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

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.

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

ROSE A. MUNGUIA, AS NEXT FRIEND OF E.S.U., A MINOR AND J.M.U., A MINOR, Appellant

v.

JUSTROD, INC., Appellee

NO. 14-18-01059-CV

|

Opinion filed January 28, 2021

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Cause No. 2017-76418

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

MEMORANDUM OPINION

Frances Bourliot Justice

Affirmed and Memorandum Opinion filed January 28, 2021.

In this appeal, Rose A. Munguia, as next friend of minor children E.S.U. and J.M.U., challenges the trial court’s grant of summary judgment favoring Justrod, Inc. in a wrongful death action. Because Munguia has failed to challenge all the grounds on which judgment may have been based, we affirm the judgment.

Discussion

On December 26, 2012, Jose Ucles was working for Justrod as a framer when he fell to his death from the roof of a two-story construction project. Ucles was covered by worker’s compensation insurance. Under the Texas Worker’s Compensation Act, the recovery of workers’ compensation benefits is the exclusive remedy for the death of a covered worker except for the recovery of exemplary damages by the surviving children or spouse of a deceased employee whose death was caused by an employer’s intentional conduct or gross negligence. Tex. Labor Code § 408.001(a), (b). After two nonsuits relating to international travel difficulties, Munguia filed the present lawsuit against Justrod on behalf of Ucles’ two minor children, E.S.U. and J.M.U., alleging wrongful death and gross negligence.

On July 17, 2018, Justrod filed two separate motions—a no evidence motion for summary judgment and a traditional motion for summary judgment. In the no evidence motion, Justrod asserted that Munguia could not produce any evidence to establish the required elements of negligence—a prerequisite for gross negligence—or of gross negligence itself. See, e.g., Sonic Sys. Int’l, Inc. v. Croix, 278 S.W.3d 377, 395 (Tex. App.—Houston [14th Dist.] 2008, pet. denied). In the traditional motion, Justrod asserted that evidence attached to the motion conclusively disproved the existence of several elements of gross negligence as well as several of the factual allegations contained in Munguia’s petition. The trial court signed orders granting both motions on November 5, 2018. The orders do not identify specific grounds for granting judgment.

An appellant must challenge all possible grounds on which a summary judgment could have been granted, whether properly or improperly. See FinServ Cas. Corp. v. Transamerica Life Ins., 523 S.W.3d 129, 139 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); see also The Kroger Co. v. Am. Alternative Ins. Corp., 468 S.W.3d 766, 769 (Tex. App.—Houston [14th Dist.] 2015, no pet.). If an appellant fails to challenge all grounds on which the judgment may have been granted, the appellate court must uphold the summary judgment. Heritage Gulf Coast Props. v. Sandalwood Apartments, Inc., 416 S.W.3d 642, 653 (Tex. App.— Houston [14th Dist.] 2013, no pet.); see also Lujan v. Navistar, Inc., No. 14-14-00345-CV, 2021 WL 56184, at *3 (Tex. App.—Houston [14th Dist.] Jan. 7, 2021, no pet. h.) (mem. op.).

In her brief, Munguia raises four issues, each of which expressly challenges only the trial court’s grant of no evidence summary judgment.1 None of Munguia’s issues challenge the trial court’s grant of traditional summary judgment. Despite the fact that Justrod explicitly highlights this omission in its appellee’s brief, Munguia has not amended her appellate brief or filed a reply brief challenging the grounds for summary judgment contained in Justrod’s traditional motion.2

Even construing her briefing liberally, Munguia’s arguments challenging the grant of no-evidence summary judgment do not address the grounds, arguments, and evidence Justrod raised in its traditional motion for summary judgment.3 See Fairfield Indus., Inc. v. EP Energy E&P Co., 531 S.W.3d 234, 253 (Tex. App.— Houston [14th Dist.] 2017, pet. denied); Equity Indus. Ltd. P’ship IV v. S. Worldwide Logistics, LLC, No. 14-14-00750-CV, 2016 WL 1267848, at *3 (Tex. App.—Houston [14th Dist.] Mar. 31, 2016, no pet.) (mem. op.). Accordingly, we must affirm the trial court’s judgment. See, e.g., Haven Chapel United Methodist Church v. Leebron, 496 S.W.3d 893, 903 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (affirming summary judgment because appellant failed to challenge both no evidence and traditional grounds); Moore v. Panini Am. Inc., No. 05-15-01555-CV, 2016 WL 7163899, at *4 (Tex. App.—Dallas Nov. 7, 2016, no pet.) (mem. op.) (same); Leffler v. JP Morgan Chase Bank, N.A., 290 S.W.3d 384, 387 (Tex. App.—El Paso 2009, no pet.) (same); In re Estate of Bendtsen, 230 S.W.3d 823, 827, 830 (Tex. App.—Dallas 2007, pet. denied) (same).

The trial court’s judgment is affirmed.

Footnotes

1

Munguia’s four issues read as follows:

Did the trial court error [sic] by granting Justrod’s No-Evidence Motion for Summary Judgment because Munguia produced more than a scintilla of evidence raising a genuine issue of material fact that Justino Rodriguez and Jose Aurelio Rodriguez Torres were vice principals of Justrod?

Did the trial error [sic] by granting Justrod’s No-Evidence Motion for Summary Judgment because Munguia produced more than a scintilla of evidence raising a genuine issue of material fact in support of each challenged element of negligence?

Did the trial erred [sic] by granting Justrod’s No-Evidence Motion for Summary Judgment because Munguia produced more than a scintilla of evidence raising a genuine issue of material fact in support of each challenged element of gross negligence?

Did the trial error [sic] by granting Justrod’s No-Evidence Motion for Summary Judgment because it fails to comply with Tex. R. Civ. P. 166a(i)?

2

It is also worth noting that in her notice of appeal, Munguia stated that she was appealing both the order granting no evidence summary judgment and the order granting traditional summary judgment. Nonetheless, Munguia asserted in her brief that the trial court did not rule on the traditional motion; however, the order was included in a supplemental clerk’s record filed in this appeal.

3

The closest Munguia comes to challenging the traditional summary judgment in her brief is under her fourth issue, in which she asserts that Justrod’s no evidence motion was inadequate and therefore should be construed as a traditional motion, citing Michael v. Dyke, 41 S.W.3d 746, 751-52 (Tex. App.—Corpus Christi 2001, no pet.), among other cases. In one sentence under that fourth issue, Munguia states that even if the trial court improperly considered the evidence attached to Justrod’s traditional motion as evidence supporting Justrod’s no evidence motion, the court still erred in granting summary judgment because (1) the court specifically stated it was granting the no evidence motion and (2) Munguia’s summary judgment evidence raised a genuine issue of material fact precluding summary judgment on the issues identified in Justrod’s traditional motion. As stated, however, at no point does Munguia actually challenge the grant of traditional summary judgment, much less the specific grounds, arguments, and evidence presented in Justrod’s traditional motion. See Moyal v. Sec. Serv. Fed. Credit Union, No. 05-18-00581-CV, 2019 WL 4010774, at *2 & n.2 (Tex. App.—Dallas Aug. 26, 2019, no pet.) (mem. op.).

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

Myra Lisa WELLONS, Individually and as the Representative of the Estate of Jason Wellons, Deceased, and Megan Wellons, Appellants

v.

VALERO REFINING—NEW ORLEANS, L.L.C., Appellee

NO. 14-18-01075-CV

|

Opinion filed December 31, 2020

On Appeal from the 113th District Court, Harris County, Texas, Trial Court Cause No. 2015-36186

Attorneys & Firms

Clay Dugas, Beaumont, for Appellants.

William C. Book JR., Jennifer Bruch Hogan, Richard P. Hogan, Jr., Houston, James C. Marrow, David W. Burns, Houston, for Appellee.

Panel consists of Chief Justice Frost and Justices Christopher and Bourliot.

OPINION

Frances Bourliot, Justice

*1 This case involves a conflict-of-laws dispute in a wrongful death action where the decedent, Jason Wellons, was covered by workers’ compensation insurance. Appellants Myra Lisa Wellons, Jason’s widow, and Megan Wellons, Jason’s daughter, appeal from the trial court’s determination that Louisiana law should apply to the claims against appellee Valero Refining—New Orleans, L.L.C. (“VRNO”) and from the court’s final take-nothing judgment favoring VRNO. Jason’s injuries occurred at VRNO’s refinery in St. Charles Parrish, Louisiana, and he later died in St. Charles Parish. However, Jason was domiciled and hired in Texas, and appellants received Texas workers’ compensation benefits.

In addition to asserting that the trial court erred in applying Louisiana law, appellants also assert that the trial court erred in prohibiting one of their expert witnesses from testifying as to the intent of VRNO’s personnel and that VRNO’s counsel made incurably improper statements during closing argument. We affirm.

Background

Jason was hired by J.V. Industrial Companies, Ltd. (“JVIC”), a Texas corporation, to work a turnaround at VRNO’s St. Charles Refinery in Norco, Louisiana. Jason was a Texas resident and was hired in Texas but specifically for the turnaround in Louisiana.

On March 17, 2015, Jason was working on a pipe rack at the refinery approximately 30 feet above the ground while wearing an impermeable chemical suit with the wrists and ankles taped. When Jason became overheated and collapsed, VRNO emergency personnel responded to the situation. Jason was lowered from the pipe rack and taken to a local hospital, where he died the next day. An autopsy concluded that Jason died as the result of heatstroke. Appellants contend that the delays in responding to the situation and failure to timely and properly treat Jason’s condition, including failing to quickly lower his body temperature, led to his death. VRNO asserts that its personnel worked as quickly and efficiently as possible under difficult circumstances. After Jason’s death, appellants received Texas workers’ compensation survivor benefits with JVIC listed as the insured employer on the claim documents.

