. Phelps, 105 S.W. 225 (Tex. App.—Austin 1907, no writ)).

2

(“Second, where the defendant’s negligence creates or increases the foreseeable risk of harm through the intervention of another force, the defendant is not relieved of liability by the fact that the risk to which he subjected the plaintiff has indeed come to pass. Restatement § 442A; Dew, 208 S.W.3d at 453. Similarly, if the likelihood that a third person may act in a particular manner is one of the hazards that makes the defendant negligent, that act (even if criminal or intentional) does not prevent the defendant from being liable. Restatement § 449. Thus, where the original negligence enables the intervening force to occur and contributes to the resulting harm, the intervening force is a concurring cause. Stanfield, 494 S.W.3d at 99; see also Dew, 208 S.W.3d at 453 (concluding intervening act that ‘exploited th[e] inadequacy’ created by defendant’s negligence ‘did not fundamentally alter the foreseeable consequences of [defendant’s] original negligence’).”).

3

Even if this were not enough, we are obliged to examine other states’ jurisprudence when determining whether a duty exists. SmithKline Beecham Corp., 903 S.W.2d at 351. Section 449 of the Restatement has been quoted by other state courts as well. See, e.g., Hurn v. Greenway, 293 P.3d 480, 484 (Alaska 2013); Petolicchio v. Santa Cruz Cty. Fair & Rodeo Ass’n, Inc., 866 P.2d 1342, 1349 (Ariz. 1994); Keck v. Am. Emp’t Agency, Inc., 652 S.W.2d 2, 6 (Ark. 1983); Sharp v. W.H. Moore, Inc., 796 P.2d 506, 511 (Idaho 1990); Tenney v. Atl. Assocs., 594 N.W.2d 11, 21 (Iowa 1999); State v. Anderson, 12 P.3d 883, 887 (Kan. 2000); Horridge v. St. Mary’s Cty. Dep’t of Soc. Servs., 854 A.2d 1232, 1246 (Md. 2004); Small v. McKennan Hosp., 437 N.W.2d 194, 202 (S.D. 1989); Stewart v. Wulf, 271 N.W.2d 79, 87 (Wis. 1978); see also Lacy v. D.C., 424 A.2d 317, 323 (D.C. 1980). Section 449 has also been cited by several federal courts as well. See, e.g., F.T.C. v. Wyndham Worldwide Corp., 799 F.3d 236, 246 (3d Cir. 2015); Fisher v. Halliburton, 667 F.3d 602, 616 (5th Cir. 2012); Mitchell v. Archibald & Kendall, Inc., 573 F.2d 429, 435 n.4 (7th Cir. 1978).

4

(citing Abdallah v. Caribbean Sec. Agency, 557 F.2d 61 (3d Cir. 1977) (question as to whether security company, which was on notice as to malfunctioning burglar alarm, could be held liable for burglary losses); Hannah v. Gulf Power Co., 128 F.2d 930 (5th Cir. 1942); Romero v. Superior Court, 107 Cal. Rptr. 2d 801 (Cal. Dist. Ct. App. 2001) (adult defendant who assumed special relationship with minor by inviting minor into his or her home will be deemed to have owed duty of care to take reasonable measures to protect minor against assault by another minor invitee while in defendant’s home when evidence and surrounding circumstances establish that defendant had actual knowledge of and thus must have known the offending minor’s assaultive propensities); Kane v. Hartford Accident & Indem. Co., 159 Cal. Rptr. 446 (Cal. Dist. Ct. App. 1979); Adam v. L.A. Transit Lines, 317 P.2d 642 (Cal. Dist. Ct. App. 1957); Williams v. Grier, 26 S.E.2d 698 (Ga. 1943); Childers v. Franklin, 197 N.E.2d 148 (Ill. App. Ct. 1964); Blessing v. Welding, 286 N.W. 436 (Iowa 1939); Hall v. Midwest Bottled Gas Distribs., Inc., 532 S.W.2d 449 (Ky. 1975); State, to Use of Schiller v. Hecht Co., 169 A. 311 (Md. 1933); Quinn v. Winkel’s, Inc., 279 N.W.2d 65, 68 (Minn. 1979) (bartender has duty to protect patron from persons who the bartender knows to have a violent nature and who are known to frequent the premises); Christiansen v. St. Louis Pub. Serv. Co., 62 S.W.2d 828 (Mo. 1933); Daniels v. Andersen, 237 N.W.2d 397 (Neb. 1975) (duty of jailer to provide his prisoners with adequate protection); Eitel v. Times, Inc., 352 P.2d 485 (Or. 1960); Morris v. Barnette, 553 S.W.2d 648 (Tex. App.—Texarkana 1977, writ ref’d n.r.e.); Alonge v. Rodriquez, 279 N.W.2d 207, 210 (Wis. 1979); Korenak v. Curative Workshop Adult Rehab. Ctr., 237 N.W.2d 43 (Wis. 1976) (duty of vocational school to protect students from trainees with known and demonstrated tendencies to violence); Restatement (Second) of Torts § 448 (Am. Law Inst. 1965)).

5

See Greater Houston Transp. Co., 801 S.W.2d at 525 (“In determining whether the defendant was under a duty, the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor’s conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant.”).

1

Perhaps fearing that the court would not find invited error, the appellees assert repeatedly in their brief that general negligence is the correct standard while at the same time, they discuss the design of the stairs, the design of the entrance to the parking garage, and the presence of a concrete pad and signs on the premises blocking a driver’s view—all traditional premises issues.

1

I direct my present comments to the merits but note my agreement with Chief Justice Christopher that the majority has violated Texas Rule of Appellate Procedure 41.2(c) in more than one respect. This case is not en banc worthy. Moreover, far from securing uniformity in the court’s decisions, the majority opinion gives rise to new and unwarranted conflicts with this and other appellate courts.

2

In the trial court, appellees acknowledged this line of authority, citing Hirabayashi: “Texas courts generally do not find duties for landowners for injuries that occur off of the owners’ premises. Usually there is no duty to protect persons from injury on adjacent property a person neither owns nor occupies.”

3

See Cabrera, 2010 WL 3271729, at *3; Pride, 2001 WL 755907, at *6-7; Hirabayashi, 977 S.W.2d at 707; Tkatch, 1997 WL 694919, at *2; Dixon, 874 S.W.2d at 763; Naumann, 749 S.W.2d at 191; see also Hyde v. Hoerauf, 337 S.W.3d 431, 437 n.13 (Tex. App.—Texarkana 2011, no pet.) (discussing Kraus); Duran v. Cinemark U.S.A, Inc., No. 05-99-01433, 2000 WL 768640, at *4 (Tex. App.—Dallas June 15, 2000, pet. denied) (not designated for publication) (same); Lawson v. B Four Corp., 888 S.W.2d 31, 34 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (same).

4

At issue in Strakos was the liability of an independent contractor (as opposed to a property owner) who was hired to widen a road but left holes in the ground after removing fenceposts, as well as the liability of a subcontractor hired to prepare the widened road for surfacing. Strakos, 360 S.W.2d at 795. The plaintiff Strakos fell into one of the unfilled holes. The contractor and subcontractor were held to owe a duty to Strakos because the contractor created the holes (which were partially obscured) and the subcontractor controlled the area but failed to correct or warn of the danger the unfilled holes presented to those using the road. Id. An independent contractor who created a dangerous condition, the court said, can remain liable for the condition even after relinquishing control of the property. Id. at 790; see also Occidental Chem., 478 S.W.3d at 647-48 (discussing Strakos).

5

Similarly, this court and others have upheld liability when those in control of premises create unreasonable hazards on publicly traversed ways other than roads. Nw. Mall, Inc. v. Lubri-Ion Int’l, Inc., 681 S.W.2d 797, 802 (Tex. App.—Houston [14th Dist.] 1984, writ ref’d n.r.e.) (kiosk operator in shopping mall allowed oil to spill outside the immediate premises under its control and into mall’s public walkway); Beaumont Iron Works Co. v. Martin, 190 S.W.2d 491, 495 (Tex. App.—Beaumont 1945, writ ref’d w.o.m.) (windowpane fell from a building onto an adjacent sidewalk). In Northwest Mall, this court cited Kraus in support of its holding. Nw. Mall, 681 S.W.2d at 802.

6

In today’s case, Budd had just exited HNMC property at the time his car struck Chan on Cali Drive. I will assume that Chan, crossing the street to the parking lot, was both exiting and entering hospital property.

7

For example, appellees argued that a duty existed because “HNMC failed to design its premises in a safe manner.”

8

See Stiff v. Kaufman Indep. Sch. Dist., No. 05-17-00988-CV, 2018 WL 3725278, at *6 (Tex. App.—Dallas Aug. 6, 2018, no pet.) (mem. op.) (stating “there is some risk involved for any pedestrian crossing a roadway”).

9

See, e.g., Sullivan v. Microsoft Corp., 618 S.W.3d 926, 930 (Tex. App.—El Paso 2021, no pet.); Miramar Petroleum, Inc. v. Cimarron Eng’g, LLC, 484 S.W.3d 214, 217 n.2 (Tex. App.—Corpus Christi 2016, pet. denied); Villarreal v. Villarreal, No. 04-15-00551-CV, 2016 WL 4124067, at *2 (Tex. App.—San Antonio Aug. 3, 2016, no pet.) (mem. op.); Drennen v. ExxonMobil Corp., 367 S.W.3d 288, 300 (Tex. App.—Houston [14th Dist.] 2012) (“[W]e will not affirm the trial court’s judgment based on a legal theory not presented to the trial court and to which the other party had no opportunity to respond.”), rev’d on other grounds, 452 S.W.3d 319 (Tex. 2014); Ethicon Endo-Surgery, Inc. v. Gillies, 343 S.W.3d 205, 210 (Tex. App.—Dallas 2011, pet. denied).

10

All of those courts determined that the balancing test weighed against a duty because the harm was not foreseeable.

11

See, e.g., Gonzales, 7 S.W.3d at 308 (declining to place a common-law duty on landowners to assess whether intersections adjacent to their property are sufficiently illuminated).

Court of Appeals of Texas, Houston (14th Dist.).

MICHELLE KAPLOWITZ, Appellant

v.

LONE STAR TAN GP, LLC; LST AUSTIN I, LTD; AND ASHLEY ALVILLAR, Appellees

NO. 14-20-00329-CV

|

Opinion filed October 19, 2021

On Appeal from the 26th District Court

Williamson County, Texas

Trial Court Cause No. 18-0550-C26

Panel consists of Justices Wise, Bourliot, and Zimmerer.

MEMORANDUM OPINION

Jerry Zimmerer Justice

Reversed and Remanded in Part and Affirmed in Part and Memorandum Opinion filed October 19, 2021.

Appellant Michelle Kaplowitz appeals the trial court’s order granting traditional summary judgment in favor of appellees Lone Star Tan GP (“Lone Star”), LST Austin I, LTD (“LST”), and Ashley Alvillar (collectively “Defendants”). In three issues Kaplowitz asserts the trial court erred in (1) striking her affidavit attached to the response to motion for summary judgment; (2) dismissing her negligence claims based on the exclusive-remedy defense; and (3) dismissing her intentional infliction of emotional distress claim. Concluding the trial court erred in striking Kaplowitz’s affidavit and dismissing Kaplowitz’s negligence claims, but not her intentional infliction of emotional distress claim, we affirm in part and reverse and remand in part.

BACKGROUND

On February 23, 2017, Kaplowitz began employment in a tanning salon named Palm Beach Tan. The store was located at 5001 183A Toll Road, Cedar Park, TX 78613. According to Kaplowitz’s petition, she was working at the store on May 27, 2017 while talking on the phone with the store manager, Ashley Alvillar. Alvillar allegedly “lost her temper and verbally assaulted Kaplowitz,” who became distressed and experienced a non-epileptic seizure, which caused her to fall and hit her head. Kaplowitz alleged in her petition that, due to a previous brain injury, she experienced seizures when subjected to stressful situations. On the day of the incident Alvillar filed an injury report, which listed LST and Lone Star as Kaplowitz’s employers.

Kaplowitz filed suit against Lone Star, LST, and Alvillar1 alleging intentional infliction of emotional distress (“IIED”) and negligence. Kaplowitz further alleged that Lone Star and LST were vicariously liable for the actions of their employee, Alvillar. All three defendants filed answers asserting, inter alia, that their liability for Kaplowitz’s negligence claims was precluded by the exclusive remedy provision of the Texas Workers’ Compensation Act (“TWCA”). See Tex. Lab. Code § 408.001. Defendants further alleged that Kaplowitz could not recover on her IIED claim because the gravamen of her complaint could be addressed by another common-law tort.

On February 18, 2020, Defendants filed their first amended motion for traditional summary judgment. In the motion, Defendants alleged that Kaplowitz was an employee of Lone Star, and “its related entity LST Austin I, LTD, as a franchisee of Palm Beach.” The motion further alleged that both Lone Star and LST were insured for workers’ compensation. In support of their motion for summary judgment Defendants relied on (1) a franchise agreement executed on March 18, 2014 between Palm Beach Tan and Lone Star; (2) an assignment and assumption agreement between Palm Beach, Lone Star and LST executed May 8, 2019; (3) a relocation amendment dated January 9, 2017 relocating “Store AUS004” from 1700 West Parmer Lane, Ste 600, Austin, TX 78727 to 5001 183A Toll Road, Cedar Park, TX 78613; (4) a workers’ compensation insurance policy listing LST as the insured; (5) the aforementioned injury report; and (6) a hiring packet, which showed Lone Star was Kaplowitz’s employer.

Defendants further asserted in their motion for summary judgment that Kaplowitz’s pleadings showed her claims gave rise to alternative means of recovery other than IIED. Because IIED is a gap-filler tort, Defendants asserted the tort was not available to Kaplowitz because she has another common-law remedy to address her alleged injuries. Defendants further asserted that Kaplowitz could not maintain an IIED claim because Alvillar’s alleged actions did not rise to the level of extreme and outrageous conduct as a matter of law.

Kaplowitz responded to Defendants’ motion urging that Defendants had not conclusively established the affirmative defense of the exclusivity provisions of the Texas Labor Code because Lone Star, Kaplowitz’s employer, did not maintain workers’ compensation insurance as only LST was listed as an insured on the policy. Kaplowitz further alleged that the store where she was allegedly injured in Cedar Park, Texas, was not listed on the insurance policy. In Kaplowitz’s response she relied on (1) her affidavit in which she averred that she was told she would not be covered by workers’ compensation; and (2) the deposition testimony of Trevor Klepper, corporate representative of Lone Star and LST in which Klepper testified that the policy attached to the motion for summary judgment was the entire policy and Klepper did not know if Lone Star maintained a separate policy.

As to Kaplowitz’s claim of IIED she asserted that she was entitled to plead her negligence and IIED claims in the alternative under the Rules of Civil Procedure, and that Alvillar’s alleged “verbal assault” raised a fact issue as to whether her conduct could be deemed extreme and outrageous.

The trial court granted Defendants’ motion for summary judgment and dismissed all Kaplowitz’s claims. Kaplowitz appealed, and in three issues, challenges the trial court’s summary judgment order.

ANALYSIS2

A. Standard of Review

To be entitled to summary judgment under Rule 166a(c), a movant must establish there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We take as true all evidence favorable to the nonmovant and resolve any doubt in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848. A defendant moving for summary judgment on an affirmative defense must prove conclusively the elements of the defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).

B. Exclusivity Defense Under the Texas Labor Code

The Texas Workers’ Compensation Act (“TWCA”) was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment. Hughes Wood Prods. v. Wagner, 18 S.W.3d 202, 206 (Tex. 2000). An employer has the option of providing workers’ compensation insurance for employees and becoming a subscriber under the TWCA, or not providing workers’ compensation insurance and remaining a nonsubscriber. Tex. Lab. Code § 406.002(a); Port Elevator–Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012).

If the employer is a subscriber, the TWCA allows employees to recover workers’ compensation benefits for injuries in the course and scope of employment without proving fault by the employer and without regard to their negligence or that of their coworkers. Id. In exchange, the TWCA prohibits an employee from seeking common law remedies from his employer for personal injuries sustained in the course and scope of his employment. Hughes Wood Prods., 18 S.W.3d at 207. “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.” Tex. Lab. Code § 408.001(a).

The exclusive-remedy provision is an affirmative defense. Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App.—Houston [1st Dist.] 2011, no pet.). To show that a common-law claim is barred by the TWCA, the defendant must show that the injured worker was (1) its employee at the time of the work-related injury, and (2) covered by workers’ compensation insurance. Phillips v. Am. Elastomer Prods., L.L.C., 316 S.W.3d 181, 187 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Once these requirements are satisfied, the exclusive remedy provision is triggered, and all employee claims of work-related negligence and gross negligence are barred. Warnke, 358 S.W.3d at 343.

I. The trial court erred in striking Kaplowitz’s affidavit attached to the response to motion for summary judgment.

In Kaplowitz’s first issue she challenges the trial court’s ruling on the defendants’ objections to her summary judgment evidence. In response to the motion for summary judgment Kaplowitz attached a declaration in which she averred, “When I was trained to work at Palm Beach Tan in Cedar Park, Texas, I was told by the person who trained me that I would not be covered by workers’ compensation insurance.” Defendants filed an objection to the declaration contending that the declaration contained “blanket, conclusory statements of fact from an interested party” and did not constitute proper summary judgment proof. Defendants further objected that the declaration should be struck because it lacked specificity and could not be readily controverted.

A conclusory statement is one that expresses a factual inference without providing underlying facts to support that conclusion. See, e.g., Arkoma Basin Expl. Co. v. FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex. 2008). Affidavits containing conclusory statements that fail to provide the underlying facts supporting those conclusions are not proper summary judgment evidence. Nguyen v. Citibank, N.A., 403 S.W.3d 927, 931 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). To avoid being conclusory, an affidavit must contain specific factual bases, admissible in evidence, from which any conclusions are drawn. Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538, 542 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Defendants argue Kaplowitz’s declaration is conclusory because Kaplowitz failed to give “further detail or background information, including the identity of this alleged person or said person’s relation to Defendants....” We do not agree that Kaplowitz’s statement was a factual conclusion. Kaplowitz’s statement that the person who trained her at Palm Beach Tan explained that she would not be covered by workers’ compensation insurance is a statement of fact, not an inference from unstated facts. On appeal, Defendants argue this statement cannot be readily controverted because Kaplowitz did not state the name of the person who trained her. Kaplowitz’s statement could be readily controverted by Lone Star’s employee who trained Kaplowitz.

We conclude that this statement is not conclusory and raises a genuine issue of material fact on whether Kaplowitz’s employer was covered by workers’ compensation insurance at the time of her injury. See Padilla v. Metro. Transit Auth. of Harris County, 497 S.W.3d 78, 85–86 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (holding that minute detail in affidavit was unnecessary to render testimony non-conclusory). We sustain Kaplowitz’s first issue.

II. Defendants did not conclusively establish that Kaplowitz’s employer provided workers’ compensation insurance.

Lone Star and LST asserted they were both Kaplowitz’s employers and were covered by workers’ compensation insurance. Kaplowitz contends there is a fact question on both scores. Because this case was decided on summary judgment, the defendants must establish each of their contentions as a matter of law. See Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 (Tex. 2005).