Appellants sued VRNO, JVIC, Valero Services, Inc., and several other defendants in a Texas court, bringing a wrongful-death action and alleging negligence and gross negligence. By the time the case reached the jury, only VRNO remained as a defendant. After extensive briefing and argument by the parties, the trial court determined that the claims against VRNO should be determined under the substantive laws of Louisiana—which permit recovery for wrongful death when a decedent is covered by workers’ compensation only when the defendant committed intentional conduct—and not the substantive laws of Texas, which permit recovery of exemplary damages in such cases for gross negligence.

During trial, after an objection by VRNO, the trial judge ruled that one of appellants’ expert witnesses, Dr. John McManus, would not be permitted to testify regarding the subjective intent of VRNO or its employees. During closing argument, VRNO’s counsel made arguments concerning the fact appellants had to prove intentional conduct. At one point, appellants’ counsel tried to object to the argument, but the trial judge overruled the objection and told counsel to sit down.

*2 Question no. 1 in the jury charge asked:

Did the intentional conduct, if any, of Valero Refining—New Orleans, LLC proximately cause Jason Wellons’ death?

In considering the conduct of Valero Refining—New Orleans, LLC, consider only Valero Refining-New Orleans, LLC’s, conduct dealing with the rescue and providing emergency medical care after Mr[.] Wellons’ injury became known.

“Intentional conduct” means that one or more Valero Refining—New Orleans, LLC employee either (1) consciously desired the physical result of his actions or (2) knew that the result is substantially certain to follow from his actions. If a Valero Refining—New Orleans, LLC employee knew that the consequences are certain, or substantially certain, to result from his actions, and still goes [sic] ahead, it is treated by the law as if Valero had in fact desired to produce the result.

“Substantially certain” means virtually sure, inevitable and incapable of failing.

“Proximate cause” means a cause that was a substantial factor in bringing about an event, and without which cause such event would not have occurred[.] In order to be a proximate cause, the act or omission complained of must be such that a person using the degree of care required of him would have foreseen that the event, or some similar event, might reasonably result therefrom. There may be more than one proximate cause of an event.

On a 10-2 vote, the jury found that the intentional conduct of VRNO’s employees did not proximately cause Jason’s death. Because of that answer, the jury was not required to and did not answer any other questions.

Discussion

I. Conflict of Laws

In their first issue, appellants contend that the trial court erred in holding that Louisiana law governed the claims against VRNO. We will first explain the standards by which we determine which law to apply, and then we will apply those standards to the facts of this case.

A. Governing Law

We need not decide which state’s laws apply unless those laws conflict. Sonat Expl. Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228, 231 (Tex. 2008). The workers’ compensation laws of both Texas and Louisiana contain exclusive remedy provisions that limit the claims available in wrongful death actions when the decedent was covered by workers’ compensation. See Tex. Labor Code § 408.001(a)-(b); La. Rev. Stat. § 23:1032. Under the Texas statute,

[r]ecovery 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 [except for] the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence.

Tex. Labor Code § 408.001(a)-(b). Under the Louisiana statute,

except for intentional acts ... the rights and remedies herein granted to an employee or his dependent on account of an injury, or compensable sickness or disease for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights, remedies, and claims for damages, including but not limited to punitive or exemplary damages.

*3 La. Rev. Stat. § 23:1032A(1)(a). The parties agree, as do we, that these laws conflict in that, as applied to today’s case, the exception to the exclusive remedies provision of the Louisiana statute includes only liability resulting from an intentional act, whereas the exception to the exclusive remedies provision of the Texas statute permits the recovery of exemplary damages if an employee’s death was caused by the employer’s intentional conduct or by the employer’s gross negligence. See Tex. Labor Code § 408.001(a)-(b); La. Rev. Stat. § 23:1032(A), (B).

The issue of which state’s substantive law applies is a question of law for the court to decide. Torrington Co. v. Stutzman, 46 S.W.3d 829, 848 (Tex. 2000). Thus, we review de novo the trial court’s decision to apply Louisiana law. See Mn. Mining & Mfg. Co. v. Nishika Ltd., 955 S.W.2d 853, 856 (Tex. 1996); Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 70 (Tex. App.—Houston [14th Dist.] 2004, no pet.). We note, however, that determining the contacts to be considered in resolving the legal question may entail issues of fact. Sonat Expl., 271 S.W.3d at 231.

When there is a conflict of laws, Texas courts use the Restatement’s “most significant relationship” test to determine which law to apply. See Restatement (Second) of Conflict of Laws §§ 6, 145 (1971); Hughes Wood Prods., Inc. v. Wagner, 18 S.W.3d 202, 205 (Tex. 2000). Section 6 of the Restatement sets out the relevant general factors to consider when determining which law to apply.1 Section 145 sets forth the factual matters to be considered when applying the principles of section 6 in a tort case. Hughes Wood, 18 S.W.3d at 205.2

The Texas Supreme Court has also instructed on numerous occasions that more specific Restatement provisions can apply in determining conflicts-of-laws issues in particular contexts. See id. at 206 n.2 (listing cases and contexts). In Hughes Wood, the court specifically stated that Restatement section 184 provides the standards by which a court is to determine immunity from a tort suit when an employee is covered by workers’ compensation insurance. Id. at 205-06. That section provides:

Recovery for tort or wrongful death will not be permitted in any state if the defendant is declared immune from such liability by the workmen’s compensation statute of a state under which the defendant is required to provide insurance against the particular risk and under which

(a) the plaintiff has obtained an award for the injury, or

(b) the plaintiff could obtain an award for the injury, if this is the state

*4 (1) where the injury occurred, or (2) where the employment is principally located, or (3) where the employer supervised the employee’s activities from a place of business in the state, or (4) whose local law governs the contract of employment under the rules of §§ 187–188 and 196.

Restatement (Second) of Conflict of Laws § 184.3

In Hughes Wood, the court considered, as we do here, whether the Texas or Louisiana workers’ compensation exclusivity provision applied. In doing so, the court noted that “there is no policy reason to refuse to apply Louisiana’s exclusive workers’ compensation remedy.” Hughes Wood, 18 S.W.3d at 207.4

B. Application to the Facts

The key issues in this case for analysis under section 184 are (1) whether VRNO would have immunity under Louisiana law that it would not have under Texas law and (2) whether appellants have obtained or could obtain Louisiana workers’ compensation benefits. See id. If VRNO has greater immunity under Louisiana law and appellants have received or could receive Louisiana benefits, under section 184, Louisiana law applies to the claims against VRNO. See id. We discuss each issue in turn and conclude that Louisiana law was properly applied in this case.

1. Immunity

Appellants do not dispute that given the facts of this case, VRNO would have immunity under Louisiana law that it would not have under Texas law. Louisiana provides that in addition to an injured worker’s direct employer, a “statutory employer” also is immune from suit, except for liability resulting from an intentional act, when an injured worker is covered by workers’ compensation insurance. See La. Rev. Stat. §§ 23:1032(A)(1)(a); 23:1061; St. Angelo v. United Scaffolding, Inc./X-Serv., Inc., 40 So. 3d 365, 368-70 (La. App. 4 Cir. 2010); Lopez v. U.S. Sprint Commc’ns Co., 973 So. 2d 819, 823-25 (La. App. 4th Cir. 2007); see also Hughes Wood, 18 S.W.3d at 207.5 A party qualifies as a statutory employer, among other possibilities, if the party undertook “to execute any work which is a part of his trade, business, or occupation in which he was engaged at the time of the injury ... and contracts with any person for the execution thereof.” La. Rev. Stat. §§ 23:1032(A)(2); see also id. § 23:1061(A)(1); St. Angelo, 40 So. 3d at 368-70. When a contract between the injured worker’s direct employer and the party in question recognizes the existence of a statutory-employer relationship, it is presumed that the party is the worker’s statutory employer. See La. Rev. Stat. § 23:1061(A)(3); Johnson v. Motiva Enters. LLC, 128 So. 3d 483, 489 (La. App. 5 Cir. 2013). This presumption can be rebutted by evidence that the work in question was “not an integral part of or essential to the ability of the principal to generate that individual principal’s goods, products, or services.” La. Rev. Stat. § 23:1061(A)(3); see also Johnson, 128 So. 3d at 489.

*5 Here, the contract governing the turnaround between JVIC, Jason’s direct employer, and VRNO expressly recognized a statutory-employer relationship. Appellants offered no evidence to rebut the presumption that this contract created. See La. Rev. Stat. § 23:1061(A)(3); Johnson, 128 So. 3d at 489. Accordingly, as Jason’s statutory employer, VRNO possessed immunity under Louisiana law that it did not possess under Texas law. See La. Rev. Stat. §§ 23:1032(A)(1)(a); 23:1061; St. Angelo, Inc., 40 So. 3d at 368-70; Lopez, 973 So. 2d at 823-25.

2. Louisiana benefits

We next turn to the question of whether appellants have obtained or could obtain Louisiana workers’ compensation benefits. See Hughes Wood, 18 S.W.3d at 207; Restatement (Second) of Conflict of Laws § 184(b). It is undisputed that appellants have only received benefits under the Texas workers’ compensation system and have not sought benefits under the Louisiana system. The fact that out-of-state benefits are being received, however, is not a bar to the receipt of benefits under the Louisiana system. See La. Rev. Stat. §§ 23:1035.1(2). The out-of-state benefits simply act as a credit against any Louisiana benefits. Id. § 23:1035.1(2)(c).