Defendants’ summary judgment evidence reflects that Kaplowitz was employed by Lone Star. The hiring packet attached to Defendants’ motion contains no mention of LST. Defendants rely on extraneous documents as evidence that Kaplowitz was employed by both Lone Star and LST. First, Defendants refer to Kaplowitz’s answers to interrogatories in which she stated that she worked at “Palm Beach Tan, The Parke, 5001 183A L-200, Cedar Park, Texas 78613.” Next, Defendants refer to the franchise agreement between Lone Star Tan, Ltd.—not a party to this suit—and Palm Beach Tan—also not a party, which lists Palm Beach Tan as the franchisor and Lone Star Tan, Ltd, as the franchisee. Finally, Defendants rely on an assignment and assumption agreement signed two years after Kaplowitz’s injury, in which LST assumed all rights, liabilities, and obligations from Lone Star Tan, Ltd.

The TWCA defines “employee” as “each person in the service of another under a contract of hire, whether express or implied, or oral or written.” Tex. Lab. Code § 401.012(a). An “employer” is “a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.” Id. § 401.011(18). Although determining whether a plaintiff is the defendant’s employee is ultimately a matter of applying these statutory definitions, courts have not often found the definitions alone to be dispositive. Frequent litigation over the exclusive-remedy provision has yielded a large body of case law addressing whether the plaintiff was the defendant’s employee for workers’ compensation purposes. See Waste Mgmt. of Tex., Inc. v. Stevenson, 622 S.W.3d 273, 277 (Tex. 2021). Under those cases, “[t]he test to determine whether a worker is an employee rather than an independent contractor is whether the employer has the right to control the progress, details, and methods of operations of the work.” Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002). An employee may have more than one employer within the meaning of the TWCA and each employer may raise the exclusive remedy provision as a bar to the employee’s claims. See Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 143, 148 (Tex. 2003); see also Garza, 161 S.W.3d at 476.

In Wingfoot and Garza, the injured worker was employed by a temporary employment agency (general employer), which agreed to provide another company (client company) with temporary workers. The injured worker sustained a work-related injury while working on the premises of the client company. Wingfoot, 111 S.W.3d at 135; Garza, 161 S.W.3d at 474. In Wingfoot, the supreme court held that the exclusive remedy provision applied to a general employer because the injured worker and the general employer fell within the respective definitions of “employee” and “employer” under the TWCA. 111 S.W.3d at 149. In Garza, the undisputed evidence established that at the time the worker was injured, he was working on the client company’s premises, in the furtherance of the client company’s day-to-day business, and the details of the work that caused his injury were specifically directed by the client company. 161 S.W.3d at 177. Thus, the client company was the employer of the injured worker for the purposes of the exclusive remedy provision. Id.

*5 In this case, there is no dispute as to whether Kaplowitz was an employee or independent contractor. The dispute centers on who employed Kaplowitz. The documents attached to Defendants’ motion for summary judgment do not conclusively establish that Kaplowitz was employed by LST or by both LST and Lone Star at the time of the injury. The hiring packet signed by Kaplowitz lists Lone Star as her employer. The only documents relied on by Defendants that could reflect LST and Lone Star as Kaplowitz’s employers are the assignment and assumption agreement and the injury report filled out by Alvillar. In contrast, the record reflects that Lone Star alone was Kaplowitz’s employer, and LST did not assume Lone Star Tan, Ltd’s obligations until two years after Kaplowitz was injured. Because there is conflicting evidence in the summary-judgment record, Defendants have not conclusively proved that Kaplowitz was employed by LST or by both Lone Star and LST.

The summary judgment evidence also includes a workers’ compensation insurance policy listing the insured as LST. The policy contains no mention of Lone Star. The policy also does not list the premises on which Kaplowitz was working when she was allegedly injured.

Lone Star and LST assert they have established they were both named insureds on the policy, which provided workers’ compensation insurance coverage invoking the TWCA. Under that argument, even if LST was not Kaplowitz’s employer the exclusivity defense would apply. The record reflects, however, that LST was the named insured on the policy, not Lone Star. The policy lists several workplaces as “Named Insured Workplaces.” The location where Kaplowitz was injured does not appear on the list of insured workplaces. In their brief on appeal, Lone Star and LST argue that Kaplowitz was employed by Lone Star, not another entity, Lone Star, Ltd. Neither party asserted that LST, the named insured, was Kaplowitz’s sole employer.

The undisputed evidence establishes that at the time Kaplowitz was injured she was working on the premises located at 5001 183A Toll Road, Cedar Park, TX 78613, an address not listed on the workers’ compensation policy. There is evidence that Kaplowitz was hired by Lone Star and that LST was a workers’ compensation insurance subscriber. Lone Star has not come forward with a workers’ compensation policy that lists Lone Star as an insured, nor has LST come forward with conclusive proof that Kaplowitz was its employee at the time of the alleged injury. While Lone Star and LST argued they were co-employers and were both workers’ compensation subscribers, the record does not conclusively establish those facts.

The summary judgment evidence established a genuine issue of material fact as to whether Kaplowitz’s employer was covered by workers’ compensation insurance. Defendants, therefore, failed to conclusively establish their affirmative defense of the exclusive remedy doctrine. See Warnke, 358 S.W.3d at 343 (exclusive remedy doctrine is triggered by conclusive evidence that injured worker was an employee at the time of the work-related injury, and the employer was covered by workers’ compensation insurance). We sustain Kaplowitz’s second issue.

III. The trial court did not err in granting summary judgment on Kaplowitz’s claim of intentional infliction of emotional distress.

In Kaplowitz’s third issue she asserts the trial court erred in dismissing her IIED claim based on the allegations in her petition. Defendants argued in their motion for summary judgment that Kaplowitz could not recover on her IIED claim because the gravamen of her complaint could be addressed by another common-law tort. Defendants further asserted that Alvillar’s alleged conduct was not extreme or outrageous as a matter of law.

Earlier we discussed one exception to the TWCA’s coverage—the exclusivity defense. This issue implicates another exception, the “intentional tort” exception. Under that exception, the TWCA does not bar recovery for intentional torts attributable to the employer. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 609 (Tex. 1999).

*6 To prevail on a claim for IIED, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006); Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 352 S.W.3d 191, 197 (Tex. App.—Houston [14th Dist.] 2011, no pet.). A plaintiff’s emotional distress must be the “intended or primary consequence of the defendant’s conduct.” Bruce, 998 S.W.2d at 611.

To be extreme or outrageous, conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 611– 12. Meritorious claims for IIED are “relatively rare” because “most human conduct, even that which causes injury to others, cannot be fairly characterized as extreme and outrageous.” Suberu, 216 S.W.3d at 796 (citing Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 815 n.1 (Tex. 2005) (citing cases in which conduct was found not to be extreme and outrageous)). It is for the court to determine, in the first instance, whether particular conduct has met this high standard. Bruce, 998 S.W.2d at 616. Generally, insensitive or even rude behavior does not constitute extreme and outrageous conduct. Id. at 611–12. Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct. Id. Except in circumstances bordering on serious criminal acts, even claims stemming from heinous acts rarely have merit as intentional infliction claims. Jackson, 157 S.W.3d at 818. It is the severity and regularity of abusive and threatening conduct that brings it “into the realm of extreme and outrageous conduct.” Bruce, 998 S.W.2d at 617.

“Emotional distress includes all highly unpleasant mental reactions such as embarrassment, fright, horror, grief, shame, humiliation, and worry.” Id. at 618; see also Havens v. Tomball Cmty. Hosp., 793 S.W.2d 690, 692 (Tex. App.—Houston [1st Dist.] 1990, writ denied). Severe emotional distress is distress that is so severe that no reasonable person could be expected to endure it. Bruce, 998 S.W.2d at 618.

IIED is a gap-filler tort that was “judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffman–La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004); see also Waffle House, Inc. v. Williams, 313 S.W.3d 796, 808 (Tex. 2010) (IIED provides remedy where other traditional remedies not available). It was “never intended to supplant or duplicate existing statutory or common-law remedies.” Jackson, 157 S.W.3d at 816.

Where the gravamen of a complaint is covered by another common-law or statutory tort, IIED is not available. Zeltwanger, 144 S.W.3d at 447; see also Louis v. Mobil Chem. Co., 254 S.W.3d 602, 608 (Tex. App.—Beaumont 2008, pet. denied) (“Where the gravamen of the complaint is really another tort, intentional infliction of emotional distress is unavailable even if the evidence would be sufficient to support a claim for intentional infliction of emotional distress in the absence of another remedy.”). “Even if other remedies do not explicitly preempt the tort, their availability leaves no gap to fill.” Jackson, 157 S.W.3d at 816. A plaintiff cannot maintain a claim for IIED “regardless of whether he ... succeeds on, or even makes” the precluding claim. Zeltwanger, 144 S.W.3d at 448; see also Garcia v. Shell Oil Co., 355 S.W.3d 768, 775–76 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“This is true even if plaintiff does not assert the precluding claim in her petition ... or asserts the displacing claim but does not prevail ...”).

*7 Because Kaplowitz’s claim of IIED depends on the conduct alleged in her claims of negligence, she has another remedy. Where, as here, other tort claims are potentially available there is simply no gap to fill and a plaintiff cannot maintain her claim for IIED regardless of whether she succeeds on, or even makes, the precluding claim. See Zeltwanger, 144 S.W.3d at 448.

Kaplowitz argues that the Rules of Civil Procedure permit alternative pleading, therefore permitting her to plead IIED and negligence claims asserting harm from the same conduct. See Tex. R. Civ. P. 48 (permitting claims to be pleaded in the alternative). The problem with this argument is that Kaplowitz cites the very same conduct as causing her distress as part of her negligence claims. Kaplowitz has a common-law remedy for Alvillar’s alleged actions and her IIED claim fails because it is a gap-filler tort and there is no gap to fill. The trial court did not err in granting summary judgment on this claim. See Hoffmann–La Roche, Inc., 144 S.W.3d at 447. Because Kaplowitz’s IIED claim fails as a gap-filler tort we need not address whether Kaplowitz showed Alvillar’s conduct was extreme and outrageous as a matter of law. We overrule Kaplowitz’s third issue.

CONCLUSION

We affirm the trial court’s summary judgment on Kaplowitz’s IIED claim. Having sustained Kaplowitz’s first and second issues, we reverse the trial court’s summary judgment on grounds of the exclusivity defense and remand for proceedings consistent with this opinion.

Footnotes

1

Kaplowitz initially filed suit against Palm Beach Tan, but later amended her petition as Palm Beach Tan was not her or Alvillar’s employer.

2

The Texas Supreme Court ordered the Third Court of Appeals to transfer this case to our court. Under the Texas Rules of Appellate Procedure, “the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent with the precedent of the transferor court.” Tex. R. App. P. 41.3.

Court of Appeals of Texas, Houston (14th Dist.).

Michelle KAPLOWITZ, Appellant

v.

LONE STAR TAN GP, LLC; LST Austin I, LTD; and Ashley Alvillar, Appellees

NO. 14-20-00329-CV

|

Opinion filed October 19, 2021

On Appeal from the 26th District Court, Williamson County, Texas, Trial Court Cause No. 18-0550-C26

Attorneys & Firms

Brett H. Payne, Gregory R. Ave, for Appellees.

David Jay Campbell, for Appellant.

Panel consists of Justices Wise, Bourliot, and Zimmerer.

SUBSTITUTE MEMORANDUM OPINION

Jerry Zimmerer, Justice

*1 We withdraw our memorandum opinion issued October 19, 2021 and substitute the following memorandum opinion therefor. Appellant Michelle Kaplowitz appeals the trial court’s order granting traditional summary judgment in favor of appellees Lone Star Tan GP (“Lone Star”), LST Austin I, LTD (“LST”), and Ashley Alvillar (collectively “Defendants”). In three issues Kaplowitz asserts the trial court erred in (1) striking her affidavit attached to the response to motion for summary judgment; (2) dismissing her negligence claims based on the exclusive-remedy defense; and (3) dismissing her intentional infliction of emotional distress claim. Concluding the trial court erred in striking Kaplowitz’s affidavit and dismissing Kaplowitz’s negligence claims, but not her intentional infliction of emotional distress claim, we affirm in part and reverse and remand in part.

BACKGROUND

On February 23, 2017, Kaplowitz began employment in a tanning salon named Palm Beach Tan. The store was located at 5001 183A Toll Road, Cedar Park, TX 78613. According to Kaplowitz’s petition, she was working at the store on May 27, 2017 while talking on the phone with the store manager, Ashley Alvillar. Alvillar allegedly “lost her temper and verbally assaulted Kaplowitz,” who became distressed and experienced a non-epileptic seizure, which caused her to fall and hit her head. Kaplowitz alleged in her petition that, due to a previous brain injury, she experienced seizures when subjected to stressful situations. On the day of the incident Alvillar filed an injury report, which listed LST and Lone Star as Kaplowitz’s employers.

Kaplowitz filed suit against Lone Star, LST, and Alvillar1 alleging intentional infliction of emotional distress (“IIED”) and negligence. Kaplowitz further alleged that Lone Star and LST were vicariously liable for the actions of their employee, Alvillar. All three defendants filed answers asserting, inter alia, that their liability for Kaplowitz’s negligence claims was precluded by the exclusive remedy provision of the Texas Workers’ Compensation Act (“TWCA”). See Tex. Lab. Code § 408.001. Defendants further alleged that Kaplowitz could not recover on her IIED claim because the gravamen of her complaint could be addressed by another common-law tort.

On February 18, 2020, Defendants filed their first amended motion for traditional summary judgment. In the motion, Defendants alleged that Kaplowitz was an employee of Lone Star, and “its related entity LST Austin I, LTD, as a franchisee of Palm Beach.” The motion further alleged that both Lone Star and LST were insured for workers’ compensation. In support of their motion for summary judgment Defendants relied on (1) a franchise agreement executed on March 18, 2014 between Palm Beach Tan and Lone Star; (2) an assignment and assumption agreement between Palm Beach, Lone Star and LST executed May 8, 2019; (3) a relocation amendment dated January 9, 2017 relocating “Store AUS004” from 1700 West Parmer Lane, Ste 600, Austin, TX 78727 to 5001 183A Toll Road, Cedar Park, TX 78613; (4) a workers’ compensation insurance policy; (5) the aforementioned injury report; and (6) a hiring packet, which showed Lone Star was Kaplowitz’s employer.

*2 Defendants further asserted in their motion for summary judgment that Kaplowitz’s pleadings showed her claims gave rise to alternative means of recovery other than IIED. Because IIED is a gap-filler tort, Defendants asserted the tort was not available to Kaplowitz because she has another common-law remedy to address her alleged injuries. Defendants further asserted that Kaplowitz could not maintain an IIED claim because Alvillar’s alleged actions did not rise to the level of extreme and outrageous conduct as a matter of law.

Kaplowitz responded to Defendants’ motion urging that Defendants had not conclusively established the affirmative defense of the exclusivity provisions of the Texas Labor Code because Lone Star, Kaplowitz’s employer, did not maintain workers’ compensation insurance as it was not listed on the insurance policy. Kaplowitz further alleged that the store where she was allegedly injured in Cedar Park, Texas, was not listed on the insurance policy. In Kaplowitz’s response she relied on (1) her affidavit in which she averred that she was told she would not be covered by workers’ compensation; and (2) the deposition testimony of Trevor Klepper, corporate representative of Lone Star and LST in which Klepper testified that the policy attached to the motion for summary judgment was the entire policy and Klepper did not know if Lone Star maintained a separate policy.

As to Kaplowitz’s claim of IIED she asserted that she was entitled to plead her negligence and IIED claims in the alternative under the Rules of Civil Procedure, and that Alvillar’s alleged “verbal assault” raised a fact issue as to whether her conduct could be deemed extreme and outrageous.

The trial court granted Defendants’ motion for summary judgment and dismissed all Kaplowitz’s claims. Kaplowitz appealed, and in three issues, challenges the trial court’s summary judgment order.

ANALYSIS2

A. Standard of Review

To be entitled to summary judgment under Rule 166a(c), a movant must establish there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We take as true all evidence favorable to the nonmovant and resolve any doubt in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848. A defendant moving for summary judgment on an affirmative defense must prove conclusively the elements of the defense. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001).

B. Exclusivity Defense Under the Texas Labor Code

The Texas Workers’ Compensation Act (“TWCA”) was adopted to provide prompt remuneration to employees who sustain injuries in the course and scope of their employment. Hughes Wood Prods. v. Wagner, 18 S.W.3d 202, 206 (Tex. 2000). An employer has the option of providing workers’ compensation insurance for employees and becoming a subscriber under the TWCA, or not providing workers’ compensation insurance and remaining a nonsubscriber. Tex. Lab. Code § 406.002(a); Port Elevator–Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012).

*3 If the employer is a subscriber, the TWCA allows employees to recover workers’ compensation benefits for injuries in the course and scope of employment without proving fault by the employer and without regard to their negligence or that of their coworkers. Id. In exchange, the TWCA prohibits an employee from seeking common law remedies from his employer for personal injuries sustained in the course and scope of his employment. Hughes Wood Prods., 18 S.W.3d at 207. “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.” Tex. Lab. Code § 408.001(a).

The exclusive-remedy provision is an affirmative defense. Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App.—Houston [1st Dist.] 2011, no pet.). To show that a common-law claim is barred by the TWCA, the defendant must show that the injured worker was (1) its employee at the time of the work-related injury, and (2) covered by workers’ compensation insurance. Phillips v. Am. Elastomer Prods., L.L.C., 316 S.W.3d 181, 187 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Once these requirements are satisfied, the exclusive remedy provision is triggered, and all employee claims of work-related negligence and gross negligence are barred. Warnke, 358 S.W.3d at 343.

I. The trial court erred in striking Kaplowitz’s affidavit attached to the response to motion for summary judgment.

In Kaplowitz’s first issue she challenges the trial court’s ruling on the defendants’ objections to her summary judgment evidence. In response to the motion for summary judgment Kaplowitz attached a declaration in which she averred, “When I was trained to work at Palm Beach Tan in Cedar Park, Texas, I was told by the person who trained me that I would not be covered by workers’ compensation insurance.” Defendants filed an objection to the declaration contending that the declaration contained “blanket, conclusory statements of fact from an interested party” and did not constitute proper summary judgment proof. Defendants further objected that the declaration should be struck because it lacked specificity and could not be readily controverted.

A conclusory statement is one that expresses a factual inference without providing underlying facts to support that conclusion. See, e.g., Arkoma Basin Expl. Co. v. FMF Assocs. 1990–A, Ltd., 249 S.W.3d 380, 389 n. 32 (Tex. 2008). Affidavits containing conclusory statements that fail to provide the underlying facts supporting those conclusions are not proper summary judgment evidence. Nguyen v. Citibank, N.A., 403 S.W.3d 927, 931 (Tex. App.—Houston [14th Dist.] 2013, pet. denied). To avoid being conclusory, an affidavit must contain specific factual bases, admissible in evidence, from which any conclusions are drawn. Southtex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538, 542 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Defendants argue Kaplowitz’s declaration is conclusory because Kaplowitz failed to give “further detail or background information, including the identity of this alleged person or said person’s relation to Defendants....” We do not agree that Kaplowitz’s statement was a factual conclusion. Kaplowitz’s statement that the person who trained her at Palm Beach Tan explained that she would not be covered by workers’ compensation insurance is a statement of fact, not an inference from unstated facts. On appeal, Defendants argue this statement cannot be readily controverted because Kaplowitz did not state the name of the person who trained her. Kaplowitz’s statement could be readily controverted by Lone Star’s employee who trained Kaplowitz.

*4 We conclude that this statement is not conclusory. See Padilla v. Metro. Transit Auth. of Harris County, 497 S.W.3d 78, 85–86 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (holding that minute detail in affidavit was unnecessary to render testimony non-conclusory). We sustain Kaplowitz’s first issue.