Appellants instead assert that they could not now obtain benefits in Louisiana because any such claim would be barred under Louisiana Revised Statutes section 23:1209(A)(1) as more than a year has passed since Jason’s death without a claim being filed in Louisiana. Section 1209(A)(a) specifically provides that

(1) [i]n case of personal injury, including death resulting therefrom, all claims for payments shall be forever barred unless within one year after the accident or death the parties have agreed upon the payments to be made under this Chapter, or unless within one year after the accident a formal claim has been filed....

La. Rev. Stat. §§ 23:1209(A)(l).

As VRNO points out, however, prescription under section 1209(A)(1) may be interrupted in certain circumstances. One such tolling provision is set forth in section 1209(A)(2), which provides that “[w]here such payments have been made ..., the limitation shall not take effect until the expiration of one year from the time of making the last payment....” Louisiana courts have interpreted this provision as encompassing workers’ compensation payments made through another state’s system. See Lentz v. N. Am. Van Lines, Inc., 582 So. 2d 984, 986 (La. App. 1 Cir. 1991); Ryder v. Ins. Co. of N. Am., 282 So. 2d 771, 774–75 (La. App. 3 Cir. 1973); cf. Chance v. Fid. & Cas. Co. of N.Y., 509 So. 2d 593, 599–600 (La. App. 3 Cir. 1987) (holding that payments under federal compensation system interrupted prescription under section 1209(A)(1)). It is established and undisputed in this case that payments to appellants under the Texas system are ongoing; thus, the prescription of the claim for Louisiana benefits is interrupted. See Lentz, 582 So. 2d at 986; Chance, 509 So. 2d at 599–600; Ryder, 282 So. 2d at 774–75.6 Appellants do not make any other arguments about whether they could still obtain Louisiana benefits.

3. Conclusion

*6 Because appellants could still obtain Louisiana benefits and VRNO has greater immunity under Louisiana law than Texas law, Restatement section 184 dictates that Louisiana law applies to the claims against VRNO. See Hughes Wood, 18 S.W.3d at 207; Restatement (Second) of Conflict of Laws § 184. Accordingly, the trial court did not err in applying Louisiana law to those claims and we overrule appellants’ first issue.

II. Expert Testimony on Intent

In their second issue, appellants contend that the trial court erred in refusing to permit one of their experts, Dr. John McManus, to testify as to whether certain conduct of VRNO personnel was intentional. McManus, one of several experts to testify for appellants, was presented as an expert in emergency medicine. He testified at length regarding the proper protocols, diagnosis, and treatment of heatstroke as well as the conditions first-responders encountered at the refinery and the perceived failings of VRNO personnel in responding to the emergency. McManus was quite critical of the St. Charles Refinery’s emergency system and protocols and of the decisions made and treatment undertaken. Among other critiques, he concluded that there was no justifiable explanation as to why VRNO personnel did not timely and effectively lower Jason’s body temperature or why there was a delay in calling 911. McManus further stated that by the time VRNO got Jason transferred to a St. Charles Parish ambulance, it was substantially certain that he was going to die because they had not sufficiently lowered his temperature.

Prior to trial, VRNO filed a motion to exclude testimony from McManus regarding intent. As mentioned in the motion, McManus discussed VRNO employees’ intent several times in his expert report.7 Although the trial court denied this motion after a brief hearing, VRNO urged the court to reconsider the ruling shortly before McManus testified during trial. In a conference held outside the jury’s presence, the trial court reconsidered its earlier ruling and held that McManus would not be “allowed to testify to what was the subjective intent of Valero and its employees.” The court further expounded, “I don’t think that he’s entitled to do that unless he has some evidence that they made statements or did other things that would lead him as a professional to conclude that they had a specific intent.”8

*7 A witness “qualified as an expert by knowledge, skill, experience, training, or education” may present opinion testimony if the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue. Tex. R. Evid. 702; see also KMart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000) (per curiam); GTE Sw., Inc. v. Bruce, 998 S.W.2d 605, 620 (Tex. 1999). For expert testimony to be admissible, the proponent of the testimony must establish that the expert is qualified and that his testimony is relevant and based upon a reliable foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). A trial court has broad discretion in deciding whether to admit expert testimony, and its decision will not be disturbed on appeal absent an abuse of discretion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 578 (Tex. 2006).

Under Texas Rule of Evidence 103, a party complaining of the exclusion of evidence must inform the trial court of the substance of the excluded evidence by an offer of proof, unless the substance was apparent from the context. Tex. R. Evid. 103(a)(2); In re N.R.C., 94 S.W.3d 799, 806 (Tex. App.—Houston [14th Dist.] 2002, pet. denied). During the conference on McManus’s testimony, although appellants’ counsel argued McManus should be allowed to testify regarding intent, counsel did not provide any specifics regarding McManus’s proposed testimony, not whose intent he planned to testify to or how the testimony would aid the jury. Near the end of the conference, appellants’ counsel stated his intention to make a bill of exception or offer of proof with McManus, to which the judge replied, “Absolutely. No problem.” It does not appear, however, that any such bill or offer was made. Later, during appellants’ counsel’s examination of McManus, the following exchange occurred:

Q. [D]oes their policy and procedure say that EMS should be called immediately and there should be a transport?

A. Yes.

Q. And so with regard to both Charles Adams and Nurse Rulapaugh saying they wanted to wait until Jason Wellons got on the ground before they did their evaluation to call 911, what is your evaluation of that?

A. That would be a [sic] intentional delay and it resulted in the death of Mr. Wellons.

VRNO’s counsel: Excuse me. Judge, object to this witness giving opinions on intent of the Valero people.

THE COURT: Okay. That’s sustained.

Appellants’ counsel: We can restrain. [sic]

VRNO’s counsel: Can we instruct the jury?

THE COURT: Instruct the jury ... to disregard the witness’[s] characterization.

Q. Okay. So let’s just say this:

Can you think of any reason whatsoever to wait until Jason Wellons hit the ground if he has shown signs of heatstroke when he’s up in the rack?

A. I cannot. And they—that would be a violation of their own protocol.

In their briefing to this court, appellants point to this exchange as “[a]n example of the type of testimony that would have been offered.” We presume without deciding that appellants have preserved this issue for our review. See Tex. R. Evid. 103(a)(2); In re N.R.C., 94 S.W.3d at 806.

Appellants argue at length that experts are allowed to testify as to ultimate issues of fact. While this is true under appropriate circumstances, see, e.g., Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001) (“Otherwise admissible opinion testimony is not objectionable because it embraces an ultimate issue of fact.”), the proponent of such evidence is still required to show that such expert testimony is necessary to “assist the trier of fact to understand the evidence or to determine a fact in issue.” Tex. R. Evid. 702; see also Honeycutt, 24 S.W.3d at 360; Bruce, 998 S.W.2d at 620.

*8 When the jury is equally competent to form an opinion about an ultimate fact issue or an expert’s testimony is within the common knowledge of the jury, the trial court should exclude the expert’s testimony. Honeycutt, 24 S.W.3d at 360. In other words, if the issue involves only general knowledge and experience rather than expertise, it is within the province of the jury to decide. See Bruce, 998 S.W.2d at 620.

Appellants do not offer any explanation in their briefing as to why the jury needed McManus to tell them that the VRNO employees wanting to wait until Jason was brought down from the pipe rack to evaluate him and decide whether to call 911 was intentional. Appellants likewise do not explain why the jury needed McManus’s expert opinion on any other matter of subjective intent.9 The trial court could have reasonably concluded that the question of whether the actions and inactions in question were intentional was not so complex as to require expert testimony to help jurors draw their own conclusions. See, e.g., Mega Child Care, Inc. v. Tex. Dep’t of Protective & Regulatory Servs., 29 S.W.3d 303, 310 (Tex. App.—Houston [14th Dist.] 2000, no pet.) As discussed above, McManus gave a full-throated critique of VRNO’s policies and protocols at the St. Charles Refinery as well as of the actions VRNO personnel took and failed to take. Appellants have not established that the trial court abused its discretion in refusing to permit McManus to testify regarding the subjective intent of VRNO or its employees. See Honeycutt, 24 S.W.3d at 360-61 (holding testimony of human factors and safety expert was not necessary to help the jury determine whether conditions at store created an unreasonable risk of injury). Accordingly, we overrule appellants’ second issue.

III. Closing Argument

In their third issue, appellants assert that VRNO’s counsel made improper and incurable statements to the jury during closing arguments. Specifically, appellants complain that VRNO’s counsel suggested in his argument that appellants were asserting and had to prove that VRNO personnel intended to kill or murder Jason in order to be successful on their claims. As will be discussed below, appellants really make two different complaints under this issue—a complaint about the references to an intent to kill, which was not preserved by an objection, and a complaint about a reference to murder, which arguably was preserved by objection.

A litigant is entitled to have his counsel argue the facts of the case to the jury. Zurita v. Lombana, 322 S.W.3d 463, 482 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). Trial counsel may properly discuss the reasonableness of the evidence as well as the probative effect, or lack thereof, of the evidence. Id. Counsel should be allowed wide latitude in arguing the evidence and the reasonable inferences from the evidence to the jury. Id. at 483. Control over counsel during closing argument is within the sound discretion of the trial court and will not be disturbed absent clear abuse of that discretion. Duke v. Jack in the Box E. Div., L.P., No. 14-15-00798-CV, 2017 WL 2561245, at *2 (Tex. App.—Houston [14th Dist.] June 13, 2017, pet. denied) (mem. op.).

A. Counsel’s Remarks

To understand VRNO’s counsel’s closing remarks, we must first recall that Question no. 1 in the jury charge asked whether the intentional conduct of VRNO proximately caused Jason’s death, and the accompanying two-part definition defined “intentional conduct” as meaning “that one or more [VRNO] employee either (1) consciously desired the physical result of his actions or (2) knew that the result is substantially certain to follow from his actions.” In his remarks, defense counsel stated generally that appellants’ claim was that VRNO “intentionally caused [Jason’s] death,” “intentionally killed” Jason, and were “trying to kill” Jason, but counsel insisted, contrary to that claim, VRNO personnel were actively trying to help Jason, not kill him.

*9 In specifically discussing the first part of the charge definition of intentional conduct—“consciously desired the physical result of his actions”—counsel likened the requirement to the Texas penal statute for murder, stating that it required evidence that a VRNO employee consciously wanted to cause Jason’s death. At this point, appellants’ counsel stated his first and only objection to this line of argument. Appellants’ counsel, however, did not state the complete grounds for his objection before the judge overruled the objection and instructed him to sit down. Counsel stated: “Excuse me, Your Honor. [H]e’s arguing the murder that’s—.”10 This was also VRNO’s counsel’s only use of the word “murder” in his argument.

In discussing the second part of the definition—“knew that the result is substantially certain to follow from his actions”—VRNO’s counsel acknowledged that this was the section on which appellants were relying. He also emphasized the high bar set by the requirement of substantial certainty and urged the jury to confine its consideration to the time period after Jason’s injury became known.

In his closing remarks, appellants’ counsel reiterated that appellants were not claiming any VRNO personnel “consciously desired the physical result,” i.e., Jason’s death, but they knew untreated heatstroke is deadly and yet failed to timely and properly treat Jason. Appellants’ counsel also insisted that VRNO failed to follow its own procedures and that bad company policies and inadequate training and supervision equaled intent as defined in the second part of the definition. In direct response to defense counsel’s argument, appellants’ counsel stated, “don’t think because we didn’t prove they murdered him, that we didn’t prove that it was substantially certain” that VRNO personnel’s inaction would lead to Jason’s death.

B. References to Intent to Kill

We begin our analysis with appellants’ complaint about VRNO’s counsel’s references to an intent to kill. Appellants state that VRNO’s counsel asserted appellants claimed and had to prove VRNO personnel possessed an intent to kill Jason in order for appellants to be successful in the lawsuit. As set forth above, VRNO’s counsel did make several references to an intent to kill, but at no point did appellants object to those references. If the probable harm from an improper jury argument is curable, then the error must be preserved by obtaining an adverse ruling on a timely objection, motion to instruct the jury, or motion for mistrial. Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008) (per curiam); DeWolf v. Kohler, 452 S.W.3d 373, 396 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Only when argument is deemed so prejudicial and inflammatory that its impact would not be curable by an instruction to disregard by the trial court is no objection necessary. Clark v. Bres, 217 S.W.3d 501, 509 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). And even then, the complaint at least must be raised in a motion for new trial, as appellants did here. See Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009); Clark, 217 S.W.3d at 509 n.1.

In order to show that VRNO’s counsel made an incurable argument, appellants must prove: (1) an improper argument was made; (2) it was not invited or provoked; (3) it was not curable by a prompt withdrawal of the statement by counsel or a reprimand or instruction by the trial court; and (4) by its nature, degree, and extent, the argument constituted harmful error based on an examination of the entire record to determine the argument’s probable effect on a material finding. Clark, 217 S.W.3d at 509. The duration of the argument, whether it was repeated or abandoned, and whether there was cumulative error are factors for consideration. Id. Appellants must also show that the probability the improper argument caused harm is greater than the probability the verdict was grounded on proper proceedings and evidence. Id. Instances of truly incurable jury argument are rare. Phillips, 288 S.W.3d at 883. Appellants must demonstrate that “the offensive argument was so extreme that a ‘juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.’ ” Id. (quoting Goforth v. Alvey, 153 Tex. 449, 271 S.W.2d 404, 404 (1954)).

*10 As stated above, VRNO’s counsel’s remarks must be viewed in light of the definition of “intentional conduct” provided in the charge as meaning a VRNO employee either “consciously desired the physical result of his actions” or “knew that the result [wa]s substantially certain to follow from his actions.” In this light, it is clear that counsel’s remarks regarding an intent to kill were either a shorthand way to refer to the fact that appellants had to prove “intentional conduct” that resulted in Jason’s death or referenced the first part of the charge definition—“consciously desired the physical result of his actions.” It appears from context that, at different points, defense counsel meant the remarks in each of these ways. Regardless, VRNO’s counsel also made it clear that he understood that appellants were not basing their claim on the first part of the definition but instead were basing their claim on the second part—“knew that the result [wa]s substantially certain to follow from his actions.” While VRNO’s counsel suggested that to be successful under the first part of the definition, appellants would have to prove an intent to kill, he made a different argument in regards to the second part of the definition, emphasizing the high level of proof required to show substantial certainty and urging the jury to confine its consideration to the time period after Jason’s injury became known. Appellants’ trial counsel reiterated this dichotomy in his own remarks to the jury, explaining that they were not seeking a finding under the first part and thus did not have to prove an intent to kill.

Considering the entirety of the closing arguments and the record as a whole, VRNO’s counsel’s references to an intent to kill was not “so extreme that a juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” Phillips, 288 S.W.3d at 883. The probability that the improper jury argument caused harm is not greater than the probability that the verdict was grounded on proper proceedings and evidence. See Clark, 217 S.W.3d at 509. Even assuming the argument was improper, it was not incurable in nature.

C. Reference to Murder

As explained above, the only reference VRNO’s counsel made to murder came when he stated that the first part of the court’s “intentional conduct” definition was “similar to the Texas statute on murder” in that it required a VRNO employee to consciously desire Jason’s death. Even assuming that appellants’ counsel objected sufficiently to this argument and such argument was improper, based on the entire record of this case, we cannot say the argument, either alone or in combination with the other complained-of argument, probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a) (providing that no judgment may be reversed for error unless the error probably caused the rendition of an improper judgment or prevented the proper presentation of the case to the court of appeals); Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839–40 (Tex. 1979) (explaining that complainant must show that the probability an improper argument caused harm is greater than the probability that the verdict was grounded on proper proceedings and evidence); Dallas Cty. v. Crestview Corners Car Wash, 370 S.W.3d 25, 48 (Tex. App.—Dallas 2012, pet. denied) (holding arguments, although improper, did not either alone or in combination with other arguments probably cause the rendition of an improper judgment.). Counsel’s comment was a clear attempt to explain the first part of the charge definition of “intentional conduct,” the part that both VRNO’s counsel and appellants’ counsel agreed was inapplicable to the case. In the absence of demonstrable harm from any of the closing remarks appellants complain about, we overrule appellants’ third issue.

Conclusion

Finding no merit in any of appellants’ issues, we affirm the trial court’s judgment.

Footnotes

1

The general factors listed in section 6 include:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Restatement (Second) of Conflict of Laws § 6(2).

2

The factual matters listed in section 145 include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

Restatement (Second) of Conflict of Laws § 145(2).

3

As the supreme court explained in Hughes Wood, section 184 applies the section 6 factors in the workers’ compensation exclusive-remedy context. 18 S.W.3d at 206. Its application protects the parties’ justified expectations because “[i]t is thought unfair that a person who is required to provide insurance against a risk under the workmen’s compensation statute of one state which gives him immunity from liability for tort or wrongful death should not enjoy that immunity in a suit brought in other states.” Restatement (Second) of Conflict of Laws § 184 cmt. b (1971).

Section 184 further appreciates the relative interests of other states in providing an exclusive workers’ compensation remedy, because “to deny a person the immunity granted him by a workmen’s compensation statute of a given state would frustrate the efforts of that state to restrict the costs of industrial accidents.” Id. Moreover, “[a]ll states are sympathetic with the policies underlying workmen’s compensation, and all states grant certain persons immunity from liability for tort or wrongful death....” Id. Thus, applying section 184 (1) serves the needs of the interstate system, see id. § 6(2)(a); (2) applies the relevant policies of the forum, see id. § 6(2)(b); (3) promotes the basic policies underlying the workers’ compensation system, see id. § 6(2)(c); (4) protects justified expectations, see id. § 6(2)(d); (5) facilitates certainty, predictability, and uniformity of result, see id. § 6(2)(f); and (6) eases the determination and application of the law to be applied, see id. § 6(2)(g). Hughes Wood, 18 S.W.3d at 206.

4

Appellants urge us to adopt their theory that if the employee was initially hired in the same state in which workers’ compensation benefits are paid, that state’s substantive law should always apply over the laws of the state where the injury occurred. We decline to adopt this theory in light of the supreme court’s direction to apply Restatement section 184 in cases such as this.

5

Appellants conceded in the trial court that Jason was covered by workers’ compensation insurance in Louisiana and do not suggest otherwise on appeal. An insurance policy that appears to cover Jason in Louisiana appears several times in the record.

6

It should be noted that it is something of an open question in Louisiana law as to whether out-of-state payments made by or on behalf of a direct employer would also serve to interrupt prescription on claims involving a statutory employer. Although we found no Louisiana case considering this exact issue, it would appear that the interruption of prescription due to out-of-state payments would encompass both the direct employer and the statutory employer because under Louisiana law the liability of the two employers is considered solidary. See, e.g., Stewart v. Boh Bros. Const. Co., 128 So. 3d 398, 402 (La. App. 5 Cir. 2003); Isaac v. Lathan, 836 So. 2d 191, 194–95 (La. App. 1 Cir. 2002); see also Glasgow v. PAR Minerals Corp., 70 So. 3d 765, 769-70 (La. 2011) (explaining that when prescription is interrupted for one solidary obligor, it is interrupted for all solidary obligors).