II. Defendants did not conclusively establish that Kaplowitz’s employer provided workers’ compensation insurance.

Lone Star and LST asserted they were both Kaplowitz’s employers and were covered by workers’ compensation insurance. Kaplowitz contends there is a fact question on both scores. Because this case was decided on summary judgment, the defendants must establish each of their contentions as a matter of law. See Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 475 (Tex. 2005).

Defendants’ summary judgment evidence reflects that Kaplowitz was employed by Lone Star. The hiring packet attached to Defendants’ motion contains no mention of LST. Defendants rely on extraneous documents as evidence that Kaplowitz was employed by both Lone Star and LST. First, Defendants refer to Kaplowitz’s answers to interrogatories in which she stated that she worked at “Palm Beach Tan, The Parke, 5001 183A L-200, Cedar Park, Texas 78613.” Next, Defendants refer to the franchise agreement between Lone Star Tan, Ltd.—not a party to this suit—and Palm Beach Tan—also not a party, which lists Palm Beach Tan as the franchisor and Lone Star Tan, Ltd., as the franchisee. Finally, Defendants rely on an assignment and assumption agreement signed two years after Kaplowitz’s injury, in which LST assumed all rights, liabilities, and obligations from Lone Star Tan, Ltd.

The TWCA defines “employee” as “each person in the service of another under a contract of hire, whether express or implied, or oral or written.” Tex. Lab. Code § 401.012(a). An “employer” is “a person who makes a contract of hire, employs one or more employees, and has workers’ compensation insurance coverage.” Id. § 401.011(18). Although determining whether a plaintiff is the defendant’s employee is ultimately a matter of applying these statutory definitions, courts have not often found the definitions alone to be dispositive. Frequent litigation over the exclusive-remedy provision has yielded a large body of case law addressing whether the plaintiff was the defendant’s employee for workers’ compensation purposes. See Waste Mgmt. of Tex., Inc. v. Stevenson, 622 S.W.3d 273, 277 (Tex. 2021). Under those cases, “[t]he test to determine whether a worker is an employee rather than an independent contractor is whether the employer has the right to control the progress, details, and methods of operations of the work.” Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex. 2002). An employee may have more than one employer within the meaning of the TWCA and each employer may raise the exclusive remedy provision as a bar to the employee’s claims. See Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 143, 148 (Tex. 2003); see also Garza, 161 S.W.3d at 476.

In Wingfoot and Garza, the injured worker was employed by a temporary employment agency (general employer), which agreed to provide another company (client company) with temporary workers. The injured worker sustained a work-related injury while working on the premises of the client company. Wingfoot, 111 S.W.3d at 135; Garza, 161 S.W.3d at 474. In Wingfoot, the supreme court held that the exclusive remedy provision applied to a general employer because the injured worker and the general employer fell within the respective definitions of “employee” and “employer” under the TWCA. 111 S.W.3d at 149. In Garza, the undisputed evidence established that at the time the worker was injured, he was working on the client company’s premises, in the furtherance of the client company’s day-to-day business, and the details of the work that caused his injury were specifically directed by the client company. 161 S.W.3d at 177. Thus, the client company was the employer of the injured worker for the purposes of the exclusive remedy provision. Id.

*5 In this case, there is no dispute as to whether Kaplowitz was an employee or independent contractor. The dispute centers on which entity employed Kaplowitz. The documents attached to Defendants’ motion for summary judgment do not conclusively establish that Kaplowitz was employed by LST or by both LST and Lone Star at the time of the injury. The hiring packet signed by Kaplowitz lists Lone Star as her employer. The only documents relied on by Defendants that could reflect LST and Lone Star as Kaplowitz’s employers are the assignment and assumption agreement and the injury report filled out by Alvillar. In contrast, the record reflects that Lone Star alone was Kaplowitz’s employer, and LST did not assume Lone Star Tan, Ltd.’s obligations until two years after Kaplowitz was injured. Because there is conflicting evidence in the summary-judgment record, Defendants have not conclusively proved that Kaplowitz was employed by LST or by both Lone Star and LST.

The summary judgment evidence also includes a workers’ compensation insurance policy listing the insured as LST. The policy also does not list the premises on which Kaplowitz was working when she was allegedly injured. Lone Star and LST assert they have established they were both named insureds on the policy, which provided workers’ compensation insurance coverage invoking the TWCA. Under that argument, even if LST was not Kaplowitz’s employer the exclusivity defense would apply.

The record reflects that the policy lists the “Insured” as LST at 5949 Sherry Lan, Suite 560 in Dallas, Texas:

Directly beneath the designation of the insured is a notation, “Other workplaces not shown above: See Extension of Information Page.” The Extension of Information Page contains a list of salons in Texas and Utah as workplaces for LST as the named insured. One workplace in Texas lists Lone Star as the named insured:

Defendants concede that the location at 4815 Braker Lane in Austin, Texas is not the location where Kaplowitz worked and was injured.

Instead, Defendants rely on two other provisions in the policy for the proposition that the workers’ compensation policy covers all LST and Lone Star locations in Texas and Utah. Those provisions are:

B. Who Is Insured

You are insured if you are an employer named in Item 1 of the Information Page. If that employer is a partnership, and if you are one of its partners, you are insured, but only in your capacity as an employer of the partnership’s employees.

E. Locations

This policy covers all of your workplaces listed in Items 1 or 4 of the Information Page; and it covers all other workplaces in Item 3.A. states unless you have other insurance or are self-insured for such workplaces.

There is no allegation that LST and Lone Star are partners. Moreover, the policy reflects that Item 3.A. of the policy lists Texas and Utah as the states it includes.

In Defendants’ motion for rehearing, they assert that, reading section E above, the policy covers all locations in Texas for both LST and Lone Star regardless of the list of workplaces with designated named insureds of either LST or Lone Star.

An insurance policy is a contract, generally governed by the same rules of construction as all other contracts. RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 118 (Tex. 2015). When construing a contract, we consider the entire writing, harmonizing and giving effect to all the contract provisions so that none will be rendered meaningless. Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc., 473 S.W.3d 296, 305 (Tex. 2015). No single provision taken alone is given controlling effect; rather, each must be considered in the context of the instrument as a whole. Id. We strive to give effect to all of the words and provisions so that none is rendered meaningless. See Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd’s London, 327 S.W.3d 118, 126 (Tex. 2010).

*6 In this case, if we accept Defendants’ assertions on rehearing, portions of the policy would be rendered meaningless. If the policy was intended to cover all locations in Texas for both entities, then the listing of individual workplaces and different named insured entities would be rendered meaningless. Moreover, the portion of the policy Defendants assert provides coverage for both entities and all locations contains the qualifying phrase, “unless you have other insurance or are self-insured for such workplaces.”

The undisputed evidence establishes that at the time Kaplowitz was injured she was working on the premises located at 5001 183A Toll Road, Cedar Park, TX 78613, an address not listed on the workers’ compensation policy and not the address listed with Lone Star as the named insured. The record does not reflect a partnership between LST and Lone Star. While Lone Star and LST argued they were co-employers and were both workers’ compensation subscribers, the record does not conclusively establish those facts. The record further does not conclusively establish that all tanning salons in Texas were covered under the policy.

The summary judgment evidence established a genuine issue of material fact as to whether Kaplowitz’s employer was covered by workers’ compensation insurance. Defendants, therefore, failed to conclusively establish their affirmative defense of the exclusive remedy doctrine as a matter of law. See Warnke, 358 S.W.3d at 343 (exclusive remedy doctrine is triggered by conclusive evidence that injured worker was an employee at the time of the work-related injury, and the employer was covered by workers’ compensation insurance). We sustain Kaplowitz’s second issue.

III. The trial court did not err in granting summary judgment on Kaplowitz’s claim of intentional infliction of emotional distress.

In Kaplowitz’s third issue she asserts the trial court erred in dismissing her IIED claim based on the allegations in her petition. Defendants argued in their motion for summary judgment that Kaplowitz could not recover on her IIED claim because the gravamen of her complaint could be addressed by another common-law tort. Defendants further asserted that Alvillar’s alleged conduct was not extreme or outrageous as a matter of law.

Earlier we discussed one exception to the TWCA’s coverage—the exclusivity defense. This issue implicates another exception, the “intentional tort” exception. Under that exception, the TWCA does not bar recovery for intentional torts attributable to the employer. GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 609 (Tex. 1999).

To prevail on a claim for IIED, a plaintiff must prove that: (1) the defendant acted intentionally or recklessly; (2) the conduct was extreme and outrageous; (3) the actions of the defendant caused the plaintiff emotional distress; and (4) the resulting emotional distress was severe. Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006); Dworschak v. Transocean Offshore Deepwater Drilling, Inc., 352 S.W.3d 191, 197 (Tex. App.—Houston [14th Dist.] 2011, no pet.). A plaintiff’s emotional distress must be the “intended or primary consequence of the defendant’s conduct.” Bruce, 998 S.W.2d at 611.

To be extreme or outrageous, conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 611–12. Meritorious claims for IIED are “relatively rare” because “most human conduct, even that which causes injury to others, cannot be fairly characterized as extreme and outrageous.” Suberu, 216 S.W.3d at 796 (citing Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 815 n.1 (Tex. 2005) (citing cases in which conduct was found not to be extreme and outrageous)). It is for the court to determine, in the first instance, whether particular conduct has met this high standard. Bruce, 998 S.W.2d at 616. Generally, insensitive or even rude behavior does not constitute extreme and outrageous conduct. Id. at 611–12. Similarly, mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities do not rise to the level of extreme and outrageous conduct. Id. Except in circumstances bordering on serious criminal acts, even claims stemming from heinous acts rarely have merit as intentional infliction claims. Jackson, 157 S.W.3d at 818. It is the severity and regularity of abusive and threatening conduct that brings it “into the realm of extreme and outrageous conduct.” Bruce, 998 S.W.2d at 617.

*7 “Emotional distress includes all highly unpleasant mental reactions such as embarrassment, fright, horror, grief, shame, humiliation, and worry.” Id. at 618; see also Havens v. Tomball Cmty. Hosp., 793 S.W.2d 690, 692 (Tex. App.—Houston [1st Dist.] 1990, writ denied). Severe emotional distress is distress that is so severe that no reasonable person could be expected to endure it. Bruce, 998 S.W.2d at 618.

IIED is a gap-filler tort that was “judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.” Hoffman–La Roche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004); see also Waffle House, Inc. v. Williams, 313 S.W.3d 796, 808 (Tex. 2010) (IIED provides remedy where other traditional remedies not available). It was “never intended to supplant or duplicate existing statutory or common-law remedies.” Jackson, 157 S.W.3d at 816.

Where the gravamen of a complaint is covered by another common-law or statutory tort, IIED is not available. Zeltwanger, 144 S.W.3d at 447; see also Louis v. Mobil Chem. Co., 254 S.W.3d 602, 608 (Tex. App.—Beaumont 2008, pet. denied) (“Where the gravamen of the complaint is really another tort, intentional infliction of emotional distress is unavailable even if the evidence would be sufficient to support a claim for intentional infliction of emotional distress in the absence of another remedy.”). “Even if other remedies do not explicitly preempt the tort, their availability leaves no gap to fill.” Jackson, 157 S.W.3d at 816. A plaintiff cannot maintain a claim for IIED “regardless of whether he ... succeeds on, or even makes” the precluding claim. Zeltwanger, 144 S.W.3d at 448; see also Garcia v. Shell Oil Co., 355 S.W.3d 768, 775–76 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“This is true even if plaintiff does not assert the precluding claim in her petition ... or asserts the displacing claim but does not prevail ...”).

Because Kaplowitz’s claim of IIED depends on the conduct alleged in her claims of negligence, she has another remedy. Where, as here, other tort claims are potentially available there is simply no gap to fill and a plaintiff cannot maintain her claim for IIED regardless of whether she succeeds on, or even makes, the precluding claim. See Zeltwanger, 144 S.W.3d at 448.

Kaplowitz argues that the Rules of Civil Procedure permit alternative pleading, therefore permitting her to plead IIED and negligence claims asserting harm from the same conduct. See Tex. R. Civ. P. 48 (permitting claims to be pleaded in the alternative). The problem with this argument is that Kaplowitz cites the very same conduct as causing her distress as part of her negligence claims. Kaplowitz has a common-law remedy for Alvillar’s alleged actions and her IIED claim fails because it is a gap-filler tort and there is no gap to fill. The trial court did not err in granting summary judgment on this claim. See Hoffmann–La Roche, Inc., 144 S.W.3d at 447. Because Kaplowitz’s IIED claim fails as a gap-filler tort we need not address whether Kaplowitz showed Alvillar’s conduct was extreme and outrageous as a matter of law. We overrule Kaplowitz’s third issue.

CONCLUSION

*8 We affirm the trial court’s summary judgment on Kaplowitz’s IIED claim. Having sustained Kaplowitz’s first and second issues, we reverse the trial court’s summary judgment on grounds of the exclusivity defense and remand for proceedings consistent with this opinion.

Footnotes

1

Kaplowitz initially filed suit against Palm Beach Tan, but later amended her petition as Palm Beach Tan was not her or Alvillar’s employer.

2

The Texas Supreme Court ordered the Third Court of Appeals to transfer this case to our court. Under the Texas Rules of Appellate Procedure, “the court of appeals to which the case is transferred must decide the case in accordance with the precedent of the transferor court under principles of stare decisis if the transferee court’s decision otherwise would have been inconsistent with the precedent of the transferor court.” Tex. R. App. P. 41.3.

Court of Appeals of Texas, Houston (14th Dist.).

ALLEYTON RESOURCE COMPANY, A/K/A SUMMIT MATERIALS, LLC A/K/A ALLIED CONCRETE MATERIAL, Appellant

v.

JOSEPH BALL, Appellee

NO. 14-19-00816-CV

|

Opinion filed June 3, 2021

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Cause No. 17-DCV-241655

Panel consists of Justices Bourliot, Zimmerer, and Spain (Spain, J. concurring without opinion).

MEMORANDUM OPINION

Jerry Zimmerer Justice

Affirmed and Memorandum Opinion filed June 3, 2021.

After appellee Joseph Ball’s employment with appellant Alleyton Resource Company, A/K/A Summit Materials, LLC, A/K/A Allied Concrete Material (“Alleyton”) was terminated, Ball sued Alleyton, claiming that Alleyton terminated his employment in retaliation for filing a workers’ compensation claim. A jury found in Ball’s favor and Alleyton appeals from a final judgment signed following the jury trial. Finding no error, we affirm.

BACKGROUND

Alleyton operates a concrete business. Appellee Joseph Ball started working for Alleyton in 2008 as a concrete mixer-truck driver. According to Henry Perry, Ball’s supervisor, Ball was a hard worker and a good employee for Alleyton.

It is undisputed that Ball was injured while working on September 1, 2015. Ball reported his injury to Alleyton and he filed a workers’ compensation claim. Ball also hired an attorney to handle his workers’ compensation claim. Ball received medical treatment and then workers’ compensation benefits starting in December 2015. Ball was then released to return to light-duty work. According to Ball, he did tickets documenting the delivery of loads of concrete by other drivers. Ball was released to return to full duty with no restrictions on January 15, 2016.

Although in pain from his work-related injury, Ball worked consistently after his release back to full duty. According to Ball, he told his employer that he was hurting as a result of his on-the-job injury, but he was showing up at work and doing his best, because he needed to provide for his family. Ball was always clear that he was working through the pain, but he could do his job.

In January or February of 2016, Stephen Gardner, Alleyton’s Safety Director, told Erin Anderson, Alleyton’s Director of Human Resources, that Ball “was talking about being in severe pain and having problems doing his job without assistance; and he asked me what options we might have to be able to help him out.” Anderson testified that, as a result of this conversation, she and Gardner went to a job site to talk to Ball. Anderson testified that she offered Ball an unpaid leave of absence or short-term disability as options. Ball responded that he was not interested in either option, that he wanted to keep working because he needed the money. In the recorded conversation found in Plaintiff’s Exhibit 2, Ball states he asked if Alleyton had any other potential jobs for him, Gardner and Anderson said that they would get back to him, but they never did.

From the date Ball was released to return to work without any restrictions until the date he was terminated, Ball did not receive any write-ups, incident reports, or disciplinary actions. Perry admitted that Alleyton’s rules required him to document any performance issues he observed Ball having, and to then report those issues to the human resources department.

Lisa Thomas worked as Alleyton’s Safety Administrator. Thomas reported to Gardner. Thomas testified that she was familiar with Alleyton’s “safety guidelines, standards, and principles.” Thomas was also familiar with the industry’s standards for job site safety programs, including safety-related discipline, and how an employer should treat employees seeking workers’ compensation benefits. Thomas identified the safety rules that Alleyton’s parent company, Summit Materials, expected Alleyton to follow. According to Thomas, to ensure effective compliance with safety rules by employees, Alleyton’s discipline program should be: (1) communicated, (2) progressive, (3) fairly applied, (4) consistently enforced, and (5) documented. Thomas agreed that it was important for both Alleyton’s employees and its supervisors to follow these rules. Thomas testified that the rules she identified applied whether there was a safety issue, a job performance issue, or a disciplinary issue. According to Thomas, an employer should treat employees who file workers’ compensation claims fairly, should not discriminate against them, and should never retaliate against them for seeking workers’ compensation benefits.

Thomas also testified that her job required her to coordinate treatment and return-to-work plans for injured workers. In addition she had to maintain complete, accurate, and timely workers’ compensation files for each injured employee. Thomas also made regular reports to Alleyton’s senior management regarding workers’ compensation claims. Thomas served as Alleyton’s point of contact with Alleyton’s workers’ compensation insurance company. Thomas is required to review and maintain any workers’ compensation files so she knows what is going on with that employee’s claim. She is also responsible for making certain the files are accurate. Thomas works with the adjustors at Alleyton’s insurance company and she listens to them and responds when they communicate with her. Thomas then reports that information to Gardner and others at Alleyton. One of those files was a claims diary for Ball’s worker’s compensation claim.

Gardner agreed that Alleyton’s safety rules applied any time there was a safety-related issue, including terminations. Gardner also agreed that part of the purpose of the rules is to “confirm that an employer like Alleyton is being honest about the reason for termination and not attempting to conceal some other action like retaliation[.]”

Ball’s claims diary shows that his workers’ compensation attorney notified Alleyton’s insurance adjustor on September 20, 2016 that he disagreed with, and would dispute, the workers’ compensation doctor’s decision that Ball had reached Maximum Medical Improvement and was fit to return to work without restrictions on September 18, 2016. That same day, the diary shows that Thomas called the adjustor requesting an update on Ball’s claim. An October 7, 2016 entry in Ball’s claims diary reflects that Ball had received new medical treatment for his on-the-job injury, and that the new doctor had determined that Ball had not reached Maximum Medical Improvement and would not do so until on or about December 6, 2016.

On October 11, 2016, Ball’s worker’s compensation attorney requested a Benefit Review Conference (“BRC”) with the Texas Department of Insurance, Division of Workers’ Compensation. A BRC is the start of formal proceedings in administrative courts addressing workers’ compensation claims. Ball’s attorney notified the agency that his efforts to resolve Ball’s claim with Alleyton’s workers’ compensation insurance company had failed because of a dispute over Ball’s recovery from his on-the-job injury. The adjustor and Thomas then had extensive discussions about Ball’s request for a BRC on October 14, 2016. According to the adjustor, Alleyton was having performance issues with Ball and was considering terminating him. Alleyton was asking the adjustor to refer Ball’s file to Alleyton’s local attorney. Thomas testified that she did not recall any of these discussions.