In its appellate briefing, VRNO also identifies a second ground for holding that prescription was interrupted under the facts of this case: in Louisiana, the timely filing of a tort action against an employer in a court of competent jurisdiction interrupts prescription on a workers’ compensation claim based on the same occurrence. See, e.g., Torres v. La. Shrimp & Packing Co., 32 So. 3d 803, 803 (La. 2010); Isaac v. Lathan, 836 So. 2d 191, 194–95 (La. App. 1 Cir. 2002). The present lawsuit was clearly timely filed against VRNO as it was filed less than a year after Jason’s injury and death; however, because VRNO did not raise this ground in the trial court, we will not consider this ground on appeal.

7

Among McManus’s statements in his report about intent were the following:

The circulatory status was intentionally not documented or fully assessed according to medical statements.... The intentional choice not to treat Mr. Wellons during the “golden hour” time period made it substantially certain that he would suffer morbidity and/or mortality.... There was deliberate absence of medical equipment immediately available to assess, monitor and treat Mr. Wellons.... During the medical extrication and treatment by the ERT for Mr. Wellons there was intentionally no organized medical communication and treatment. There was intentionally no communication or coordination between the nurse on the ground and the medical personnel during the extrication on treatment or possible transportation to nearest hospital.... Once the patient was extricated, there was intentionally no continuous cooling performed while awaiting 911 EMS. There was a deliberate lack of documented medical treatment provided other than legal statements for this case. Although the initial medical response by the ERT was swift, there was intentionally absence of a clear treatment plan during extrication and while awaiting transport. The deliberate absence of prehospital communication and medical treatment resulted in certain mortality for this patient.

8

VRNO’s motion also sought to prevent McManus from testifying about Jason’s cause of death or the question of timing as it related to the cause of death. The trial court denied these portions of the motion and did not reconsider them during trial.

9

See, for example, the statements regarding intent in McManus’s expert report. See n.8 supra.

10

The judge had also earlier instructed VRNO’s counsel to sit down when he had made an objection during appellants’ counsel’s closing remarks.

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

GERARDO BATISTA ORTIZ, Appellant

v.

BUILDERS FIRST SOURCE - SOUTH TEXAS, LP, Appellee

NO. 14-19-00394-CV

|

Opinion filed December 29, 2020

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 15-DCV-225828A

Panel consists of Justices Christopher, Bourliot, and Spain (Justices Bourliot and Spain concurring in the judgment only).

OPINION

Tracy Christopher Justice

*1 Affirmed and Opinion filed December 29, 2020 (Justices Bourliot and Spain concurring in the judgment only).

In this appeal from a trial court’s confirmation of an arbitration award, appellant Gerardo Batista Ortiz contends the trial court erred in failing to grant his motion to modify the arbitration award to include prejudgment interest and costs. We affirm.

I. BACKGROUND

Ortiz was injured in the course of his employment with Builders First Source – South Texas, LP., a nonsubscriber to workers’ compensation insurance. Builders First Source maintains an “Injury Benefit Plan,” which requires claims that are not settled through mediation to be arbitrated under the Federal Arbitration Act1 and the American Arbitration Association’s (AAA’s) Employment Arbitration Rules and Mediation Procedures.

The first arbitration in this case ended with Ortiz non-suiting his claims without prejudice and the arbitrator sanctioning Ortiz in connection with a discovery dispute. Builders First Source-S. Tex., LP v. Ortiz, 515 S.W.3d 451, 454–55 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (“Ortiz I”). Ortiz then added Builders First Source as a defendant in an ongoing lawsuit against other parties concerning the same personal injuries. In the district court, Ortiz moved to vacate the arbitrator’s sanctions order based on evident partiality. Id. at 454. The trial court vacated the sanctions order and appointed a new arbitrator. Id. at 455. On appeal, we affirmed the vacatur but reversed the trial court’s appointment on the ground that the parties had agreed to go through the AAA for appointment of a new arbitrator. Id. at 460–61.

On remand, Ortiz reasserted his personal-injury claims against Builders First Source and the claims were arbitrated anew. This time, the arbitrator found in Ortiz’s favor. The arbitrator’s ruling is not in the record, but it appears from the parties’ representations that the arbitrator awarded Ortiz compensatory damages and post-award or post-judgment interest.

Both parties moved to modify the arbitrator’s ruling. Builders First Source sought to eliminate the award of interest, and Ortiz sought pre-judgment interest and costs. The arbitrator denied both motions on the ground that, under Rule 40 of the AAA’s Employment Arbitration Rules and Mediation Procedures, the arbitrator may modify an award only “to correct any clerical, typographical, technical, or computational errors in the award” and “is not empowered to redetermine the merits of any claim already decided.”

Thereafter, Builders First Source filed a motion in the trial court to confirm the arbitrator’s award, while Ortiz repeated his motion to modify. The trial court granted Builders First Source’s motion and denied Ortiz’s motion. On Builders First Source’s motion, the trial court severed the Ortiz’s claims against his employer from the remainder of the case, thereby rendering the confirmation order final and appealable. Ortiz now challenges the trial court’s rulings on the competing motions to modify or confirm the arbitration award.

II. STANDARD OF REVIEW AND GOVERNING LAW

*2 When reviewing claims under the Federal Arbitration Act (“the FAA”), we look to federal law to resolve substantive issues, but apply state law to resolve procedural issues. Ortiz I, 515 S.W.3d at 455 (citing Jack B. Anglin Co., Inc. v. Tipps, 842 S.W.2d 266, 272 (Tex. 1992)). Although we review de novo a trial court’s ruling confirming, modifying, or vacating an arbitration award, our review is “extraordinarily narrow.” Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 250 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (quoting Hughes Training, Inc. v. Cook, 254 F.3d 588, 593 (5th Cir. 2001)). Under the FAA, a trial court must confirm the arbitration award unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of the FAA. 9 U.S.C.A. § 9. The grounds set forth in sections 10 and 11 are exclusive. Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 586, 128 S. Ct. 1396, 1404, 170 L. Ed. 2d 254 (2008).

III. ANALYSIS

Citing Texas Civil Practice and Remedies Code section 171.091, Ortiz argues that the trial court erred in failing to modify the arbitrator’s award because there was “an evident miscalculation of numbers.” See TEX. CIV. PRAC. & REM. CODE ANN. § 171.091(a)(1)(A). Although Ortiz cites a provision in the Texas General Arbitration Act, he does not argue that the state statute governs this case. It is undisputed that the parties agreed in the Injury Benefit Plan that the arbitrator would “apply the substantive law (and the law of remedies) of Texas (other than the Texas General Arbitration Act)” and that the “arbitrator’s decision can be challenged in a state or federal court of law only on such basis as are available under the Federal Arbitration Act or on the basis that the arbitrator’s decision constitutes a manifest disregard of the law.” (emphasis added).2 We therefore consider his argument under a similar provision found in section 11 of the FAA, which provides that, “[w]here there was an evident material miscalculation of figures,” a district court “may modify and correct the award, so as to effect the intent thereof.” 9 U.S.C.A. § 11(a).

Ortiz does not argue, however, that the arbitrator intended to award prejudgment interest. To the contrary, Ortiz acknowledges that the arbitrator affirmatively refused his request to award him prejudgment interest and costs. He instead argues that, as a matter of first impression, the trial court should have the authority to modify an arbitration award to include prejudgment interest and costs because the parties agreed that Texas’s law of remedies would apply, and under Texas law, the prevailing party in a personal-injury case is entitled to these remedies.

We are aware of no FAA provision or state statute authorizing a trial court to modify an arbitration award to include prejudgment interest and costs, nor has Ortiz identified any such authority. A Texas statute states that “[a] judgment in a wrongful death, personal injury, or property damage case earns prejudgment interest,”3 but an arbitration award is not a judgment. Fogal v. Stature Constr., Inc., 294 S.W.3d 708, 722 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). On the other hand, there is ample authority to affirm a trial court’s denial of such a requested modification. See, e.g., id.; Forged Components, Inc. v. Guzman, 409 S.W.3d 91, 106 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“[N]either the FAA nor the Texas Finance Code authorizes an award of pre- or post-judgment interest when the arbitrator made no such award.”); Thomas Petroleum, Inc. v. Morris, 355 S.W.3d 94, 99 (Tex. App.—Houston [1st Dist.] 2011, pet. denied) (applying the FAA and affirming trial court’s refusal to modify the arbitration award to include pre- and post-judgment interest); Nuno v. Pulido, 946 S.W.2d 448, 452 (Tex. App.—Corpus Christi 1997, no writ) (reversing trial court’s modification of a personal-injury arbitration award that added pre-judgment interest).

*3 Ortiz does not discuss these authorities. He instead relies on caselaw addressing an arbitrator’s authority to modify an award, as opposed to a trial court’s authority to do so, or a trial court’s modification of an arbitration award under the Texas General Arbitration Act to correct the arbitrator’s error in calculating an award of prejudgment interest after the arbitrator expressed an intent to award it.4 Such cases are distinguishable not only because this case is governed by the FAA, but also because Ortiz actually submitted his request for prejudgment interest and costs to the arbitrator, who denied the request. Because the award accurately reflects the arbitrator’s intent, section 11(a) of the FAA does not apply.

Ortiz also argues that confirmation of the arbitration award violates public policy because the Injury Benefit Plan states that the arbitrator will apply “the substantive law (and the laws of remedies) of Texas,” and prejudgment interest is an available “remedy” under Texas law. Ortiz did not raise a public-policy argument in the trial court, and in any event, courts may not review the arbitrator’s decision on the merits “despite allegations that the decision rests on factual errors or misinterprets the parties’ agreement.” Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509, 121 S. Ct. 1724, 1728, 149 L. Ed. 2d 740 (2001) (per curiam). Moreover, the Injury Benefit Plan states that its dispute-resolution requirements apply not only to personal-injury claims but also to “any legal or equitable claim or dispute relating to ... this arbitration requirement.” Thus, “any award of attorney’s fees, interest, and costs was necessarily submitted to the arbitrators and a district court that made such an award would be impermissibly modifying the arbitrators’ decision.” Schlobohm v. Pepperidge Farm, Inc., 806 F.2d 578, 581 (5th Cir. 1986) (citing Kermacy v. First Unitarian Church, 361 S.W.2d 734, 735 (Tex. App.—Austin 1962, writ ref’d n.r.e.)). “In such circumstances, where the parties made an agreement intended to avoid court litigation by resolving the entire dispute through arbitration, intervention by the court to award additional relief would be inconsistent with the language and policy of the Federal Arbitration Act.” Id.