On October 12, 2016, Perry, Ball’s supervisor, filmed Ball working at a job site. One of the videos shows Ball walking the three parts of the mixer truck’s chute along the ground around to the back of the truck. The video showed that Ball was moving slowly, but Anderson, the human resources director, testified Ball was not terminated because he did his job slowly.1 Perry testified that he believed Ball’s method of moving the chutes was unsafe because Alleyton teaches the drivers to carry each chute piece on their shoulder. Perry explained that Ball’s method was unsafe because if “he would mess around, trip and fall, he would fall on the chute.” The second video shows Ball rinsing the concrete off the truck after he had unloaded the concrete. According to Perry, Ball did not perform this task in the proper manner. Perry did not testify that Perry’s method for rinsing down the truck was unsafe. Perry instead testified that Ball’s method was too slow because it takes “away from production.” In Perry’s view, Ball’s pace reduced the number of times he could return to the plant and reload his truck.

Perry testified that, out of concern that Ball could get injured on a jobsite, he offered him another job working upstairs as “a backup batch man.” According to Perry, Ball was not interested in the job because he could not walk up the stairs. Ball testified that Perry did not offer him a job, but instead hinted at one. Ball also denied rejecting the job because he could not walk up the stairs. Instead, according to Ball, he told Perry he would have to consider the whole situation, but he did not have the time at that point for further discussion because he was leaving the plant with another load.

At that point, Perry took his videos to Brad Bowman, the Vice President of Ready-Mix for Alleyton, and Perry’s boss. Perry explained that he did so out of concern that Ball was going to hurt himself. According to Perry, Bowman was also concerned that Ball was going to hurt himself. Bowman then discussed the possibility of terminating Ball. Perry denied that he had any involvement in any meetings, discussions, or decisions related to Ball’s employment. Bowman took Perry’s videos to Anderson in human resources. Anderson testified that she in turn took the videos to Gardner. Gardner, however, testified that Perry showed him the videos.

Ball reported slipping and falling while on the job two days after Perry videoed his work. Gardner investigated the reported fall. Gardner asked Ball about seeing a doctor, questioned Ball about the doctors he had been seeing, and the medications Ball was taking. Ball told Gardner that he fell, but suffered no injury. Ball then told Gardner that he was always hurting on the job as a result of his previous on-the-job injury. When Gardner asked if Ball wanted to see a doctor about the “re-aggravation” of his injury, Ball once again denied that he had been injured or aggravated his previous injury when he fell that day.

The Alleyton witnesses during the trial each told different versions of how the decision was reached to terminate Ball. Anderson testified that once Perry’s videos made their way to the Alleyton office, there were various discussions concerning what to do about Ball. According to Anderson, there was no one meeting in which everyone involved in the termination decision participated. Anderson testified that Perry talked to Bowman, Bowman talked to her, and she talked to Gardner. While Anderson testified the same decision resulted from each of those conversations, Bowman testified that he, Anderson, and Gardner “got back together and talked about it a little bit; and that’s when we agreed that it would be best to part ways with Mr. Ball.” According to Bowman, the decision to terminate Ball was a collective decision motivated out of concern “about the safety of Mr. Ball going forward.” Gardner on the other hand claimed that he ultimately participated in the termination meeting “[j]ust to be there” and to serve as a witness. Gardner also testified that Perry agreed Ball needed to be terminated. Perry, however, testified that he had “absolutely no involvement” in discussions concerning whether Ball should be fired. According to Perry, he did not remember if he was even asked the question. Perry testified that if there was testimony that he agreed with the decision to terminate Ball, that would be a false statement.

Bowman testified about factors that are weighed when Alleyton management was deciding whether to terminate an employee. The only factor Bowman mentioned was “additional cost on the company.” Bowman, however, denied that costing the company money was a factor in the decision to terminate Ball. Bowman also testified to the speed at which ready-mix loads need to be delivered to a work site. According to Bowman, ready-mix loads are perishable. He explained the general rule of thumb is that a driver has about 90 minutes to transport the load to a job site and pour it. Failure to timely deliver a load could result in Alleyton’s customer rejecting the load and sending it back, forcing Alleyton to replace the load at its own cost. According to Bowman, it costs Alleyton about $90.00 an hour, or a $1.50 a minute, to operate a ready-mix truck.

Gardner was asked about Alleyton’s workers’ compensation insurance. Gardner testified it is a high-deductible plan and he believed the deductible amount is $500,000. He then agreed that, because of that high deductible, the money for Ball’s workers’ compensation medical treatment and other benefits was coming out of Alleyton’s pocket.

On October 14, 2016, Anderson and Gardner terminated Ball. Anderson testified that Alleyton’s management decided to terminate Ball because “he was unable to perform the essential functions of his job.” Anderson further testified that she told Ball “why he was being terminated at that meeting.” Anderson admitted during trial that all she told Ball during the termination meeting was that he was not a “good fit.” Anderson characterized Ball as very “combative,” and told the jury “I was not going to spend my afternoon arguing with somebody that we had decided to terminate.”

Ball recorded the termination meeting. The recording was played for the jury during the trial. During the meeting, after he was told that he was being fired because it was “in the best interest of everybody,” Ball kept asking for a reason that he was being fired. Gardner and Anderson repeatedly refused to explain why Ball was being fired beyond that it was the best thing for Alleyton. Anderson promised that she would try to give Ball documentation explaining the reason for termination at a later time. Anderson and Alleyton never provided any termination documentation to Ball. In addition, Anderson did not complete Alleyton’s own termination form until several days later.

Ball testified that Gardner and Anderson did not give him a reason, but simply said that they were terminating him. According to Ball, Anderson stated “there is no reason. It was in their best interest, but there was no reason.” Ball also told the jury: “I am still baffled today about the reason.” Ball testified that Alleyton never gave him any type of documentation or paperwork explaining why he was terminated. Ball also testified that, prior to October 14, 2016, Alleyton had not given him any documented “write-ups” related to any performance or safety issues.

Thomas testified that “ideally,” Ball should have been told on October 14, 2016 why he was being terminated. Thomas continued that Alleyton should tell an employee why a disciplinary action or termination occurred so that there is no misunderstanding between the parties. Thomas agreed that honesty was important, in part, because it protects everyone involved. Thomas, during her trial testimony, could not think of a reason why Alleyton would not tell an employee who was being terminated for a safety violation the reason he or she was being fired.

Thomas explained that by “progressive,” the Alleyton rules mean that discipline needs to come in steps. According to Thomas, Alleyton expects that when there is a progression or pattern of safety issues, they should be documented in writing close in time to when they occurred. She also believed it was important for those written documents to be communicated to the employee. Thomas agreed that an employer should not, after the fact, change the reasons for a termination. In her opinion, doing so would be acting on a pretext and dishonest. Additionally, Thomas testified that Alleyton’s safety rules should not be selectively enforced. Thomas expressed her view that an employer should never use a pretextual reason to fire an employee.

Thomas testified that documentation is important so “that you have a record to go by” in all disciplinary actions, including terminations. Thomas agreed that without documentation, there is “really no evidence that [the disciplinary action] occurred.” Thomas further agreed that the purpose of the communication and documentation rules was that they were “a way of confirming that everyone is acting honestly.”

Perry agreed that employees like Ball deserved honest communication about reasons for discipline or termination. Perry testified that an employer should never hide its reasons for terminating an employee, and it should never change its reasons for termination after the fact.

Gardner also agreed that there was no legitimate business reason for an employer to hide a termination for job performance issues causing safety problems. Gardner was asked whether “progressive discipline, giving verbal warnings, written warnings things like that, would have been appropriate in Mr. Ball’s case?” Gardner replied that it “[m]ay have helped.” But, in the ten months Ball worked after he was released back to full duty, he was never disciplined, and no performance issues were documented.

Alleyton, on its “Employee Separation Form,” checked the box “Discharge– Job Performance,” under the column “Involuntary Separation.” There is a blank where comments could be added explaining the “final incident,” but that space was left empty. There was also an instruction to “attach documentation if necessary,” but no documents were attached. Anderson testified that the Employee Separation Form correctly identified the basis for Ball’s termination. But, conversely, Bowman testified that Alleyton “did not terminate him for performance reasons.” Bowman continued that job performance was not the reason Ball was terminated because “Mr. Ball did his job well.”

Most of the testimony criticizing Ball’s work performance concerned the slow pace at which he worked. On appeal, Alleyton cites safety as a reason for Ball’s termination. Perry and Bowman did criticize Ball’s handling of the chute in one of Perry’s videos, but that is the only specific safety problem identified by any Alleyton witness. Anderson, the person who actually fired Ball, testified that Ball was not terminated for safety reasons. When asked if anyone at Alleyton told Ball he had been terminated for safety reasons, Anderson specifically testified that Ball was not “terminated based on safety reasons.” Anderson then agreed that was “not an honest claim that the jury should even consider.”

After he was fired, Ball applied for numerous jobs. In addition, he talked to numerous people about jobs, started a Career Builder account, and a Monster account. Ball admitted that it was “tough to find a job as a mid-forties guy looking for work.” After searching for nearly a year, Ball found two part-time jobs as a bus driver. Ball testified that he is now making half or less of the income that he made while working for Alleyton.

Ball filed suit alleging Alleyton violated section 451.001 of the Texas Labor Code when it terminated his employment. See Tex. Lab. Code Ann. § 451.001 (prohibiting an employer from discharging or otherwise discriminating against an employee because that employee filed a workers’ compensation claim in good faith or instituted or caused to be instituted in good faith a proceeding under the statute). The case went to trial before a jury and the jury returned a verdict in Ball’s favor. The trial court then signed a judgment in favor of Ball. The judgment ordered that Ball recover from Alleyton (1) $956,187.00 in actual damages, (2) $750,000 exemplary damages, (3) prejudgment and post-judgment interest, and (4) taxable costs of court. Alleyton filed a Motion for Judgment Notwithstanding the Verdict, for New Trial, or for Remittitur, which the trial court denied by written order. This appeal followed.

ANALYSIS

I. Sufficient evidence supports the jury’s finding that Alleyton violated section 451.001 of the Texas Labor Code.

Alleyton argues in its first issue that the admissible evidence is factually insufficient to support the jury’s finding that Alleyton terminated Ball because he had instituted a proceeding under the Texas workers’ compensation statute.2 In its second issue, Alleyton asserts that the trial court abused its discretion when it admitted Plaintiff’s Exhibit 4, the claims diary, into evidence over a hearsay objection. Because these issues are related, we address them together.

A. Standard of review

In reviewing the factual sufficiency of the evidence, we must examine the entire record, considering both the evidence in favor of, and contrary to, the challenged findings. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406– 07 (Tex. 1998); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). When a party challenges the factual sufficiency of the evidence supporting a finding for which it did not have the burden of proof, we may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Barnhart v. Morales, 459 S.W.3d 733, 745 (Tex. App.—Houston [14th Dist.] 2015, no pet.). When a party attacks the factual sufficiency of an adverse finding on which it had the burden of proof, it must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). The amount of evidence necessary to affirm is far less than the amount necessary to reverse a judgment. Id. This Court is not a factfinder. Id. (citing Ellis, 971 S.W.2d at 407). Instead, the jury is the sole judge of the credibility of the witnesses and the weight to afford their testimony. Id. When presented with conflicting evidence, a jury may believe one witness and disbelieve others, and it also may resolve inconsistencies in the testimony of any witness. McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986); Eurecat U.S., Inc. v. Marklund, 527 S.W.3d 367, 383 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We may not, therefore, pass upon the witnesses’ credibility or substitute our judgment for that of the jury, even if the evidence would also support a different result. Eurecat U.S., Inc., 527 S.W.3d at 383. If we determine the evidence is factually insufficient, we must detail the evidence relevant to the issue and state in what regard the contrary evidence greatly outweighs the evidence in support of the verdict; we need not do so when affirming. Id. at 383–84.

When hearsay is admitted over an appropriate objection it has no probative value and should not be considered when evaluating the sufficiency of the evidence. Atkinson Gas Co. v. Albrecht, 878 S.W.2d 236, 242 (Tex. App.—Corpus Christi 1994, writ denied). We therefore must first resolve Alleyton’s second issue challenging the trial court’s admission of Plaintiff’s Exhibit 4, the claims diary, into evidence. The decision to admit or exclude evidence lies within the sound discretion of the trial court. Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). A trial court exceeds its discretion if it acts in an arbitrary or unreasonable manner or without reference to guiding rules or principles. Barnhart, 459 S.W.3d at 742 (citing Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)). When reviewing matters committed to the trial court’s discretion, a reviewing court may not substitute its own judgment for that of the trial court. Id. Thus, the question is not whether this court would have admitted the evidence. Rather, an appellate court will uphold the trial court’s evidentiary ruling if there is any legitimate basis for the ruling, even if that ground was not raised in the trial court. Id. Therefore, we examine all bases for the trial court’s decision that are suggested by the record or urged by the parties. Id.

A party seeking to reverse a judgment based on evidentiary error must prove that the error probably resulted in rendition of an improper judgment, which usually requires the complaining party to show that the judgment turns on the particular evidence excluded or admitted. Id. To determine whether evidentiary error probably resulted in the rendition of an improper judgment, an appellate court reviews the entire record. Id. (citing Interstate Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001)).

B. The trial court did not abuse its discretion when it admitted Plaintiff’s Exhibit 4.

Alleyton argues in its second issue that the trial court abused its discretion when it admitted Plaintiff’s Exhibit 4, the claims diary, because the document was hearsay and Ball did not establish that the exhibit was drafted by Alleyton’s agent. See Tex. R. Evid. 801(e)(2)(D) (providing that a statement is not hearsay if it is offered against a party and it was drafted by an agent or employee of the party). We need not reach the question whether the insurance company adjustor who added notes into Plaintiff’s Exhibit 4 was Alleyton’s agent because we conclude that the exhibit was admissible pursuant to Rule 801(e)(2)(B), which provides that a statement is not hearsay if the statement is offered against a party and that party has manifested that it had adopted or believed the exhibit was true. See Tex. R. Evid. 801(e)(2)(B); Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop Food Stores, Ltd., 337 S.W.3d 846, 856 (Tex. 2011) (stating rule that “where a party has used a document made by a third party in such a way as amounts to an approval of its contents, such statement may be received against him as an admission by adoption”) (internal quotation omitted).

The claims diary, Plaintiff’s Exhibit 4, was produced during discovery by Alleyton. The claims diary identifies Gardner as the “Create User.” Thomas testified that part of her job as Alleyton’s safety administrator was to review and maintain the workers’ compensation files. She further testified that it was her “pattern and practice to make sure that the claims diary was accurate” as best she could. Thomas trusted the adjustors she worked with and trusted them to be accurate in the notes they entered into the claims diary. In addition, Thomas testified that she would have reported any inaccuracies that she found in the claims diary to the adjustor. According to Thomas, Alleyton kept the claims diary as part of its own records regarding employee workers’ compensation claims and she relied on them to report the status of those claims, including Ball’s claim, to Alleyton’s upper management, including Gardner. We conclude that Plaintiff’s Exhibit 4 fits within Rule 801(e)(2)(B) and is therefore not hearsay. See Hernandez v. Zapata, No. 04-19-00507-CV, 2020 WL 3815932, at *6 (Tex. App.—San Antonio July 8, 2020, no pet.) (mem. op.) (concluding that because party produced bank statements and by adopting the bank statements as his own, party manifested an adoption or belief in their truth). We hold the trial court did not abuse its discretion when it admitted Plaintiff’s Exhibit 4 into evidence over Alleyton’s hearsay objection. See id. (“Therefore, the bank statements are not hearsay and were admissible as statements by a party opponent.”). We overrule Alleyton’s second issue.

C. Factually sufficient evidence supports the jury’s finding that Alleyton terminated Ball’s employment because he had instituted a proceeding under the workers’ compensation statue.

In its first issue Alleyton argues that the admissible evidence is factually insufficient to support the jury’s finding that it terminated Ball’s employment in retaliation for instituting a proceeding under the workers’ compensation statute. Alleyton’s sufficiency argument is based, in part, on its contention that Plaintiff’s Exhibit 4, the claims diary, was inadmissible hearsay. We have already rejected Alleyton’s hearsay argument. In addition, when making its sufficiency challenge, Alleyton focuses exclusively on evidence contrary to the jury’s verdict and ignores the evidence supporting the verdict. This, however, is not the standard of review we are required to follow. While we do examine all of the evidence in the record, we are not permitted to reweigh the evidence, pass upon the credibility of the witnesses, or substitute our judgment for that of the jury. This is true even if the evidence could support a different result. Thomas v. Uzoka, 290 S.W.3d 437, 452 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). With this preface, we turn to Alleyton’s sufficiency challenge.

The Labor Code provides, in pertinent part, that a person may not discharge or discriminate against an employee because the employee has: (1) filed a workers’ compensation claim in good faith; (2) hired a lawyer to represent the employee in a claim; or (3) instituted or caused to be instituted in good faith a workers’ compensation proceeding. Tex. Lab. Code Ann. § 451.001. “An employer who violates this statute is subject to a retaliation claim, which constitutes an exception to the traditional doctrine of employment at will found in Texas law.” Kingsaire, Inc. v. Melendez, 477 S.W.3d 309, 312 (Tex. 2015) (internal quotation marks omitted). To prove a retaliatory discharge claim, the employee must show that the employer’s action would not have occurred when it did had the employee’s protected conduct, such as instituting in good faith a workers’ compensation proceeding, not occurred. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005).

Alleyton argues the evidence is insufficient because Ball introduced no direct evidence that Alleyton retaliated against him in violation of section 451.001 of the Labor Code. Ball was not, however, required to prove his claim only through direct evidence. See Kingsaire, Inc., 477 S.W.3d at 312; Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 451 (Tex. 1996) (“Circumstantial evidence, and the reasonable inferences from such evidence, can prove the causal connection.”). Instead, Ball could prove his claim through circumstantial evidence. Kingsaire, Inc., 477 S.W.3d at 312. Such circumstantial evidence may include, but is not limited to, an employer’s expression of a negative attitude toward the employee’s injury, an employer’s discriminatory treatment of the employee compared with similarly situated employees, an employer’s failure to adhere to established company policy, and evidence that the employer’s stated reason for termination was false. Id. In addition, close timing between the employee’s protected activity and the adverse employment action is also relevant circumstantial evidence of a causal link and a retaliatory motive. Salas v. Fluor Daniel Servs. Corp., 616 S.W.3d 137, 146 (Tex. App.—Houston [14th Dist.] 2020, pet. filed).

Having reviewed the evidence, we conclude the evidence is factually sufficient to support the jury’s finding. In arguing to the contrary, Alleyton ignores the evidence in the record supporting the jury’s decision, addresses each category of circumstantial evidence independently, and then asks this court to reweigh the evidence and believe only their witnesses’ testimony. This we cannot do. Thomas, 290 S.W.3d at 452.

Turning to the record evidence, we begin with the claims diary. The claims diary establishes that, at least by September 20, 2016, Alleyton’s workers’ compensation carrier had notified Alleyton, through Thomas, that Ball was disputing the determination that he was at maximum medical improvement and ready to return to work without restrictions, and that he would request a BRC if an agreement had not been worked out by September 16, 2016. Thomas testified that she kept Alleyton’s upper management, including Gardner, informed of what was happening with regard to all workers’ compensation claims. The claims diary also shows there was extensive discussion on October 14, 2016, the same day that Ball was terminated, regarding the status of Ball’s workers’ compensation claim, Ball’s notice to the workers’ compensation carrier that he intended to file a BRC, and Alleyton’s desire to have Ball’s claim file transferred to Alleyton’s local attorney. Based on this evidence, the jury could have reasonably found that Alleyton was aware, when it terminated Ball, that Ball planned to institute a proceeding under the workers’ compensation statute. See Glass v. Amber, Inc., No. 01-00-00589-CV, 2002 WL 31430097, at *4 (Tex. App.—Houston [1st Dist.] Oct. 31, 2002, pet. denied) (“Wrongful discharge is a viable cause of action when an employee is fired once he or she had begun taking steps towards instituting a proceeding for collecting workers’ compensation benefits.”). The jury could have also reasonably determined, based on the claims diary and Thomas’s testimony, that Gardner, Anderson, and Bowman knew this information before they made the decision to terminate Ball. See id. (stating jury could have disbelieved employer’s witnesses and instead believed employer knew about employee’s workers’ compensation claim before firing him). Finally, the jury, based on this evidence, could have reasonably concluded that termination occurred in close temporal proximity to Ball’s decision to request a BRC. See Salas, 616 S.W.3d at 146.

Other evidence in the record establishes that Alleyton expressed a negative attitude toward Ball and treated Ball differently than other employees. This evidence includes Ball’s testimony that Alleyton’s drivers routinely helped each other perform their tasks. According to Ball, the other drivers helped him, because he had helped them in the past. According to Ball, Alleyton had encouraged an “A-team” policy of being a team and encouraging workers to help each other out. But, Perry testified that the same day he videoed Ball working, Perry singled Ball out and prohibited the other drivers from helping him. Perry testified that he “told everyone they needed to go on back and perform their own job and not to help him because he was released to work, so he needed to take care [of] his own job.” Perry, did not testify that Alleyton changed their overall policy of encouraging other workers to help each other out. The jury could also have reasonably concluded that Perry and Gardner demonstrated a negative attitude toward Ball when Perry videoed Ball performing his job, and Gardner went to the job site and watched Perry “up and down” while Perry hosed off his truck.

The jury also heard extensive testimony the jury could have reasonably found demonstrated that Alleyton failed to adhere to its policies when it terminated Ball. See Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 617 (Tex. 2004) (evidence that employer did not follow its policies supported the jury’s finding of a section 451.001 violation). Several Alleyton witnesses testified that Ball was a good worker. They also testified that Alleyton’s policies called for a progressive approach to disciplining employees with each step of the process documented and communicated to the employee. The witnesses also testified that these procedures applied to all disciplinary issues whether they related to safety or job performance problems. The evidence is undisputed that Ball was not “written-up” for any safety or performance issues before or after his on-the-job injury. Yet, when asked about the reason Ball was terminated, Alleyton’s witnesses testified he was terminated because he could not safely perform his job.

The jury could also have reasonably determined that Alleyton’s stated reason for terminating Ball was false. See Cont’l Coffee Prods. Co., 937 S.W.2d at 451 (stating that circumstantial evidence that the purported reason for firing employee was false can establish causal link). The jury viewed Perry’s videos of Ball working and they could have decided that he was performing his work safely, if slowly. In conjunction with this evidence, the jury heard Anderson testify that Ball was not terminated because he worked slowly. The jury could have credited this evidence and believed that Ball’s slowness was not the true reason he was fired, but believed it was the economic cost associated with Ball’s slowness that motivated Alleyton’s decision in part. It could also have found, based on Bowman’s and Gardner’s testimony that the accumulating costs associated with Ball’s workers’ compensation claim, which would now include the cost of an attorney, was a motivating factor in the decision to terminate. Finally, the jury heard the differing versions of how the decision to terminate Ball was reached that were told by Alleyton’s own witnesses, which are detailed above, and it also heard Ball’s recording of the termination meeting. The jury could have reasonably discredited the Alleyton’s witnesses’ testimony explaining that Ball was terminated because he could not safely perform his job and instead believed Ball was terminated because of his ongoing workers’ compensation “issue” as Anderson intimated at the beginning of the recorded termination meeting.

While there was conflicting evidence in the record on the reason Alleyton terminated Ball, the jury was entitled to believe the testimony of one witness and not that of another. Barnhart, 459 S.W.3d at 747. It was also empowered to resolve any inconsistencies in the evidence, including inconsistencies within any witness’s testimony. Id. The fact that the jury resolved any conflicts or inconsistencies in the evidence against Alleyton does not make the evidence factually insufficient. Id. We conclude that the jury’s finding that Alleyton terminated Ball because he had instituted a proceeding under the workers’ compensation act is not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We overrule Alleyton’s first issue.

II. Sufficient evidence supports the jury’s implied rejection of Alleyton’s mitigation of damages affirmative defense.

Question Number 2 of the charge asked the jury to determine Ball’s damages. The question included an instruction that the jury should not include in its “answer any amount that you find Joseph Ball could have earned by exercising reasonable diligence in seeking other employment.” The jury then found that Ball had sustained $164,168.00 in past lost wages and, in reasonable probability, would sustain $675,519.00 in future lost wages. Alleyton argues in its third issue that the evidence is legally and factually insufficient to support the jury’s answers because Ball failed to mitigate his damages. We disagree.

A. Standard of review and applicable law

A wrongfully discharged employee has a duty to mitigate damages. Am. West Airlines, Inc. v. Tope, 935 S.W.2d 908, 915 (Tex. App.—El Paso 1996, writ dism’d). The doctrine of mitigation of damages prevents a party from recovering for damages that could be avoided by reasonable efforts on the part of the plaintiff. Great Am. Ins. Co. v. North Austin Mun. Util. Dist., 908 S.W.2d 415, 426 (Tex. 1995). Reasonable efforts are those that a party can avoid at a trifling expense or with reasonable exertions. Id. The party asserting the affirmative defense has the burden of proving that damages could have been mitigated. See Cook Composites, Inc. v. Westlake Styrene Corp., 15 S.W.3d 124, 135 (Tex. App.—Houston [14th Dist.] 2000, no pet.). Here, Alleyton, as the party raising mitigation of damages as an affirmative defense, bore the burden to prove lack of diligence by Ball and the amount by which the damages were increased because of Ball’s alleged failure to mitigate. Kartsotis v. Bloch, 503 S.W.3d 506, 522 (Tex. App.—Dallas 2016, pet. denied). “Generally, the reasonableness of plaintiff’s explanation for rejecting a job offer, and the adequacy of efforts to mitigate, are fact questions properly left to the jury.” Am. West Airlines, Inc., 935 S.W.2d at 915.

A party attacking the legal sufficiency of the evidence supporting an adverse finding on an issue on which it had the burden of proof must demonstrate that the evidence conclusively establishes all vital facts in support of the issue. Dow Chem. Co., 46 S.W.3d at 241. In conducting a legal-sufficiency review, we consider the evidence in the light most favorable to the challenged finding and indulge every reasonable inference that supports it. Univ. Gen. Hosp., L.P., 403 S.W.3d at 550. The evidence is legally sufficient if it would enable reasonable and fair-minded people to reach the decision under review. Id. at 551. We must credit favorable evidence if a reasonable trier of fact could, and disregard contrary evidence unless a reasonable trier of fact could not. Id. The trier of fact is the sole judge of the witnesses’ credibility and the weight to afford their testimony. Id.

We review the factual sufficiency of the evidence according to the standard of review set forth above in section I(A).

B. Legally and factually sufficient evidence supports the jury’s determination that Ball mitigated his damages.

In making its mitigation argument Alleyton places much emphasis on (1) Ball’s testimony that he could not recall applying for another ready-mix driver job; (2) evidence from its own witnesses that Ball, as a trained ready-mix driver, could have quickly obtained a comparable job with another ready-mix company; and (3) Ball turned down a dispatcher position allegedly offered by Alleyton two months after Alleyton fired him. Because Alleyton ignores the evidence supporting the jury’s damages determination, and the evidence demonstrating Ball’s efforts to obtain employment after he was fired, we disagree.

While Ball may not have applied for ready-mix driver jobs, the jury could have reasonably believed his explanation for why he did not apply for or accept a driver position at another ready-mix company was reasonable. Ball testified, and Alleyton witnesses agreed, that Alleyton offered its drivers a guaranteed forty-hour paid work week, even when the weather prevented work. Ball testified that he investigated other ready-mix companies and his efforts revealed none offering a comparable pay guarantee. Ball testified that he did not believe it was in his family’s best economic interest to accept one of those jobs where he might end up working only a few hours a week. While Bowman testified Alleyton’s competitors did offer a guaranteed paid work week, the jury could have disbelieved his testimony and instead believed Ball’s. In addition, Alleyton has not cited any legal authority requiring that a fired employee, in order to mitigate his damages, must apply for the exact same type of job. Instead, to mitigate damages, a fired employee must make a reasonable effort to seek substantially similar employment. Hertz Equip. Rental Corp. v. Barousse, 365 A.W.3d 46, 58 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). The jury could have reasonably found that Ball, who accepted two commercial driver jobs, did so after he was fired.

We turn next to Alleyton’s assertion that Ball alleged rejection of a dispatcher position at Alleyton establishes he failed to mitigate his damages. It is undisputed that Ball received a text message from an Alleyton phone number stating: “How you doing? Well, I hope. Hey, they got dispatching position open. I don’t know if you want to give it a shot or not.” Ball testified that he did not know who at Alleyton, the company that had recently fired him, sent the text message. So, Ball, seeking more information, texted back “What’s up? Who is this?” Ball explained that he believed the text might be a prank or have been sent in error, and he wanted clarification. Ball testified no one from Alleyton ever responded to his questions. Ball further testified he was suspicious because this same company had fired him for no reason and without offering a different job. Alleyton argues Ball’s response to that text message was inadequate. In Alleyton’s view, Ball’s response equates to rejecting a dispatcher job offer. We disagree this is the only view the jury could have taken of this interaction. We conclude the jury could have reasonably found that Ball made a reasonable effort in response to the Alleyton text message. Am. West Airlines, Inc., 935 S.W.2d at 915; Azar Nut Co. v. Caille, 720 S.W.2d 685, 688 (Tex. App.—El Paso 1986), aff’d 734 S.W.2d 667 (Tex. 1987) (“There was evidence in the record concerning the sincerity of the job offer, and it was properly up to the jury to resolve whether or not the Appellee had a reasonable explanation for rejecting the job offer.”).

Finally, Alleyton minimizes the evidence demonstrating that Ball applied for numerous jobs after he was fired and eventually accepted two part-time driving jobs making half or less of his pay at Alleyton. The jury could have reasonably found that these efforts by Ball to find other employment were sufficient to mitigate his damages. Am. West Airlines, Inc., 935 S.W.2d at 915.

We conclude the evidence is legally and factually sufficient to support the jury’s implied rejection of Alleyton’s mitigation of damages affirmative defense. We overrule Alleyton’s third issue.

III. Sufficient evidence supports the jury’s exemplary damages award.

Alleyton asserts in its fourth issue that Ball failed to offer legally sufficient proof that Alleyton acted with malice when it terminated Ball.3 Ball responds that under the charge that was submitted to the jury without objection, sufficient evidence supports the exemplary damages awarded by the jury. We agree with Ball.

Here, Question No. 3 of the charge asked the jury: “Do you find, by clear and convincing evidence that the harm, if any, to Joseph Ball resulted from the malice or gross negligence of Alleyton Resource Company?” Question No. 4 asked the jury “What sum of money, if any, should be assessed against Alleyton Resource Company and awarded to Joseph Ball as exemplary damages, if any, for the conduct found in response to Question 1 and 3?” Alleyton did not object to either question. We therefore measure the sufficiency of the evidence against the charge actually given to the jury. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). Alleyton does recognize this rule when, in a footnote, it states that the charge did instruct the jury that gross negligence could support exemplary damages. It then ignores the fact that the jury could have based its exemplary damages award on a finding that Alleyton was grossly negligent when it fired Ball in retaliation for initiating in good faith a workers’ compensation proceeding. We therefore may affirm the jury’s exemplary damages award if there is sufficient evidence that Alleyton was grossly negligent when it terminated Ball regardless of whether sufficient evidence supports a malice finding. See Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001) (in a tortious interference with contract case stating that legal sufficiency analysis must be made “in light of the jury charge that the district court gave without objection”); City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000) (stating that when no objection was made to jury instruction, evidence to support a finding based on the instruction should be assessed “in light of” the instruction given).

Question No. 3 instructed the jury that

“Gross negligence” means an act or omission by Alleyton Resource Company,

1. which when viewed objectively from the standpoint of Alleyton Resource Company at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

2 of which Alleyton Resource Company has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

In addition, the jury was instructed that, in order to find Alleyton was grossly negligent, it must find that Alleyton was acting through a person employed by Alleyton as a vice principal who was acting in the course and scope of employment. Finally, the jury was instructed that a vice principal includes a corporate officer, a person who has the authority to employ, direct, and discharge an Alleyton employee, or a person charged with the management of a department or division of Alleyton’s business.

Therefore, under the charge given to the jury and our standard of review, the evidence is legally sufficient to support exemplary damages if, when considering the entire record, evidence exists that is capable of producing a firm belief or conviction that Alleyton acted with gross negligence when it retaliated against Ball because he exercised his right to institute in good faith a proceeding under the Workers’ Compensation Act. See Ancira Enterprises, Inc. v. Fischer, 178 S.W.3d 82, 93–94 (Tex. App.—Austin 2005, no pet.) (examining sufficiency of the evidence supporting exemplary damages awarded in an employment discrimination retaliation case).

There is no dispute that the Alleyton employees involved in the decision to terminate Ball—Anderson, Gardner, and Bowman—qualify as vice principals as defined in the jury charge. These witnesses, along with Thomas, who reported directly to Gardner, testified to an awareness that terminating an employee in retaliation for instituting in good faith a proceeding under the Workers’ Compensation Act was not only against Alleyton’s policies, but also violated the law. We conclude this evidence would enable a reasonable juror to infer a firm belief or conviction that Alleyton was subjectively aware that retaliating against Ball for instituting a workers’ compensation proceeding would violate his legal rights, yet it proceeded with conscious indifference to that risk, and that retaliating against Ball objectively involved an extreme degree of risk of violating Ball’s legal rights. Id. at 95. We conclude the evidence supporting the exemplary damages award is legally sufficient and overrule Alleyton’s fourth issue.

IV. The trial court did not abuse its discretion when it refused to include Alleyton’s requested at-will employment instruction in the jury charge.

In its fifth issue Alleyton argues that the trial court abused its discretion when it refused to submit its requested at-will employment instruction in the jury charge. Alleyton’s requested instruction provided:

You are instructed that, when an employee is hired for an indefinite period of time, the employment relationship may be terminated at will by either party. Under this “at will” rule, the employer may, without liability, discharge the employee for a good reason, a bad reason, or no reason at all. You are further instructed that “Joseph Ball” was an employee at will and that “his employer” could discharge him at any time for any reason, so long as that reason did not violate any law.

Alleyton asserts the trial court abused its discretion because the proposed instruction accurately states the law, was supported by the evidence and pleadings, and, in Alleyton’s view, was reasonably necessary for the jury to render a proper verdict.

A trial court must submit in its charge to the jury all questions, instructions, and definitions that are raised by the pleadings and the evidence. See Tex. R. Civ. P. 278; E.I. DuPont de Nemours & Co v. Roye, 447 S.W.3d 48, 56 (Tex. App.—Houston [14th Dist.] 2014, pet. dism’d) (citing Hyundai Motor Co. v. Rodriguez, 995 S.W.2d 661, 663–64 (Tex. 1999)). The parties have the right to be judged by a jury properly instructed in the law. Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 388 (Tex. 2000). The goal, therefore, is to submit to the jury the issues for decision logically, simply, clearly, fairly, correctly, and completely. Roye, 447 S.W.3d at 56. To achieve this goal, trial courts enjoy broad discretion so long as the charge is legally correct. Id. Determining what jury instructions are necessary and proper is within the trial court’s discretion. Shupe v. Lingafelter, 192 S.W3d 577, 579 (Tex. 2006). When submitting the jury charge, a trial court is afforded more discretion when submitting instructions than when submitting questions. Bexar Cnty. Appraisal Dist. v. Abdo, 399 S.W.3d 248, 257 (Tex. App.—San Antonio 2012, no pet.). When a trial court refuses to submit a requested instruction or definition, the issue on appeal is whether the request was reasonably necessary to enable the jury to render a proper verdict. Eurecat US, Inc., 527 S.W.3d at 380. We review that decision for an abuse of discretion. Shupe, 192 S.W.3d at 579.

Alleyton asked the court to include the proposed at-will employment instruction in the liability question submitting Ball’s section 451.001 retaliation claim to the jury. The question at issue tracked the language of the statute when it asked whether Alleyton discriminated against or terminated Ball because he filed a workers’ compensation claim in good faith, or instituted, or caused to be instituted in good faith a proceeding under the Workers’ Compensation Act. See Spencer v. Eagle Star Ins. Co. of Am., 876 S.W.2d 154, 157 (Tex. 1994) (stating that when submitting statutory cause of action, charge should track language of the statute as closely as possible). The trial court also included in the question an instruction informing the jury that “an employer does not terminate or discriminate against an employee for filing a workers’ compensation claim in good faith or instituting or causing to be instituted a workers’ compensation claim in good faith, if the employer would have terminated the employee when it did even if the employee had not filed workers’ compensation claim in good faith or instituting or causing to be instituted a workers’ compensation claim in good faith.”

Liability under section 451.001 of the Workers’ Compensation Act is an exception to the at-will employment doctrine. Johnson v. Waxahachie Indep, Sch. Dist., 322 S.W.3d 396, 399 (Tex. App.—Houston [14th Dist.] 2010, no pet.). As a result, the trial court could have concluded that the jury question at issue already adequately addressed Alleyton’s right to terminate an employee and might have confused the jury by injecting a definition of the at-will doctrine into a case based on a statutory exception to that very same doctrine. Similarly, the trial court could have reasonably concluded that the requested instruction misstated the law appliable to the facts of the case because the cause of action at issue was a statutory exception to the at-will doctrine. An instruction that misstates the law as applicable to the facts or misleads the jury is improper. Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 617 (Tex. App.—Dallas 2010, no pet.). Accordingly, we conclude the trial court did not abuse its discretion when it refused Alleyton’s proffered instruction. We overrule Alleyton’s fifth issue.

V. Alleyton waived its sixth issue.

Alleyton alternatively argues in its sixth issue that the damages awarded to Ball, except for his past lost wages, are excessive. Alleyton then cites Rule 46.3 of the Texas Rules of Appellate Procedure and a single case, which it asserts stands for the proposition that an appellate court may suggest a remittitur when there is some evidence of damages but not enough to support the full amount. Alleyton’s argument is contained in a single paragraph. It offers no explanation as to why they are excessive based on the record evidence and any applicable legal authority. See Tex. R. App. P. 38.1 (stating that a brief must contain a clear and concise argument for the contentions made with appropriate citations to legal authority and to the record). As such, Alleyton asks this court to search the appellate record for evidence supporting its contention. But, it is an appellant’s burden to discuss his assertions of error, and we have no duty–or even right–to perform an independent review of the record and applicable law to determine whether there is error. Hernandez v. Hernandez, 318 S.W.3d 464, 466 (Tex. App.—El Paso 2010, no pet.); see San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 338 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (holding that “parties asserting error on appeal still must put forth some specific argument and analysis showing that the record and the law supports their contentions”). Therefore, even liberally construing Alleyton’s sixth issue, we cannot conclude that it has adequately briefed this issue. Because of this inadequate briefing, Alleyton has waived its sixth issue. See Tex. R. App. P. 38.1; San Saba Energy, L.P., 171 S.W.3d at 338.