We overrule the sole issue presented.

IV. CONCLUSION

The arbitration award accurately reflected the arbitrator’s intent, without material miscalculation of figures. Because Ortiz’s requested modification to include prejudgment interest and costs would have awarded additional relief that was considered and rejected by the arbitrator, we conclude that the trial court did not err in refusing the requested modification and confirming the arbitration award. We accordingly affirm the trial court’s rulings.

Footnotes

1

9 U.S.C.A. §§ 1–307.

2

See also Ortiz I, 515 S.W.3d at 455 (“It is undisputed that the Federal Arbitration Act (the FAA) governs the arbitration provision at issue in this case.”).

3

TEX. FIN. CODE ANN. § 304.102.

4

See, e.g., Brad Herriage v. BNSF Logistics, LLC, No. 05-16-01232-CV, 2017 WL 5559570, at *7 (Tex. App.—Dallas Nov. 17, 2017, no pet.) (mem. op.) (arbitrator was permitted under the Texas General Arbitration Act to correct a computational error in the award of costs); Sydow v. Verner, Liipfert, Bernhard, McPherson & Hand, Chartered, 218 S.W.3d 162, 170 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (affirming trial court’s modification because arbitrator expressed the intent to award prejudgment interest but omitted it in the award); Baker Hughes Oilfield Operations, Inc. v. Hennig Prod. Co., Inc., 164 S.W.3d 438, 446 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (affirming modification under the Texas General Arbitration Act because the arbitrator awarded prejudgment interest but omitted the accrual date).

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

ROGELIO SALAS, Appellant

v.

FLUOR DANIEL SERVICES CORPORATION, Appellee

NO. 14-18-01103-CV

|

Opinion filed December 29, 2020

On Appeal from the 281st District Court

Harris County, Texas

Trial Court Cause No. 2017-31173

Panel consists of Justices Christopher, Bourliot, and Hassan (Christopher, J. concurring in result only).

MAJORITY OPINION

Meagan Hassan Justice

Affirmed in Part and Reversed and Remanded in Part and Majority

Rogelio Salas appeals the trial court’s grant of no-evidence and traditional summary judgment in favor of Fluor Daniel Services Corporation (“Fluor”), contending in five issues that the trial court erroneously granted summary judgment on his workers’ compensation retaliatory discharge claim under Texas Labor Code section 451.001(1) and (3). We affirm in part and reverse and remand in part.

BACKGROUND

Salas started working for Fluor in 2015 as a pipefitter at the Chevron Phillips Chemical Company’s (“CP Chem”) USGC Ethylene construction project. Salas understood the temporary nature of the project and that Fluor had a reduction of force policy as the project progressed. Salas also understood that Fluor employees were provided “workers’ compensation insurance coverage from Property/Casualty Insurance Company of Hartford through CP Chem’s Owner Controlled Insurance Program (“OCIP”) to protect [Fluor employees] in the event of work-related injury.”

On January 9, 2017, while walking to a safety meeting, Salas “stepped on uneven ground causing his left knee to twist and he fell against a pipe support.” Salas contacted his foreman and supervisor, Oliver Alanis, about the incident. Alanis in turn notified Fluor’s safety department and took Salas to the safety office. The Health, Safety, Environment Department (“HSE”) Supervisor Michael Fish took Salas to the doctor. According to the Incident Report of January 9, 2017, Salas “was taken to medical. While at medical[,] he was evaluated, determined to have no injuries, and no treatment was given.” Salas was released to return to work. Two days later, Salas again complained of pain after attempting to climb stairs and was taken to a doctor to be evaluated. The doctor gave him ibuprofen and released Salas back to work. Salas continued to complain of knee pain and was assigned to the safety office. He reported to the safety office every day and “sat there all day” until he was terminated; he did not perform any work during this time. The Daily First-Aid Records of January 12-13, 2017 state that Salas had left knee pain and was given ice therapy and ibuprofen. The January 16, 2017 Daily First-Aid Record states that Salas still had knee pain.

On January 16, 2017, Fish emailed the “Employers First Report of Injury or Illness” relating to Salas’s January 9, 2017 injury to CP Chem employees and a Fluor HSE supervisor. CP Chem sent the same injury report to its insurance administrator. On January 19, 2017, a claims analyst for CP Chem’s third-party insurance administrator was assigned to Salas’s workers’ compensation claim and requested additional information from Fluor about whether Salas had returned to work and what compensation he was receiving. The next day, Fluor responded, stating that “Salas has returned back to work at full duty. He is receiving full wages and hours as before the injury.... He is hourly. We do not owe him any partial benefits. The incident is not a lost time[.] He received treatment at Bayside Urgent Care.”

Later that day, Fluor placed Salas on its reduction of force list. The list contained Salas’s name and work position; it stated the date he was chosen for the reduction of force as January 20, 2017 and time as 2:30 p.m.; it stated the effective date as January 23, 2017. The list contained three signature rubrics. The first rubric, “Reviewed by: Human Resources Representative”, was blank. The second rubric, “Reviewed by: Superintendent/Designee”, was signed by Chris Bennett (Fluor’s senior construction manager) and by Richard Aycock (Fluor’s general superintendent who reported to Chris Bennett) on January 20, 2017. The third rubric, “Reviewed by: Site Manager/Designee”, was blank. According to Aycock’s deposition testimony, he would be informed by management that a reduction of force was necessary and that the supervisors in charge of a crew were expected to decide which employee would be subject to the reduction. He testified that crew supervisors are trusted to decide which employee is subject to reduction based on company-established factors. Aycock testified that the supervisor “passes the name of the individual” and Aycock reviews and approves the reduction without evaluating the supervisor’s decision. Aycock claimed that Salas’s immediate supervisor Alanis made the decision to lay off Salas.

On January 23, 2017, Alanis notified Salas that he was being terminated. Senior Human Resources Specialist Adrian Stockton conducted an exit interview with Salas that same day, and Salas signed an Employee Separation Form, which stated Salas was being terminated because of a reduction of force. The only other person who signed the separation form was Stockton. While the project manager’s signature was required for approval, only “N/A” appears on the form.

On January 26, 2017, Salas hired an attorney, who filed a workers’ compensation claim that same day for Salas’s January 9, 2017 injury. Salas filed suit in May 2017, alleging a workers’ compensation retaliatory discharge claim under Texas Labor Code section 451.001 and requesting actual and punitive damages.

Fluor filed a traditional and no-evidence motion for summary judgment on Salas’s claim. Fluor argued it is entitled to summary judgment because (1) “there is no evidence of a causal connection between Salas’ workers’ compensation claim and his termination”; (2) “there is no evidence that the layoffs at the project were a mere pretext for retaliation”; and (3) there is no evidence to support an exemplary damages award for Fluor’s alleged retaliatory discharge. Fluor also argued it was “independently entitled to summary judgment because Salas was not physically able to perform the essential functions of his job at the time of his termination.” Salas filed a summary judgment response, and Fluor filed a reply thereto.

The trial court held an oral hearing on Fluor’s summary judgment motion on September 28, 2018. After the hearing, Salas filed a “Post-Hearing Brief in Response to [Fluor]’s Motion for Summary Judgment”, in which he argued that he “met the standard for a protected act based on Labor Code § 451.001(3)” because he instituted or caused to be instituted a proceeding under the workers’ compensation statute. Salas argued that Fluor “evade[d] the holding” of applicable caselaw that supported his argument and erroneously argued inapplicable caselaw to support its summary judgment motion. Fluor filed a response to Salas’s brief, objecting to the brief as late-filed and asserting that Salas’s cited caselaw in support of his claim under section 451.001(3) is no longer applicable.

The trial court signed an order granting Fluor’s summary judgment motion and dismissing Salas’s claim with prejudice on September 28, 2018. Salas filed a motion for new trial, to which Fluor responded. The motion was overruled by operation of law, and Salas filed a timely notice of appeal.

ANALYSIS

On appeal, Salas challenges the trial court’s grant of summary judgment in favor of Fluor on his workers’ compensation retaliatory discharge claim raising five issues. We address each issue in turn.

I. Standard of Review

Where, as here, the trial court’s summary judgment does not state the grounds for its ruling, we affirm the judgment if any of the grounds advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); see also Muller v. Stewart Title Guar. Co., 525 S.W.3d 859, 868 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We review a summary judgment de novo. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). A party seeking summary judgment may combine a request for summary judgment under the no-evidence standard with a request under the traditional summary judgment standard in a single motion. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Cardenas v. Bilfinger TEPSCO, Inc., 527 S.W.3d 391, 398 (Tex. App.—Houston [1st Dist.] 2017, no pet.).

In a no-evidence motion for summary judgment, the movant asserts that there is no evidence of one or more essential elements of the claims for which the nonmovant bears 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); Drake Interiors, Inc. v. Thomas, 544 S.W.3d 449, 453 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i). 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). A fact issue exists if the nonmovant brings forth evidence that would enable reasonable and fair-minded jurors to differ in their conclusions. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005).