CONCLUSION

Having overruled Alleyton’s issues on appeal, we affirm the trial court’s final judgment.

Footnotes

1

Ball did not deny that he was moving slowly in the video. Ball explained that he was moving slowly because the video was made at about 5:00 p.m., he had started working that day at about three in the morning, and he was tired. Ball went on to explain that his normal work day started at 3:00 a.m. and it would end when they finished the work, which could be anywhere between 4:00 p.m. and 9:00 p.m.

2

Alleyton’s first issue generally asserts that insufficient evidence supports the jury’s finding that it terminated Ball in violation of section 451.001 of the Texas Labor Code. It then went on to specifically argue that, while Ball did introduce evidence supporting the jury’s verdict, the evidence was “thin.” It went on to assert that “the great weight of the evidence demonstrated that Alleyton terminated Ball’s employment for a legitimate business reason: he could no longer safely perform his duties.” Based on Alleyton’s stated standard of review, arguments, and requested relief, we conclude Alleyton’s first issue is limited to a factual sufficiency challenge and address it accordingly. Even if Alleyton’s first issue could be construed as a legal sufficiency challenge, based on the evidence we have summarized above, and Alleyton’s own concession that there is evidence in the record supporting the verdict, we conclude that the evidence is legally sufficient. See Univ. Gen. Hosp., L.P. v. Prexus Health Consultants, LLC, 403 S.W.3d 547, 550 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (stating that when an appellant attacks the legal sufficiency of an adverse finding on an issue on which it did not have the burden of proof, it must demonstrate on appeal that there is no evidence to support the adverse finding).

3

Alleyton specifically argued in its brief that “Ball failed to offer any evidence that Alleyton intended to cause or disregarded an injury distinct from his termination.” Alleyton continued that same argument later in its brief when it asserted that “Ball did not submit any evidence of an independent harm.” Finally, Alleyton concluded this issue by stating that “the trial record does not support an award of exemplary damages.” We construe this as a challenge to the legal sufficiency of the evidence supporting the jury’s exemplary damages award. Alleyton makes no challenge to the actual amount of exemplary damages awarded by the jury.

Court of Appeals of Texas, Houston (14th Dist.).

MICHAEL D. FENLEY, Appellant

v.

TEXAS PLUMBING SUPPLY COMPANY, INC., Appellee

NO. 14-19-00851-CV

|

Opinion filed May 11, 2021

On Appeal from the 164th District Court

Harris County, Texas

Trial Court Cause No. 2018-10944

Panel consists of Chief Justice Christopher and Justices Wise and Hassan.

MEMORANDUM OPINION

Meagan Hassan Justice

Affirmed in Part, Reversed and Remanded in Part, and Memorandum Opinion filed May 11, 2021.

Appellant Michael D. Fenley1 worked for appellee Texas Plumbing Supply Company, Inc. for approximately seven months. After Fenley’s employment was terminated, Fenley sued Texas Plumbing and asserted claims for discrimination and retaliation. The trial court granted Texas Plumbing’s traditional and no-evidence motions for summary judgment and ordered that Fenley take nothing on his claims. For the reasons below, we affirm the trial court’s judgment in part and reverse and remand in part.

BACKGROUND

Texas Plumbing is a wholesale retailer of plumbing supplies with two locations in Houston. In April 2016, Texas Plumbing hired Fenley as an inside salesperson for its southeast Houston store. Fenley was 70 years old when he was hired.

Texas Plumbing terminated Fenley’s employment in November 2016. Fenley filed a charge of discrimination with the Texas Workforce Commission and the Equal Employment Opportunity Commission. Fenley included a personal statement with the charge detailing the alleged discrimination:

[Texas Plumbing] employed me to work in inside sales. In this position I handled calls from customers and prepared orders and price quotes. My immediate supervisor was Steve Anthony. I worked with a group of 4 persons, all of whom were involved in inside sales and reported to Anthony. I was the oldest sales person in my group. Anthony interviewed me for employment. He had known me for about fifteen (15) years or more when we worked together for another unrelated supply house.

On May 20, 2016 I injured myself at work as a result of a fall and broke my finger. I was out for a period of days and returned to work doing inside sales on the date designated by the workman’s comp surgeon selected by the carrier retained by Texas Plumbing Supply. This doctor performed a surgical procedure on my hand, which allowed me to work, but the procedure did not restore my hand to its original condition. When I returned to work after my surgery, [Texas Plumbing] gave me a hard time about my injury. [Texas Plumbing] was upset because I went to physical therapy ordered by its doctor, as well as the time periods I was scheduled to go. [Texas Plumbing] did not like the appointments arranged through workman’s comp personnel and at the direction of the surgeon as those sessions took me away from my work day. Steve Anthony gave me a hard time about this for time missed for therapy which was far from excessive and directed by workman’s comp in an effort to regain use of my hand.

Anthony also made inappropriate comments about my age, both directly and indirectly. The comments were frequent and occurred almost daily: “you work too slow;” ... “you need to pick it up a notch;” “you need to think about another job;” “you are too old for this job;” “I cannot protect you from Glen [Fuller, president of Texas Plumbing].” Anthony is in his 50s, and it is my belief that Fuller is as well.

Anthony was also not pleased with the fact that I had back problems. I have had back problems for about 25 years. I developed back problems when I lifted a water heater. I had surgery. I have an ADA placard but [Texas Plumbing] did not allow me to park in the front of the building. I was told to park on the far side of the building where I could find a place.... [Texas Plumbing] also complained that I would have to go to the doctor once a month to pick up medication for my back, which was also discussed in my initial interview.

After my surgery on June 2nd of 2016, my job responsibilities changed dramatically. I was directed away from my desk job to counter sales upon my return to work. This change necessitated the majority of my time to be spent standing as well as a significant amount of heavy lifting, contrary to the attending physician’s recommendation.

On November 18, 2016, Anthony terminated my employment, telling me that [Texas Plumbing] was experiencing a layoff.... I was the only sales person to be terminated. For several months before I was terminated, Mr. Fuller sent emails to employees informing us that we had attained record sales in 2016. We were very busy. Customer trucks were at the store all the time, waiting to be waited upon.

In February 2018, Fenley sued Texas Plumbing and asserted claims for (1) age discrimination, (2) disability discrimination, and (3) retaliatory and wrongful termination based on Fenley’s filing of a workers’ compensation claim. Texas Plumbing filed traditional and no-evidence motions for summary judgment challenging all Fenley’s claims. See Tex. R. Civ. P. 166a(c), (i). Fenley responded to the motions and produced evidence, including the above-quoted personal statement filed with his charge of discrimination.

Texas Plumbing moved to strike portions of Fenley’s evidence, which the trial court granted in part. On September 26, 2019, the trial court signed an order granting Texas Plumbing’s traditional and no-evidence motions for summary judgment. Fenley timely appealed.

ANALYSIS

On appeal, Fenley challenges the grounds raised in Texas Plumbing’s motions for summary judgment. Because Fenley does not challenge the trial court’s order granting in part Texas Plumbing’s motion to strike, we consider his appellate arguments in light of these evidentiary exclusions. See, e.g., Walker v. Schion, 420 S.W.3d 454, 457-58 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

I. Standard of Review

We review the trial court’s summary judgment de novo. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Where, as here, the trial court’s order granting summary judgment does not specify the grounds on which the trial court relied, we must affirm if any of the asserted grounds are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Collins v. D.R. Horton-Tex. Ltd., 574 S.W.3d 39, 44 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). When a party has filed both a traditional and no-evidence summary judgment motion, we generally review the propriety of the summary judgment under the no-evidence standard first. Patidar v. Bank of Am., N.A., 442 S.W.3d 789, 793 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

In a no-evidence motion for summary judgment, the movant asserts there is no evidence of one or more essential elements of the claims on which the nonmovant would bear the burden of proof at trial. See Tex. R. Civ. P. 166a(i), Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009). The nonmovant then must present more than a scintilla of probative evidence that raises a genuine issue of material fact supporting each challenged element. See Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003). More than a scintilla exists when the evidence would enable reasonable and fair-minded people to reach different conclusions. Burbage v. Burbage, 447 S.W.3d 249, 259 (Tex. 2014). But the nonmovant “is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements.” Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam) (internal quotation omitted).

The movant for a traditional summary judgment must show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. See Tex. R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848. If the movant produces evidence that conclusively establishes its right to summary judgment, the burden of proof shifts to the nonmovant to present evidence sufficient to raise an issue of material fact. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995). When reviewing a traditional summary judgment, we consider all the evidence in the light most favorable to the nonmovant, indulging every reasonable inference and resolving all doubts in the nonmovant’s favor. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

II. Age Discrimination Claim

In his original petition, Fenley asserted an age discrimination claim pursuant to the Texas Commission on Human Rights Act (“TCHRA”). See Tex. Lab. Code Ann. § 21.051.

Under the TCHRA, an employer commits an unlawful employment practice if, because of age, the employer refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment. See Tex. Lab. Code Ann. § 21.051(1); Hudgens v. Univ. of Tex. MD Anderson Cancer Ctr., 615 S.W.3d 634, 641 (Tex. App.—Houston [14th Dist.] 2020, no pet.). These provisions apply to alleged discrimination against an individual forty years of age or older. Tex. Lab. Code Ann. § 21.101. Because the Texas Legislature patterned TCHRA after federal law, our analysis of age discrimination claims looks to state cases as well as to the analogous federal statutes and the cases interpreting those statutes. See Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 633-34 (Tex. 2012); see also Kaplan v. City of Sugar Land, 525 S.W.3d 297, 302 (Tex. App.—Houston [14th Dist.] 2017, no pet.) (“We therefore look to federal law to interpret TCHRA’s provisions.”).

Texas courts “follow the settled approach of the U.S. Supreme Court in recognizing two alternative methods of proof” in cases alleging disparate treatment based on age. Garcia, 372 S.W.3d at 634; see also Hudgens, 615 S.W.3d at 641. First, an employee can offer direct evidence of the employer’s discriminatory actions or words. Garcia, 372 S.W.3d at 634. “Direct evidence of discrimination is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption.” Coll. of the Mainland v. Glover, 436 S.W.3d 384, 392 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (internal quotation omitted). The second alternative entitles the employee to a rebuttable presumption of discrimination if the employee establishes a prima facie case of discrimination. Garcia, 372 S.W.3d at 634; Hudgens, 615 S.W.3d at 641.

Here, Fenley asserts his personal statement constitutes direct evidence of a discriminatory animus based on Anthony’s statements and remarks. On this point, Fenley’s personal statement asserts:

Anthony also made inappropriate comments about my age, both directly and indirectly. The comments were frequent and occurred almost daily: “you work too slow;” ... “you need to pick it up a notch;” “you need to think about another job;” “you are too old for this job;” “I cannot protect you from Glen [Fuller, president of Texas Plumbing].” Anthony is in his 50s, and it is my belief that Fuller is as well.

Anthony denied making these statements in his affidavit included with Texas Plumbing’s traditional motion for summary judgment.

Age-related comments may constitute direct evidence of discrimination if the statements are (1) age related, (2) close in time to the employment decision, (3) made by an individual with authority over the employment decision, and (4) related to the employment decision at issue. McMichael v. Transocean Offshore Deepwater Drilling, Inc., 934 F.3d 447, 457 (5th Cir. 2019); Autozone, Inc. v. Reyes, 272 S.W.3d 588, 593 (Tex. 2008) (per curiam). The comments must be more than mere “stray remarks.” McMichael, 934 F.3d at 457; see, e.g., Lopez v. Exxon Mobil Dev. Co., No. 14-16-00826-CV, 2017 WL 4018359, at *6 (Tex. App.—Houston [14th Dist.] Sept. 12, 2017, pet. denied) (mem. op.) (managers’ comment that employee was “old and stubborn” did not constitute direct evidence of age discrimination).

We recently examined comments similar to those at issue here in Jefferson County v. Davis, No. 14-13-00663-CV, 2014 WL 4262184 (Tex. App.—Houston [14th Dist.] Aug. 28, 2014, pet. denied) (mem. op.). There, the plaintiff-employee presented evidence at trial showing the head of her department repeatedly made ageist comments towards her, including that she was “too old to be working here,” that she “should retire,” and that she “was the next person to go.” Id. at *5-6. Concluding the evidence was legally sufficient to support the jury’s finding that age was a motivating factor in the decision to terminate the plaintiff, we stated that “[a] comment such as ‘you’re too old to be working here’ is a direct and unambiguous statement that would allow a reasonable jury to conclude that age was an impermissible factor in the decision to terminate [the plaintiff].” Id. at *6. Therefore, these statements constituted “direct evidence of a discriminatory animus.” Id. at *5.

Several federal courts also have examined similar ageist remarks and concluded they constituted direct evidence sufficient to satisfy the plaintiff’s summary judgment burden. See Brewer v. New Era, Inc., 564 F. App’x 834, 839 (6th Cir. 2014) (statement from company’s owner’s son that the plaintiffs were “too old” and “needed to retire” was direct evidence that the plaintiffs’ ages were a factor in the decision to terminate their employment); Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201, 1202-03, 1204-05 (11th Cir. 2010) (chief executive’s statements that the plaintiff was “too old to be working here” and that he “need[ed] someone younger” was direct evidence of age discrimination); Barr v. Stripes LLC, No. 4:18-CV-00296, 2020 WL 2576165, at *7 (S.D. Tex. May 21, 2020) (summary judgment burden met because evidence showed the manager called the plaintiff “old man” and “too old” and told him she “want[ed] to replace [him] with a 19-year-old”); and Cristain v. Hunter Bldgs. & Mfg., LP, No. H-16-2462, 2017 WL 2633565, at *4 (S.D. Tex. June 19, 2017) (manager’s statements that the plaintiff was “old and not worth anything” was direct evidence of age discrimination).

Guided by this caselaw, we conclude Fenley’s personal statement constitutes direct evidence of Texas Plumbing’s discriminatory animus with respect to Fenley’s firing. According to Fenley, Anthony told him: “you work too slow;” “you need to pick it up a notch;” “you need to think about another job;” and “you are too old for this job.” Considering this evidence in the light most favorable to Fenley, these statements support the conclusion that age was a factor in Texas Plumbing’s decision to terminate him. See Jefferson Cty., 2014 WL 4262184, at *5-6; see also Brewer, 564 F. App’x at 839; Mora, 597 F.3d at 1202-03, 1204-05; Barr, 2020 WL 2576165, at *7; and Cristain, 2017 WL 2633565, at *4.

The summary judgment evidence also shows that these statements were made (1) close in time to the employment decision, and (2) by an individual with authority over the employment decision. See McMichael, 934 F.3d at 457; Autozone, Inc., 272 S.W.3d at 593. According to Fenley’s personal statement, Anthony’s comments “were frequent and occurred almost daily.” Considering this evidence in the light most favorable to Fenley, it supports an inference that the statements were made close in time to his termination. Anthony’s affidavit also shows he had authority over the employment decision at issue and that he “made the ultimate decision to terminate Mr. Fenley’s employment.” This evidence is sufficient to satisfy Fenley’s summary judgment burden with respect to his age discrimination claim.

Texas Plumbing argues on appeal that it is entitled to the “same-actor inference,” which permits an inference that an employment decision was not motivated by a discriminatory animus when an employee is hired and fired by the same decisionmaker. See Russell v. McKinney Hosp. Venture, 235 F.3d 219, 228 n.16 (5th Cir. 2000) (describing inference). Texas Plumbing points out that Anthony was the same person who hired and terminated Fenley.

Although the “same actor inference” creates a strong inference that discrimination was not a determining factor with respect to a challenged employment decision, “it does not ‘automatically dispose of a plaintiff’s discrimination claim.’ ” Collier v. Indel, Inc., No. H-07-1096, 2008 WL 11389546, at *10 (S.D. Tex. Oct. 17, 2008) (quoting Lockett v. Wal-Mart Stores, Inc., 337 F. Supp. 2d 887, 901 (E.D. Tex. 2004)). Moreover, federal courts have held that the inference may be rebutted by direct evidence of a discriminatory animus. See, e.g., Sampson v. Vita-Mix Corp., No. 17cv233-GPC (BGS), 2018 WL 3064486, at *11 (S.D. Cal. June 21, 2018) (“even if the same actor inference applies, it is rebutted by the direct evidence of discriminatory animus based on racial comments”); E.E.O.C. v. 704 HTL Operating, LCC, 979 F. Supp. 2d 1220, 1232 (D. N.M. 2013) (“The ‘same actor’ doctrine does not apply where an employee proffers direct evidence in support of her Title VII claim.”). Here, considered in conjunction with the direct evidence supporting Fenley’s age discrimination claim, the “same actor inference” does not entitle Texas Plumbing to summary judgment. See Sampson, 2018 WL 3064486, at *11; E.E.O.C., 979 F. Supp. 2d at 1232.

Texas Plumbing also contends Fenley’s age discrimination claim must fail because Fenley “did not show he was replaced by someone outside his protected class.” This argument is premised on one of the elements that must be shown to establish a prima facie case of age discrimination.2 See Garcia, 372 S.W.3d at 642; Jefferson Cty., 2014 WL 4262184, at *2. But this showing need not be made where, as here, the plaintiff produces direct evidence of a discriminatory animus. See Garcia, 372 S.W.3d at 638 (the prima-facie-case framework “allows a plaintiff who lacks direct evidence to raise an inference of discrimination”) (emphasis added); see also Kelly v. Costco Wholesale Corp., 632 F. App’x 779, 782 (5th Cir. 2015) (“If direct evidence of discrimination exists, no further evidence is required.”).

We sustain Fenley’s challenge to the trial court’s summary judgment on his age discrimination claim.

III. Disability Discrimination Claim

In his original petition, Fenley asserted a TCHRA cause of action for disability discrimination and alleged Texas Plumbing (1) treated him less favorably because of his disability, and (2) failed to accommodate his disability. See Tex. Lab. Code Ann. § 21.051. Challenging these allegations in its no-evidence summary judgment motion, Texas Plumbing asserted Fenley could not produce any evidence showing he had a “disability” as defined by the TCHRA.

The TCHRA prohibits discrimination that occurs “because of or on the basis of a physical or mental condition that does not impair an individual’s ability to reasonably perform a job.” Tex. Lab. Code Ann. § 21.105. To establish a prima facie case of discrimination based on disability, a plaintiff must show that he (1) has a disability, (2) is qualified for the job, and (3) suffered an adverse employment decision because of the disability. Rogers v. Houston Cmty. Coll., No. 14-18-00591-CV, 2020 WL 3967944, at *1 (Tex. App.—Houston [14th Dist.] July 14, 2020, no pet.) (mem. op.).

Elements of a claim for an employer’s failure to accommodate a disability overlap to some extent with the elements of a disability discrimination claim. Donaldson v. Tex. Dep’t of Aging & Disability Servs., 495 S.W.3d 421, 439 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). For a failure to accommodate claim, the plaintiff must show (1) he has a disability, (2) an employer covered by the statute had notice of his disability, (3) with “ ‘reasonable accommodations’ ” he could perform the “ ‘essential functions’ ” of his position, and (4) the employer refused to make such accommodations. Id. (quoting Hagood v. Cty. of El Paso, 408 S.W.3d 515, 524 (Tex. App.—El Paso 2013, no pet.)).

A “disability” is defined as “a mental or physical impairment that substantially limits at least one major life activity of that individual, a record of such impairment, or being regarded as having such an impairment.” Tex. Lab. Code Ann. § 21.002(6); accord 42 U.S.C.A. § 12102(1).3 “To be considered a disability, the ‘impairment’s impact must ... be permanent or long-term.’ ” El Paso Cty. v. Vasquez, 508 S.W.3d 626, 639 (Tex. App.—El Paso 2016, pet. denied) (quoting Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002)).

“Major life activity” includes, but is not limited to, physical activities such as “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, [and] bending”. Tex. Lab. Code Ann. § 21.002(11-a); see also Vasquez, 508 S.W.3d at 639. An impairment “substantially limits” a person’s major life activity when he is:

[u]nable to perform a major life activity that the average person of the general population can perform; or [s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.

Datar v. Nat’l Oilwell Varco, L.P., 518 S.W.3d 467, 474 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (citing Tex. Dep’t of Fam. & Protective Servs. v. Howard, 429 S.W.3d 782, 787 (Tex. App.—Dallas 2014, pet. denied)). “To survive summary judgment, a plaintiff must produce evidence demonstrating that his impairment is profound enough and of sufficient duration, given the nature of his impairment, to significantly restrict him in working.” Id.

Here, Fenley asserts his “bad back” and broken finger constitute “disabilities” within the meaning of the TCHRA. But Fenley did not produce the summary judgment evidence necessary to make this showing.

To support his contention that his “bad back” is a disability, Fenley points to the following passage from his personal statement:

Anthony was also not pleased with the fact that I had back problems. I have had back problems for about 25 years. I developed back problems when I lifted a water heater. I had surgery. I have an ADA placard but [Texas Plumbing] did not allow me to park in the front of the building. I was told to park on the far side of the building where I could find a place.... [Texas Plumbing] also complained that I would have to go to the doctor once a month to pick up medication for my back, which was also discussed in my initial interview.

Fenley did not produce any other evidence to substantiate his back problems.

This paragraph from Fenley’s personal statement does not satisfy his summary judgment burden with respect to whether his back problems constitute a “disability” as defined by the TCHRA. Specifically, Fenley did not produce any evidence showing how his back problems “substantially limit[ed] at least one major life activity” or otherwise affected him. See Tex. Lab. Code Ann. § 21.002(6); Datar, 518 S.W.3d at 474. Without this evidence, Fenley did not raise an issue of fact regarding whether his back problems constitute a “disability.” See Tucker v. Unitech Training Acad., Inc., 783 F. App’x 397, 399-400 (5th Cir. 2019) (the plaintiff did not satisfy her summary judgment burden with respect to her disability discrimination claim because she did not produce any evidence showing how her alleged disability “substantially limited a major life activity”); Taylor v. Schwan’s Glob. Supply Chain, No. 4:15-CV-2570, 2016 WL 11547481, at *7 (S.D. Tex. Dec. 7, 2016) (same).

With respect to his broken finger, Fenley’s personal statement asserts the injury occurred at work on May 20, 2016, and required surgery. Fenley also submitted into evidence nine “Texas Workers’ Compensation Work Status Reports” completed with respect to his injury, which outline Fenley’s activity restrictions and follow-up treatment. The final report states that Fenley is permitted to return to work on August 26, 2016 “without restrictions.”

Based on the final work status report, Fenley’s broken finger did not cause any long-term impairment with respect to Fenley’s performance of his job. Fenley did not submit any other evidence showing his broken finger caused any other activity limitations after this date. Therefore, Fenley did not satisfy his burden to produce evidence showing his broken finger constituted a permanent or long-term impairment that substantially limited his performance of a major life activity. See Tex. Lab. Code Ann. § 21.002(6); Vasquez, 508 S.W.3d at 639.

In sum, Fenley did not produce evidence raising an issue of fact with respect to whether his “bad back” or broken finger constitute “disabilities” under the TCHRA. Therefore, Fenley did not satisfy his summary judgment burden on his disability discrimination claim and we overrule his challenge to the trial court’s summary judgment on this claim.

IV. Retaliation for Filing a Workers’ Compensation Claim

Finally, Fenley asserted a workers’ compensation retaliatory discharge claim, contending he “was terminated because he incurred an injury on the job, reported it, and pursued a workers’ compensation claim in good faith.” Specifically, Fenley asserts his employment was terminated because he filed a workers’ compensation claim after he fell at work in May 2016 and broke his finger.

Under Texas Labor Code section 451.001, an employer may not discharge, or in any other manner discriminate against, an employee because that employee has filed a workers’ compensation claim in good faith. See Tex. Lab. Code Ann. § 451.001; Salas v. Fluor Daniel Servs. Corp., 616 S.W.3d 137, 145 (Tex. App.—Houston [14th Dist.] 2020, pet. filed). Claims brought pursuant to section 451.001 are analyzed using a burden-shifting framework under which the plaintiff must first make a prima facie case of retaliation and show: (1) he engaged in a protected activity, (2) he suffered an adverse employment action, and (3) there is a causal connection between the filing of a workers’ compensation claim and his termination. See Salas, 616 S.W.3d at 146; Datar, 518 S.W.3d at 477.

With respect to the “causal connection” prong, the employee need not show his participation in the protected conduct was the sole cause of his discharge; it is sufficient to show that, but for the filing of the claim, “the employer’s action would not have occurred when it did had the report not been made.” Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); accord Salas, 616 S.W.3d at 146. Circumstantial evidence, and reasonable inferences from that evidence, can prove the requisite causal connection. Salas, 616 S.W.3d at 146. Circumstantial evidence sufficient to show a causal link between an employee’s termination and his protected conduct may include: (1) knowledge of the employee’s protected conduct by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Id. “Close timing between the employee’s protected activity and the adverse employment action is also relevant circumstantial evidence of a causal link and of retaliatory motive.” Id. This evidence may be considered when determining whether an employee established a prima facie case as well as for the ultimate issue of whether the employee proved a retaliatory motive for the adverse employment action. Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 67 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

If the employee establishes a prima facie case, the burden shifts to the employer to “rebut the alleged discrimination by showing there was a legitimate reason behind the discharge.” Cont’l Coffee Prods. Co., 937 S.W.2d at 451. If the employer brings forth a legitimate, non-discriminatory reason for the termination, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive to survive a summary judgment motion. Salas, 616 S.W.3d at 146.

Here, we presume without deciding that the summary judgment evidence is sufficient to make a prima facie case of retaliation. The burden then shifts to Texas Plumbing to rebut the alleged retaliation by showing there was a legitimate reason for Fenley’s termination. Addressing this point, Texas Plumbing argues Fenley was terminated because he was Texas Plumbing’s lowest-performing sales person. To support this contention, Texas Plumbing references the following statement from Glenn Fuller’s affidavit:

As president and owner of [Texas Plumbing], I am familiar with its sales and business records and information.... During Mr. Fenley’s employment, sales at the Branch 1 location [where Fenley worked] decreased by 14%, while sales at [Texas Plumbing’s] other locations increased. More specifically, Branch 1 location sales decreased by 3.6 percent in May 2016, by 13.6 percent in June 2016, by 14.5 percent in July 2016, by 19.4 percent in August 2016, by 21.1 [percent] in September 2016, and by 17.4 percent in October 2016. While Branch 1 was experiencing a steady decline in sales, [Texas Plumbing’s] other locations were experiencing increased sales percentages up to 14 percent. In November 2016, [Texas Plumbing] made a business decision to terminate Mr. Fenley’s employment because he was [the] lowest performing sales person out of all [Texas Plumbing’s] locations. The following month, sales at the Branch 1 location increased by 5.1 percent. Steven Anthony, Branch Manager of [Texas Plumbing’s] Branch 1 location, made the ultimate decision to terminate Mr. Fenley’s employment because he was the lowest performing sales person.

Reiterating this reasoning, Anthony asserted in his affidavit that he “made the ultimate decision to terminate Mr. Fenley’s employment because [Fenley] was the lowest performing sales person.”

Texas Plumbing also cites a September 16, 2016 email from Fuller to Texas Pluming’s managers which states, in relevant part:

Managers — YTD sales comparing 2015 to 2016 are up 12.75% company wide. See below to understand how your branch sales compare.

br1 br2 br3 br4 YTD 2015 5,303,000 19,467,000 888,183 13,886,000 YTD 2016 4,581,000 19,893,000 1,018,713 16,162,000 % variance - 14% + 2.5% + 13% + 14%

According to Texas Plumbing, this email further supports Texas Plumbing’s contention that Fenley was terminated because Branch 1 (where Fenley worked) had a substantial reduction in sales that necessitated the termination of a sales person.

Because Texas Plumbing produced evidence showing there was a legitimate, nondiscriminatory reason for Fenley’s termination, the burden shifted back to Fenley to produce controverting evidence of a retaliatory motive. Salas, 616 S.W.3d at 146. We conclude Fenley did not make this showing with respect to his retaliation claim.

According to Fenley’s personal statement, he fell at work on May 20, 2016, and sustained a broken finger. Fenley sought medical treatment and, in June 2016, underwent surgery on his hand. Fenley submitted into evidence nine “Texas Workers’ Compensation Work Status Reports” completed by his attending physician from May 23, 2016 through August 26, 2016. The final work status report states that Fenley is permitted to return to work “without restrictions” as of August 26, 2016.

Fenley’s employment with Texas Plumbing was terminated approximately six months after he filed his workers’ compensation claim and three months after the claim was resolved and Fenley was permitted to return to work without any restrictions. The amount of time that elapsed between these events counsels against the conclusion that Fenley’s November 2016 termination was retaliation for his filing of a workers’ compensation claim. See, e.g., Green v. Lowe’s Home Ctrs., Inc., 199 S.W.3d 514, 523 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (“We hold that four months between the filing of the claim and termination, without more, does not raise a fact issue as to a causal link, when the stated grounds for termination reached fruition within the same period.”); see also Gonzales v. Dupont Powder Coatings USA, Inc., 546 F. App’x 378, 379 (5th Cir. 2013) (per curiam) (“We agree that the passage of six months here is too great a delay to support a causal connection.”); Raggs v. Miss. Power & Light Co., 278 F.3d 463, 471-72 (5th Cir. 2002) (finding five-month period between protected activity and adverse employment action did not establish prima facie retaliation claim)

Moreover, Fenley did not produce any evidence showing Texas Plumbing’s proffered reason for Fenley’s termination was mere pretext for termination in retaliation for filing a workers’ compensation claim. See Salas, 616 S.W.3d at 146. Specifically, Fenley did not produce any evidence raising an issue of fact as to whether (1) Branch 1 sales had decreased significantly in 2016, or (2) Fenley was the lowest-performing salesperson at Branch 1. Fenley did not produce any evidence suggesting his November 2016 termination from Texas Plumbing was related to his filing a workers’ compensation claim.

Because Fenley did not satisfy his burden to produce evidence of a retaliatory motive underlying his November 2016 termination from Texas Plumbing, we overrule his challenge to the trial court’s summary judgment on his retaliation claim.

CONCLUSION

We affirm the trial court’s summary judgment with respect to Fenley’s (1) TCHRA disability discrimination claim, and (2) Texas Labor Code section 451.001 retaliation claim. We reverse the trial court’s summary judgment with respect to Fenley’s TCHRA age discrimination claim and remand for further proceedings consistent with this opinion.

Footnotes

1

Fenley died while this case was pending in the trial court. Under the Texas Rules of Civil Procedure, Fenley’s surviving spouse entered an appearance in the case to pursue Fenley’s claims. See Tex. R. Civ. P. 151.

2

Specifically, to establish a prima facie case of age discrimination, a plaintiff-employee must show he was: (1) a member of a class protected by the TCHRA (i.e., at least forty years old); (2) qualified for his employment position; (3) terminated by the employer; and (4) replaced by someone younger. Garcia, 372 S.W.3d at 638, 642.

3

As with age discrimination claims, our analysis of TCHRA disability discrimination claims “consider[s] federal civil rights law as well as our own caselaw.” City of Houston v. Proler, 437 S.W.3d 529, 532 (Tex. 2014).

Court of Appeals of Texas, Houston (14th Dist.).

IN THE INTEREST OF A.V.T.R., A CHILD

NO. 14-19-00986-CV

|

Opinion filed March 11, 2021

On Appeal from the 310th District Court

Harris County, Texas

Trial Court Cause No. 2013-68957

Panel consists of Justices Wise, Zimmerer, and Poissant.

MEMORANDUM OPINION

Jerry Zimmerer Justice

Affirmed and Memorandum Opinion filed March 11, 2021.

Appellant Andrew Rose (“Father”) appeals the trial court’s order following a bench trial in a suit affecting the parent-child relationship. In three issues Rose challenges the trial court’s exclusion of evidence during the hearing on his motion for new trial, the overruling of his motion for new trial, and the assessment of amicus attorney’s fees. We affirm.

BACKGROUND

Father and appellee Joann Taylor (“Mother”) had a child in 2014. Pursuant to a mediated settlement agreement (“MSA”) Mother was named sole managing conservator of the child and Father was the possessory conservator. The parties agreed to child support and Father’s visitation. Father subsequently filed a petition to modify the MSA in that Father sought to be appointed sole managing conservator with the right to designate the primary residence of the child. In the alternative Father requested that the parties be named joint managing conservators. Father alleged that the circumstances of the child had changed because Mother engaged in a history or pattern of child neglect. Father’s petition to modify did not allege specific circumstances that had materially and substantially changed, but at trial Father alleged that Mother made false accusations of sexual abuse against him and, in that regard, Mother had engaged in a history or pattern of child neglect.

The parties proceeded to a bench trial where the following witnesses testified: (1) LaRon Haynes, an investigator with the Department of Family and Protective Services (the “Department”); (2) Ambryia Wilson, another Department investigator; (3) Melissa Ramsey, a family therapist who saw the child; (4) Father; and (5) Mother.

Haynes testified that he conducted an investigation into an outcry of sexual abuse made by the child, who was three years old at the time. The outcry was reported by Mother. The investigation resulted in an “unable to determine” finding. According to the investigation report, Mother reported that the child exhibited behaviors consistent with sexual abuse after visitation with Father. Haynes was unable to rule out the allegation because the child was unable to give details about the allegation. Haynes referred the child to play therapy. The therapist from play therapy also reported the child’s outcry and the Department opened a second investigation.

The Department assigned Wilson to investigate the outcry reported by the therapist, the second outcry. Wilson testified that the investigation was closed because the Department determined that the outcry involved the same allegations that had been made in the first allegation; there was nothing new to investigate, resulting in an administrative closure.

At the time of trial Father was working as an aviation instructor in China, which required him to alternate four weeks living in China with four weeks in Houston. Father asked the trial court to modify the MSA’s standard possession order to allow him access to the child during the time he was living in Houston. Father also requested that Mother pay child support to him. Father testified that he exercised all periods of possession and was up to date on child support. Father denied the sexual abuse allegations. While the abuse allegations were investigated Father was not allowed visitation with the child.

Mother testified that she did not believe the circumstances of the child had changed and she was willing to give Father visitation every weekend he was in Houston.

At the conclusion of the testimony Mother’s attorney requested a directed verdict, arguing that Father failed to meet his burden to show a material and substantial change in the child’s circumstances. The trial court agreed and granted a directed verdict on Father’s motion to modify.

The trial court rendered judgment denying Father’s motion to modify conservatorship and granting Mother’s motion to modify child support. The trial court further denied both parties’ requests for attorneys’ fees and granted the amicus attorney’s request for fees, ordering Father to pay $12,235 in amicus fees.

Father filed a motion to reconsider amicus fees, motion for new trial, and amended motion for new trial in which he argued the trial court erred in assessing amicus fees against him and in excluding certain testimony. Specifically, Father asserted he was entitled to a new trial because (1) the evidence was legally and factually insufficient to support the trial court’s judgment allocating amicus fees; and (2) “an unauthorized act or acts by [Father]’s trial counsel so prejudiced [Father]’s ability to present his claims in this case that the effect was to deprive [Father] of his day in court[.]” The trial court held a hearing on Father’s motion for new trial, which was denied.1

At the hearing on the motion for new trial Father introduced evidence that Mother had entered into an MSA with Don Brooks, the father of Mother’s older child. A portion of the MSA enjoined Brooks from testifying in the modification proceeding between Mother and Father. Brooks was represented by attorneys with the same law firm that represented Father. Father asked that Brooks be permitted to testify at the hearing on the motion for new trial; Father did not seek Brooks’s testimony at trial. The trial court excluded Brooks’s testimony from the motion-for-new-trial hearing. Father asked to present an offer of proof of Brooks’s testimony, which the trial court agreed to allow after the hearing. By the time the hearing ended Brooks had left the courtroom. Approximately one week later the attorneys reconvened, but Brooks was not present. Father’s attorney stated on the record that Brooks would have testified that he was involved in a modification proceeding with Mother and was represented by the same law firm that represented Father. Brooks would have testified that Mother also made allegations of sexual abuse against him in the modification proceeding. Brooks would have testified that Mother reported the alleged abuse to the Department.

Father filed a timely request for findings of fact and conclusions of law, but did not timely notify the trial court of past-due findings and conclusions. See Tex. R. Civ. P. 297 (requiring a party to file a notice of past due findings “within thirty days after filing the original request”). The trial court did not file findings of fact and conclusions of law and Father waived any complaint that the trial court failed to issue findings. See Hardin v. Hardin, 161 S.W.3d 14, 20 (Tex. App.—Houston [14th Dist.] 2004, no pet.) (explaining that untimely filing of notice of past due findings results in waiver of any complaint that trial court failed to issue findings).

ISSUES PRESENTED

In three issues on appeal Father asserts (1) the trial court committed harmful error in excluding the testimony of Don Brooks at the hearing on the motion for new trial; (2) the trial court abused its discretion in denying Father’s motion for new trial; and (3) the trial court abused its discretion in ordering Father to pay all remaining amicus fees. Mother did not file a responsive brief in this court.

ANALYSIS

I. Standard of Review and Applicable Law

We review the trial court’s denial of Father’s petition to modify for an abuse of discretion. See In re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (“Trial courts have wide discretion with respect to custody, control, possession, support, and visitation matters.”). The trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. In re R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). The trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support its decision. In re C.A.M.M., 243 S.W.3d 211, 214 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Under an abuse-of-discretion standard, legal and factual sufficiency are not independent grounds of error but instead are relevant factors assessed to determine if the trial court abused its discretion. In re R.T.K., 324 S.W.3d at 899–900. Where, as here, the trial court fails to file findings of fact and conclusions of law following a bench trial, we infer all findings necessary to support the judgment and will affirm on any legal ground supported by the record. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). When the appellate record includes both the reporter’s and clerk’s records, the implied findings are not conclusive and may be challenged for legal and factual sufficiency. See Harris County v. Ramirez, 581 S.W.3d 423, 427 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

When examining legal sufficiency, we review the entire record, considering evidence favorable to the finding if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. In re J.R.P., 526 S.W.3d 770, 777 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We indulge every reasonable inference that would support the challenged finding. Id. Evidence is legally sufficient “if it would enable reasonable and fair-minded people to reach the decision under review.” Id.

For a factual sufficiency review, we examine the entire record and consider evidence favorable and contrary to the challenged finding. In re P.A.C., 498 S.W.3d 210, 214 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). “We may set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” In re J.R.P., 526 S.W.3d at 777. “It is not within the province of this court to interfere with the factfinder’s resolution of conflicts in the evidence or to pass on the weight or credibility of the witness’s testimony.” In re C.E.M.-K., 341 S.W.3d 68, 81 (Tex. App.—San Antonio 2011, pet. denied).

In a bench trial, the trial court is in the best position to observe and assess the witnesses’ demeanor and credibility, and “to sense the ‘forces, powers, and influences’ that may not be apparent from merely reading the record on appeal.” In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (quoting Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.)). “As a result, an appellate court defers to a trial court’s resolution of underlying facts and to credibility determinations that may have affected its determination, and will not substitute its judgment for that of the trial court.” In re J.R.P., 526 S.W.3d at 778.