For a traditional summary judgment motion, the movant must demonstrate that no genuine issues of material fact exist and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). To be entitled to traditional summary judgment, a movant must conclusively negate at least one essential element of each of the nonmovant’s causes of action or conclusively establish each element of an affirmative defense. Am. Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). “Evidence is conclusive only if reasonable people could not differ in their conclusions.” City of Keller, 168 S.W.3d at 816. If the movant produces sufficient evidence to establish the right to summary judgment, the burden shifts to the nonmovant to come forward with competent controverting evidence raising a genuine issue of material fact. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Swoboda v. Ocwen Loan Servicing, LLC, 579 S.W.3d 628, 632 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

Here, Fluor sought summary judgment on traditional and no-evidence grounds “and while the burdens vary for the different types of motions, both parties presented summary judgment evidence.” See Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 790 (Tex. 2019). Thus, the “ ‘differing burdens are immaterial and the ultimate issue is whether a fact issue exists.’ ” Id. (quoting Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013)). A fact issue exists if there is more than a scintilla of probative evidence. Neely, 418 S.W.3d at 59. More than a scintilla of evidence exists when reasonable and fair-minded people could differ in their conclusions based on the evidence. Remaley v. TA Operating LLC, 561 S.W.3d 675, 678-79 (Tex. App.—Houston [14th Dist.] 2018, pet. denied); see also Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614, 625 (Tex. 2018); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). We review the evidence in the light most favorable to the nonmovant and indulge every reasonable inference and resolve any doubts against the motion. Scripps NP Operating, LLC, 573 S.W.3d at 790; City of Keller, 168 S.W.3d at 824.

II. Retaliatory Discharge

A. Applicable Law

Chapter 451 of the Texas Labor Code, also known as the Anti-Retaliation Law, creates a cause of action against a person who discharges or in any other manner discriminates 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; (3) instituted or caused to be instituted in good faith a proceeding under the Texas Workers’ Compensation Act; or (4) testified or is about to testify in a proceeding under the Texas Workers’ Compensation Act. Tex. Labor Code Ann. § 451.001; Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 55 (Tex. 2011). The Legislature’s purpose in enacting section 451.001 was to protect persons entitled to benefits under the Workers’ Compensation Act from being discharged for exercising their statutory rights and seeking to collect those benefits. In re Poly-Am., L.P., 262 S.W.3d 337, 350 (Tex. 2008) (orig. proceeding); Parker v. Valerus Compression Servs., LP, 365 S.W.3d 61, 66 (Tex. App.—Houston [1st Dist.] 2011, pet. denied).

“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) (quoting Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 453 (Tex. 1996) (citation and internal quotation marks omitted)). To prove a retaliatory discharge claim, the employee must show that the employer’s prohibited action would not have occurred when it did had the employee’s protected conduct not occurred. Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2005) (per curiam); see also Melendez, 477 S.W.3d at 312.

Under Texas’s burden-shifting analysis for workers’ compensation retaliatory discharge claims under section 451.001, the employee as part of his prima facie case must first establish a causal link between his termination and the employee’s protected conduct under section 451.001. See Datar v. Nat’l Oilwell Varco, L.P., 518 S.W.3d 467, 478-79 (Tex. App.—Houston [1st Dist.] 2017, pet. denied); Parker, 365 S.W.3d at 66; English v. Dillard Dep’t Stores, Inc., No. 14-04-00197-CV, 2005 WL 2875006, at *2 (Tex. App.—Houston [14th Dist.] Nov. 3, 2005, no pet.) (mem. op.). The employee does not have to prove that his participation in the protected conduct was the sole cause of his discharge. Simon v. Pentair Valves & Controls US LP, No. 14-16-00822-CV, 2018 WL 1542437, at *2 (Tex. App.—Houston [14th Dist.] Mar. 29, 2018, no pet.) (mem. op.); Cardenas, 527 S.W.3d at 399; see also Cont’l Coffee Prods. Co., 937 S.W.2d at 450.

“Circumstantial evidence, and the reasonable inferences from such evidence, can prove the causal connection.” Cont’l Coffee Prods. Co., 937 S.W.2d at 450. Circumstantial evidence sufficient to establish a causal link between the employee’s termination and his protected conduct includes: (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. See Melendez, 477 S.W.3d at 312; Cont’l Coffee Prods. Co., 937 S.W.2d at 451; Simon, 2018 WL 1542437, at *3. 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. See Cardenas, 527 S.W.3d at 399; Johnson v. City of Houston, 203 S.W.3d 7, 11 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

Once the employee establishes a causal link, 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; Simon, 2018 WL 1542437, at *3; see also Cardenas, 527 S.W.3d at 399. If the employer demonstrates a legitimate, non-discriminatory reason, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive to survive a motion for summary judgment. Parker, 365 S.W.3d at 67; see also Datar, 518 S.W.3d at 479. “The employee must present evidence that the employer’s asserted reason for the discharge or other adverse employment action was pretextual or ‘challenge the employer’s summary judgment evidence as failing to prove as a matter of law that the reason given was a legitimate, nondiscriminatory reason.’ ” Parker, 365 S.W.3d at 67-68; see also Johnson, 203 S.W.3d at 12.

B. Protected Conduct

With these principles and standards in mind, we turn to Salas’s first issue in which he contends the trial court erroneously granted summary judgment in favor of Fluor because “he engaged in a protected activity” under section 451.001(1) and (3).

1. Section 451.001(1)

We begin by determining whether Salas engaged in protected conduct under section 451.001(1).

Section 451.001(1) states that an employer is prohibited from terminating an employee “because the employee has filed a workers’ compensation claim in good faith”, thus requiring the employee to file a claim. See Tex. Lab. Code Ann. § 451.001(1) (emphasis added). Section 451.001(1) does not state that an employer is prohibited from terminating its employee because (1) another company notified its insurer of the employee’s injury and (2) the insurer assigned a workers’ compensation claim number for a potential future workers’ compensation claim. Section 451.001(1) therefore provides no support for Salas’s assertion that he engaged in protected conduct because CP Chem informed its insurer about Salas’s injury and the “workers’ compensation insurer assigned a workers’ compensation claim number and contacted Fluor” about Salas’s injury.

We further note that during oral argument, Salas stated the case before us is “a section 451.001(3) case” and is not really a “section 451.001(1) case” because he did not file a workers’ compensation claim as required by section 451.001(1).

Contrary to Salas’s assertion, we conclude there is no evidence that “he engaged in a protected activity under § 451.001(1).” Accordingly, we overrule Salas’s first issue with regard to his contention that the trial court erroneously granted summary judgment in favor of Fluor because “he engaged in a protected activity” under section 451.001(1).

2. Section 451.001(3)

In his first issue, Salas also argues the trial court erroneously granted summary judgment in favor of Fluor because he “provided evidence that he engaged in a protected act based on Labor Code § 451.001(3).” Salas points to “the following facts” as evidence: (1) “Salas reported his on-the-job injury to his employer/supervisor”, (2) “Salas received medical treatment for his injury from the company doctor”, (3) “[a]fter receiving medical treatment ... Salas told his supervisor he could not work in the field”, (4) “[r]ather than work, Fluor required that ... Salas work light duty by requiring him to sit on a couch in the safety office for the next ten days”, (5) “Fluor sent emails on January 9th, 10th, 13th, 16th, and 17th to its employees regarding ... Salas’s work injury and medical treatment, including attaching medical records”, (6) “CP Chem reported the injury to the worker’s compensation carrier”, and (7) “[t]he insurance adjuster[ ] assigned a Workers’ Compensation claim number, referred to the injury as a ‘claim,’ and contacted Fluor.” Salas argues his report of his on-the-job injury constituted protected conduct under section 451.001(3) because, by reporting his injury, he instituted or caused to be instituted a proceeding under the Workers’ Compensation Act as required by the statute.

a. Salas did not waive his claim under section 451.001(3)

Fluor counters that Salas “failed to preserve error on his argument that his report of his work-related injury constituted protected activity under § 451.001(3) because he did not timely assert this argument in his Response to F[luor]’s Motion for Summary Judgment.” Fluor claims that “Salas first raised this argument orally at the hearing on summary judgment and in a ‘Post-Hearing Brief,’ filed shortly after the hearing.” Salas responds that (1) his “opposition to summary judgment directly argued that [he] engaged in protected [conduct] under § 451.001, including specifically citing and quoting § 451.001(3)”, (2) he “also provided direct factual support for a protected act under § 451.001(3)”, and (3) “even if Salas had not sufficiently pleaded a protected act under 451.001(3), by arguing the issue at summary judgment hearing without objection, Fluor agreed to try this issue by express or implied consent of the parties under TRCP Rule 67.”

We reject Fluor’s waiver argument. First, we note that Salas’s live pleading does not limit his retaliatory discharge claim to section 451.001(1). In his first amended petition, Salas pleaded that Fluor “may not” terminate him “because [he] received an injury on the job and pursued protected activity under Labor Code Section 451.001.”

Second, Salas did not limit his summary judgment response to section 451.001(1); he cited to and discussed section 451.001(3) and also provided evidence to support an argument that he engaged in protected conduct under section 451.001(3). Under a liberal reading of Salas’s response along with his summary judgment evidence, Salas presented the argument that his report of his on-the-job injury constituted protected activity under section 451.001(3). See Richmond v. L.D. Brinkman & Co. (Tex.) Inc., 36 S.W.3d 903, 905 n.2 (Tex. App.—Dallas 2001, pet. denied) (liberally construing response to summary motion to include preemption argument although nonmovants did not specifically state the argument).

Third, Fluor acknowledges in its appellate brief (as well as in its response to Salas’s post-summary judgment hearing brief) that Salas “raised this argument orally at the hearing on summary judgment.” Although we do not have a transcript of the oral summary judgment hearing, Fluor admits that the issue of whether Salas’s report of his on-the-job injury constitutes protected conduct under section 451.001(3) was argued at the hearing. Additionally, the trial court’s summary judgment order states that the court considered the summary judgment motion, the summary judgment response, arguments of counsel, and the pleadings on file in granting summary judgment in favor of Fluor.