To ensure stability and continuity for children’s living arrangements, Texas law delineates the showing necessary to modify a trial court’s conservatorship order. See In re A.L.H., 515 S.W.3d 60, 79 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). The terms of a conservatorship may be modified only if (1) modification is in the child’s best interest, and (2) “the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed” since the date of rendition of the conservatorship order. Tex. Fam. Code § 156.101(a).

The existence of a material and substantial change in circumstances is a threshold determination. In re A.L.E., 279 S.W.3d at 428. In making this determination, the trial court “is not confined to rigid or definite guidelines;” rather, the trial court’s determination is fact-specific and must be made according to the circumstances as they arise. Id. Material changes may include (1) the marriage of one of the parties; (2) changes in the home surroundings; (3) mistreatment of the child; or (4) a party becoming an improper person to exercise custody. Arredondo v. Betancourt, 383 S.W.3d 730, 734-35 (Tex. App.—Houston [14th Dist.] 2012, no pet.). The person seeking the modification has the burden of establishing a material and substantial change. London v. London, 94 S.W.3d 139, 145 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

“[N]ot every change in conditions justifies a change of custody, but only those changes which reasonably could be said to injuriously affect the child’s best interests.” Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App.—Dallas 1981, no writ). Change alone does not justify modification unless changed needs also are shown. See Zeifman v. Michels, 212 S.W.3d 582, 593 (Tex. App.—Austin 2006, pet. denied). The policy behind the material-and-substantial-change requirement is to prevent constant re-litigation with respect to children and create stability in the conservatorship. In re H.P.J., No. 14-17-00715-CV, 2019 WL 1119612, at *3–4 (Tex. App.—Houston [14th Dist.] Mar. 12, 2019, no pet.) (mem. op.).

To show that a material and substantial change in circumstances has occurred, the movant must show conditions as they existed at the time the prior conservatorship order was signed. In re A.L.E., 279 S.W.3d at 428 (citing Zeifman, 212 S.W.3d at 589). Once these circumstances have been shown, the movant must show what material and substantial changes have occurred in the intervening period. Id.

II. The trial court did not abuse its discretion in excluding Brooks’s testimony from the hearing on the motion for new trial.

Father first contends that the trial court abused its discretion in excluding Brooks’s testimony from the hearing on the motion for new trial.

Evidentiary decisions are committed to the trial court’s sound discretion. U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). To show that the trial court abused its discretion in excluding evidence, a complaining party must demonstrate that (1) the trial court erred in not admitting the evidence; (2) the excluded evidence was controlling on a material issue dispositive of the case and was not cumulative; and (3) the error probably caused the rendition of an improper judgment. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a). Matter of Marriage of Harrison, 557 S.W.3d 99, 121 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).

Father has failed to demonstrate that Brooks’s testimony would have been material to the trial court’s decision on whether there was a material and substantial change in the circumstances of the child. Notably, Father does not contend on appeal that the evidence is legally or factually insufficient to support the trial court’s conservatorship ruling or otherwise complain about the ruling. Father did not present Brooks as a witness at trial and did not assert that Brook’s testimony was newly discovered evidence following the trial. Absent a complaint about the trial court’s substantive ruling, it is difficult to see how the exclusion of evidence from the motion-for-new-trial hearing probably caused the rendition of an improper judgment. See Watts v. Oliver, 396 S.W.3d 124, 129–30 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding that absent a complaint about the trial court’s substantive ruling, appellant could not establish that exclusion of evidence probably caused rendition of an improper judgment).

Father also argues that the injunction against Brooks’s testimony in the MSA was an unconstitutional prior restraint on speech. Father failed to preserve this issue by failing to raise it at trial or in his motion for new trial. See Tex. R. App. P. 33.1 (to preserve error appellant must show complaint was made to the trial court by timely request, objection, or motion).

On this record we cannot say that the trial court abused its discretion in excluding Brooks’s testimony from the hearing of his motion for new trial. We overrule Father’s first issue.

III. The trial court did not abuse its discretion in denying Father’s motion for new trial.

In Father’s second issue he contends the trial court erred in denying his motion for new trial. Specifically, Father alleges that his attorney “entered into an unauthorized settlement agreement.” Father argues that his attorney hampered the presentation of Father’s case by entering into the settlement agreement that contained the injunction prohibiting Brooks from testifying in Father’s modification proceeding.

We review the trial court’s denial of Father’s motion for new trial under the abuse-of-discretion standard of review. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex. 2000); Wichman v. Kelsey-Seybold Med. Group, PLLC, No. 14-18-00641-CV, 2020 WL 4359734, at *2 (Tex. App.—Houston [14th Dist.] July 30, 2020, no pet.).

Attached to Father’s motion for new trial was a copy of the MSA in a modification suit in which Brooks sought to modify the parent-child relationship between Brooks and Mother. The MSA contained the aforementioned injunction order against Brooks testifying in the modification proceeding between Father and Mother. One of Father’s trial attorneys, Brian Walters, signed the agreed order as Brooks’s attorney. Walters’s signature appeared below a notation, “Approved as to Form Only.” Brooks and Mother each signed the agreed order as parties to the MSA under a notation, “Approved and Consented to as to Both Form and Substance.”

Father attacks the agreed order, which incorporated the MSA, as being void as against public policy because (1) the order “destroyed” evidence because it prohibited Brooks from testifying; (2) Father’s attorney was not authorized to enter into the MSA; and (3) Father’s attorney violated the Texas Disciplinary Rules of Professional Conduct when he entered into the MSA. It is undisputed that Father was not a party to the MSA or agreed order enforcing the MSA.

In challenging the injunction against Brooks testifying, Father attempts to collaterally attack the judgment. A direct attack—such as an appeal, a motion for new trial, or a bill of review—attempts to correct, amend, modify, or vacate a judgment. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). A collateral attack seeks to avoid the binding effect of a judgment to obtain specific relief that the judgment currently impedes. Id. In general, a party to a final judgment may collaterally attack the judgment at any time after the time for filing an appeal has expired; however, in light of the policy favoring the finality of judgments, such attacks are disfavored and may only be made on the ground that the judgment was void, rather than merely voidable. See id. at 272–74 (recognizing that this rule “strikes a reasonable balance between the need for finality of judgments and the requirement that the power underlying judicial authority must be based on a litigant’s fair opportunity to be heard”); see also Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005). Therefore, parties to a divorce proceeding may collaterally attack a final judgment in their own case on the ground that it was void. See, e.g., Ramsey v. Ramsey, 19 S.W.3d 548, 552–53 (Tex. App.—Austin 2000, no pet.) (recognizing that “a divorce decree that is valid on its face and has not been appealed cannot be set aside in a subsequent suit by collateral attack”). However, a somewhat different analysis applies when, as here, a non-party seeks to collaterally attack a final judgment. Here, Father argues that Brooks’s MSA and agreed judgment in Brooks’s divorce impeded Father’s ability to present evidence in the instant case.

An individual who is not a party to a final judgment lacks standing to collaterally attack the judgment, unless the individual can establish his or her interests are directly and necessarily affected by the judgment itself. See In re Ocegueda, 304 S.W.3d 576, 580–81 (Tex. App.—El Paso 2010, pet. denied) (attorneys who were non-parties to expunction proceeding lacked standing to collaterally attack expunction order). Having an “interest affected by the judgment” means having an interest in the subject matter to which the judgment relates. Digilio v. True Blue Animal Rescue, No. 01-18-01087-CV, 2020 WL 4308709, at *9 (Tex. App.—Houston [1st Dist.] July 28, 2020, no pet.) (mem. op.). Examples of nonparties whose interests are affected by a judgment are persons having an interest in land (such as an owner, a cotenant, or a person in lawful possession) who are not made a party to an action involving the land, a holder of a junior lien who has been ignored in a suit foreclosing a prior lien on the same property, and a creditor whose rights are prejudiced by a judgment pursued for the purpose of delaying, hindering, or defrauding the creditor. See Grynberg v. Christiansen, 727 S.W.2d 665, 667 (Tex. App.—Dallas 1987, no writ).

Conversely, having only a tangential or indirect interest in the judgment is insufficient to bestow standing upon a non-party for purposes of allowing a collateral attack on the judgment. See, e.g., id. at 667 (party lacked standing to collaterally attack a final judgment that was rendered in another proceeding, where his only asserted interest in doing so was to avoid the inconvenience of attending oral depositions and producing documents); In re Ocegueda, 304 S.W.3d at 580–81 (attorneys could not establish that they had standing to collaterally attack an expunction order where they were neither parties to the original expunction proceeding nor did they represent any of the parties to the proceeding).

In accord with these general principles, several courts, including at least three of our sister courts in Texas, have held that a non-party to a divorce proceeding lacks standing to collaterally attack a divorce decree where the individual had no pre-existing interest in the divorce proceeding itself. See, e.g., Caballero v. Vig, 600 S.W.3d 452, 459–60 (Tex. App.—El Paso 2020, pet. denied) (wife did not have standing to challenge the validity of annulment of marriage of trial judge); Gilliam v. Riggs, 385 S.W.2d 444, 446–47 (Tex. Civ. App.—Beaumont 1964, writ dism’d w.o.j.) (appellant, who was not a party to a divorce proceeding and was unable to demonstrate that he had any interest in the divorce, had no right to challenge the validity of the divorce judgment); Perry v. Copeland, 323 S.W.2d 339, 344 (Tex. Civ. App.—Texarkana 1959, writ dism’d) (recognizing that daughter had no right to collaterally attack her father’s divorce decree); Kieke v. Cox, 300 S.W.2d 309, 311 (Tex. Civ. App.—San Antonio 1957, no writ) (second husband of one of the parties to a divorce judgment that was regular and final on its face lacked sufficient interest to collaterally attack the same).

Relying on In re Kasschau, 11 S.W.3d 305 (Tex. App.—Houston [14th Dist.] 1999, orig. proceeding), Johnson v. Ranch Guadalupe, 789 S.W.2d 596, 598 (Tex. App.—Texarkana 1990, pet. denied), and Hazelwood v. Mandrell Industries Co., Ltd., 596 S.W.2d 204, 206 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.), Father argues that the MSA and the injunction contained in the agreed order are void. In each of those cases, however, the party challenging the order or agreement was a party to the order or agreement. See Kasschau, 11 S.W.3d at 308 (party to MSA sought judgment on a MSA); Johnson, 789 S.W.2d at 597–98 (parties to settlement agreement alleged their attorney was not authorized to enter into the agreement); Hazelwood, 596 S.W.2d at 205 (workers’ compensation claimant alleged that employment contract was void as against public policy).

Because Father does not have standing to challenge the agreed order in Brooks’s modification proceeding, the trial court did not abuse its discretion in denying Father’s motion for new trial on the ground that the injunction in the MSA was unauthorized or void as against public policy. We overrule Father’s second issue.

IV. The trial court did not abuse its discretion in assessing amicus fees against Father.

The record reflects that before trial, the amicus attorney filed a motion to compel attorney’s fees and for sanctions. In the motion the amicus attorney stated that the trial court had previously ordered Father to pay $7,306.25 to the amicus as her fee. The motion further asserted that Mother owed the amicus $10,156.25 in fees. The amicus attorney later submitted an affidavit, which reflected that the total amount owed was $22,035, of which Father had already paid $9,000, and Mother had paid $800 leaving a balance of $12,235. The amicus represented that Mother was paying her portion of the amicus fees in installments. Father objected to the amicus fees noting that he had already paid the “vast majority” of the fees. In its final judgment the trial court ordered Father to pay $12,235, representing the amount of amicus fees owed at that time.

In Father’s third issue he asserts the evidence was legally and factually insufficient to support the assessment of amicus fees against him. Father asserts the trial court abused its discretion in two ways when it ordered him to pay the amicus attorney’s fees. First, Father asserts the fees were improperly assessed as sanctions. Second, Father asserts the trial court abused its discretion because the evidence is insufficient to support the assessment of amicus attorney’s fees.

A. The record does not reflect that the amicus fees were assessed as a sanction.

The Family Code authorizes a trial court to make a discretionary appointment of an amicus attorney in a suit affecting the parent-child relationship when the best interest of the children is an issue. See Tex. Fam. Code § 107.021; In re Scheller, 325 S.W.3d 640, 645 (Tex. 2010) (orig. proceeding) (per curiam). Pursuant to section 107.021 of the Family Code, the trial court appointed an amicus attorney in this proceeding. In its judgment the trial court ordered Father to pay $12,235 in amicus fees, but did not order Mother to pay amicus fees. In his motion for new trial and on appeal Father complains that Mother did not plead for amicus fees to be assessed as sanctions and the evidence was legally and factually insufficient to support assessment of the fees as a sanction against him.

Contrary to Father’s assertion, Mother did request sanctions against Father for filing a frivolous pleading. In a motion to deny relief, filed June 17, 2019, Mother requested sanctions pursuant to Texas Rule of Civil Procedure 13 and Chapter 10 of the Texas Civil Practice and Remedies Code because she alleged Father filed a groundless suit that was not in the best interest of the child. In opening statements Mother’s attorney requested “attorney’s fees, costs and – plus additional sanctions to prevent this kind of thing in the future.” The trial court’s judgment, however, did not assess amicus fees as sanctions.

Numerous sections in the Family Code authorize a trial court to award attorney’s fees in a suit affecting the parent-child relationship (“SAPCR”). Section 106.002, applicable to all SAPCRs, vests a trial court with general discretion to render judgment for reasonable attorney’s fees to be paid directly to a party’s attorney. Tex. Fam. Code § 106.002(a); see also Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002) (“An attorney’s fees award in a suit affecting the parent-child relationship is discretionary with the trial court.”). In addition, the Legislature has enacted specific provisions that control awards of attorney’s fees in certain types of cases under Title 5, including separate provisions for Chapter 156 modification suits and Chapter 157 enforcement suits. For example, section 156.005 requires that a trial court tax attorney’s fees as costs against the offending party in modification suits if the court finds that the suit was “filed frivolously or is designed to harass a party.” Tex. Fam. Code § 156.005. Section 156.005 requires a finding by the trial court that the suit for modification was filed frivolously or was designed to harass a party, and the court is required to state that finding in its order. Tex. Fam. Code § 156.005. The trial court made no such finding in this case.

Chapters 9 and 10 of the Texas Civil Practice and Remedies Code and rule 13 of the Texas Rules of Civil Procedure allow a trial court to sanction an attorney or a party for filing motions or pleadings that lack a reasonable basis in fact or law. Chapter 9 of the Texas Civil Practice and Remedies Code only applies in proceedings in which neither Rule 13 nor Chapter 10 applies. Tex. Civ. Prac. & Rem. Code § 9.012(h). Rule 13 authorizes the imposition of the sanctions listed in Rule 215.2(b), which provides for a monetary penalty based on expenses, court costs, or attorney’s fees. Tex. R. Civ. P. 13; Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). Rule 13 requires: “No sanctions under this rule may be imposed except for good cause, the particulars of which must be stated in the sanction order.” Tex. R. Civ. P. 13 . Chapter 10 requires that the court “shall describe in an order imposing a sanction under this chapter the conduct the court has determined violated Section 10.001 and explain the basis for the sanction imposed.” Tex. Civ. Prac. & Rem. Code § 10.005.

At trial, the attorneys agreed to have a separate hearing on attorney’s fees and sanctions, which according to the trial court’s judgment, was never held. The trial court considered the parties’ attorneys’ fees requests by submission and denied both parties’ requests for attorneys’ fees. The trial court then stated in its order:

Having considered the pleadings on file, evidence presented, and arguments of counsel, the Court hereby GRANTS the request for attorney fees of Amicus Attorney, Tammy Simien Moon. THEREFORE,

[Father] is ORDERED to pay directly in the offices of TAMMY SIMIEN MOON the amount of $12,235.00 by cash, cashier’s check or money order by August 6, 2019.

The trial court did not reference sanctions, Rule 13, or any other statute permitting sanctions. The final judgment does not reference sanctions or contain any language pursuant to Rule 13 or Chapter 10 that is required to assess sanctions.

The record does not reflect that amicus fees were awarded as sanctions in this case. Father is correct in noting that a trial court must make a finding of good cause before assessing sanctions pursuant to Rule 13 of the Texas Rules of Civil Procedure. Tex. R. Civ. P. 13. Under Chapter 10, the trial court must describe the conduct the court has determined violated section 10.001 and explain the basis for the sanction imposed. Tex. Civ. Prac. & Rem. Code § 10.005. Under the Family Code, before assessing sanctions, the trial court is required to state in its order that the suit for modification was filed frivolously or was designed to harass a party. Tex. Fam. Code § 156.005. Because the trial court made no such findings, we hold the trial court did not assess sanctions. Cf. In re D.Z., 583 S.W.3d 284, 293–94 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (holding that trial court’s award of attorney’s fees because “good cause exist[ed] to award [Mother] attorney’s fees” was sufficient to satisfy Rule 13’s requirement of a sanction).

B. The evidence is legally and factually sufficient to support the trial court’s assessment of amicus attorney’s fees.

Having determined the amicus fees were not assessed as sanctions, we review the trial court’s award of amicus fees in a suit affecting the parent-child relationship for abuse of discretion. In re R.H.W. III, 542 S.W.3d 724, 743 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Section 107.023 of the Family Code gives the trial court wide discretion in awarding amicus fees and permits the trial court to assess the fees against either party or both parties. See Tucker, 419 S.W.3d at 300 (noting that section 107.023 specifically authorizes trial courts to characterize fees awarded to an amicus attorney as necessaries for the benefit of the child).

Father asserts the trial court abused its discretion because it did not consider the amounts already paid by the parties, the court’s prior orders regarding allocation of amicus fees, and the amicus attorney’s invoices reflecting amounts already paid to the amicus.

As noted in the court’s judgment, the parties agreed to submit requests for attorney’s fees in writing rather than participate in an oral hearing. The amicus attorney submitted an affidavit on July 8, 2019, which reflected a balance of $12,235 owed in amicus fees. The affidavit notes a previous balance of $11,550 plus new charges of $10,485, and credits the parties with $9,800 in payments. On December 9, 2019, in the hearing on the motion for new trial, held several months after judgment, Father testified that he paid the amicus attorney “$14,500, approximately.” The evidence is therefore conflicting as to how much Father paid the amicus attorney before the trial court rendered judgment. It is also plausible that Father paid some of the amicus fees between the date of judgment and the hearing on the motion for new trial.

Viewing the conflicting evidence in the light most favorable to the trial court’s ruling, we conclude Father has not shown the trial court abused its discretion in awarding amicus fees to be paid by Father pursuant to section 107.023. See In re R.H.W. III, 542 S.W.3d at 743 (holding trial court has discretion to assess amicus fees against one parent as necessaries for the child); In re R.T.K., 324 S.W.3d at 899–900 (stating standard of review for sufficiency of evidence). Concluding the trial court did not assess amicus fees as a sanction and did not abuse its discretion in assessing fees to be paid by Father, we overrule Father’s third issue.

CONCLUSION

Having overruled Father’s issues on appeal, we affirm the trial court’s judgment.

Footnotes

1

The motion for new trial was denied by operation of law on November 27, 2019, 75 days after the judgment was signed. See Tex. R. Civ. P. 329b(c). The hearing was not held until December 9, 2019; however, the trial court retained plenary power for an additional 30 days after the motion was overruled by operation of law. See Tex. R. Civ. P. 329b(e). The trial court noted on its docket sheet that the motion for new trial was denied December 9, 2019.

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