We conclude that Salas did not “fail[ ] to preserve error on his argument that his report of his work-related injury constituted protected activity under § 451.001(3)”.

b. Salas engaged in protected conduct

We address Salas’s contention that there is evidence he engaged in protected conduct under section 451.001(3) because he “reported his on-the-job injury to his employer/supervisor.”

We agree with Salas that section 451.001(3) does not require an employee to actually file a workers’ compensation claim. As contrasted with section 451.001(1), which requires an employee to file a workers’ compensation claim to constitute protected conduct, section 451.001(3) only requires that an employee institutes or causes to be instituted a proceeding under the Texas Workers’ Compensation Act in order to engage in protected conduct. See Tex. Labor Code Ann. § 451.001(1), (3). Several courts of appeals also agree and have held that section 451.001(3) does not require an employee to actually file a workers’ compensation claim, and that an employee institutes or causes to be instituted a proceeding under the Texas Workers’ Compensation Act when he informs his employer of his on-the-job injury.1

There is nothing in the language of section 451.001(3) that requires an employee to file a workers’ compensation claim. See Tex. Lab. Code Ann. § 451.001(3). If protected conduct under section 451.001(3) required the actual filing of a workers’ compensation claim, the Legislature would and could have easily stated so, just as it did in section 451.001(1). If the filing of a claim were required under both section 451.001(1) and (3), it would make no sense to have both subsections. The Fort Worth Court of Appeals in Texas Steel Company recognized this years ago, stating:

If the Legislature’s intention was that the cause of action it created by Art. 8307c, V.A.T.S., should in all instances only arise in cases where the employee was fired after he had filed the claim for compensation provided for in Art. 8307, ... then the law would be completely useless and would not accomplish the purpose for which it was enacted. This is true because all the employer would have to do in order to avoid the consequences of the statute would be to fire the injured workman before he filed the claim.

* * *

Under the appellant’s contention advanced in this case there could be no ‘proceeding under the Workmen’s Compensation Act’ unless the employee had prior thereto filed a claim for compensation with the Industrial Accident Board. Appellant’s argument appears to be that the filing of the claim for compensation is the start of the ‘proceeding’ that is referred to in Art. 8307c.

If that contention is correct then the Legislature’s act in inserting into the statute the words ‘instituted, or caused to be instituted ... any proceeding under the Texas Workmen’s Compensation Act’ would have been nugatory and superfluous because that situation would have been covered, even if those words had been left out of the statute completely, by the part of the statute that creates a cause of action against an employer for firing an employee because he filed a claim [in now subsection 451.001(1) ].

533 S.W.2d at 115-16 (ellipsis in original).

We conclude that an employee need not file a workers’ compensation claim to engage in protected conduct under section 451.001(3); an employee institutes or causes to be instituted a relevant proceeding under section 451.001(3) when he informs his employer of his on-the-job injury. See Guerra, 963 S.W.2d at 950; Stephens, 924 S.W.2d at 771-72; Heinsohn, 939 S.W.2d at 795; Palmer, 852 S.W.2d at 60-61; Worsham Steel Co., 831 S.W.2d at 84; Hunt, 711 S.W.2d at 80; Tex. Steel Co., 533 S.W.2d at 114-16.2 Here, Salas informed his employer through his immediate supervisor, Alanis, that he sustained an injury when he twisted his knee and fell against a pipe support and was taken to the doctor by Fish, a safety department supervisor.

Therefore, there is sufficient evidence that Salas instituted or caused to be instituted a proceeding under the Workers’ Compensation Act when he informed his supervisor of his injury and thus engaged in protected conduct under section 451.001(3). Accordingly, we sustain Salas’s first issue with regard to his argument that the trial court improperly granted summary judgment because he “engaged in protected activity” under section 451.001(3).

C. Causal Link

Next, we address Salas’s second issue, in which he contends that he presented evidence of a causal link between his protected conduct under section 451.001(3) and his termination. In addressing whether a fact issue exists, we examine several factors that may establish the existence of a causal link.

1. Decision maker’s knowledge

We begin by determining whether there is evidence that a decision maker at Fluor had knowledge of Salas’s protected conduct. Salas contends that several Fluor employees, including superintendent Aycock, testified that Salas’s supervisor Alanis was the decision maker responsible for placing Salas on the reduction of force list. Salas argues the evidence shows that Alanis, Aycock, and “a litany of other Fluor employees” knew he suffered an on-the-job injury but that Fluor tried to hide and obfuscate the identity of the decision maker responsible for his termination. Salas also argues that Alanis and Aycock both knew of his injury but claimed they did not make the decision to place him on the reduction of force list and terminate him.

The record before us contains conflicting evidence as to who the decision maker was placing Salas on the reduction of force list. Alanis averred in an affidavit that he knew of Salas’s work-related injury but did not place Salas on the reduction of force list. Instead, Alanis swore:

2. My name is Oliver Alanis. I worked for Fluor ... at the CP Chem site .... In January 2017, I held the position of foreman, and I was the direct supervisor of Rogelio Salas. On or about January 9, 2017, I learned that Mr. Salas suffered an on-the-job injury. As part of my job duties, I filled out an incident report statement for this injury and took Mr. Salas to the doctor for medical treatment.

3. Several weeks later, I was told via paperwork, that Fluor was ending Mr. Salas’ employment. I did not select or cho[o]se Mr. Salas to be part of any reduction in force or termination, and I was not a part of and did not make the decision to end Mr. Salas’ employment or subject him to any so-called reduction in force. I am not aware who selected Mr. Salas for termination or a reduction in force. I am also not aware of the reasons why Mr. Salas, as opposed to another pipefitter, was selected for termination. I only know that someone above me at Fluor decided to end Mr. Salas’s employment.

4. In addition, Richard Aycock never told me in January 2017 to select one of the pipefitters in my crew for a reduction in force. Instead, I was only told via paperwork that Fl[uo]r was ending Mr. Salas’s employment. I also did not sign or fill out any reduction of force paperwork for Mr. Salas.

5. I do not know of any reason why Mr. Salas would be terminated as opposed to other pipefitters in my crew. Mr. Salas was a good and hard worker, and if I had been asked to select a pipefitter from my crew in January 2017 for a reduction in force, I would not have selected Mr. Salas.

On the other hand, Aycock testified that it was Alanis who decided Salas should be included on the reduction of force list and that it was Alanis’s responsibility as crew supervisor to make that decision. Aycock also testified about his limited role with regard to placing Salas on the reduction of force list and Salas’s subsequent discharge. According to Aycock, after Alanis decided “on his own” who is subject to a reduction of force, Aycock reviewed the reduction of force paperwork and signed off on the form.3

Additionally, Fluor’s corporate representative and senior manager at human resources, Deborah Bataillon, testified during her deposition that Alanis, Aycock, and Stockton had the authority to terminate Salas and they decided Salas was subject to a reduction of force. Despite Bataillon’s testimony that Stockton was a decision maker, Stockton testified to the contrary. He stated in his deposition that he was not “part of the decision about who should be laid off”, he had no “involvement in the decision to lay off” Salas, and he does not know who actually decided “to make Mr. Salas subject to a layoff.”

Salas also testified at length during his deposition. With regard to who the decision maker was, Salas testified that Alanis told him on the day he was terminated that the decision to terminate him “came from up above.” According to Salas, Alanis told him that Aycock “was the man that ultimately chose to put [Salas] on the termination list.”

Relying on Aycock’s deposition testimony, Fluor asserted below that Alanis was the decision maker who put Salas on the reduction of force list. Fluor also asserted that Aycock was the decision maker approving Salas’s selection for a reduction of force. At oral argument, Fluor affirmed that, during his deposition testimony, Aycock did not disclaim that he was a decision maker and that he decided to terminate Salas based on Alanis’s recommendation.

We conclude that the evidence in the record at least raises a fact issue that Alanis, Aycock, or both were decision makers in selecting Salas for a reduction of force; Fluor even acknowledges in its brief that there is “a question of fact regarding who made the decision to select Salas for layoff.” Therefore, we next consider whether Alanis and Aycock, identified as decision makers, had knowledge of Salas’s injury.

Alanis averred in his affidavit (and Fluor does not dispute) that Alanis learned of Salas’s injury on January 9, 2017, took Salas to get medical treatment, and even filled out an incident report describing the injury. The record contains the Supervisor’s Initial Incident Report, in which Alanis described when, where, and how Salas’s injury occurred on January 9, 2017.

However, although Fluor does not disclaim that Aycock was a decision maker, Fluor disputes Aycock had any knowledge of Salas’s injury based on Aycock’s deposition testimony. Fluor argues that Aycock testified he did not know of Salas’s injury until he was contacted about taking his deposition almost a year after the decision to terminate Salas was made. Fluor also argues that Salas incorrectly asserts that his summary judgment exhibit 15 provides evidence of Aycock’s knowledge.

Salas cites to exhibit 15 which contains a January 9, 2017 email sent by Fluor employee William Walley to numerous Fluor employees, including Aycock, attaching the January 9, 2017 Incident Report regarding Salas’s injury. It also contains emails from January 10, January 13, January 16, and January 17, 2017 from Walley to the same Fluor recipients attaching Fluor’s Daily First-Aid Records regarding Salas’s injury.

Fluor claims that “emails Aycock was copied on” were not evidence that Aycock knew Salas suffered an on-the-job injury because the January 9, 2017 Incident Report sent to Aycock via email (1) was not an injury report, (2) was “prepared for ‘information only,’ ” (3) identified the “Specific Injury Type” in the report as “None”, and (4) stated Salas was evaluated and “determined to have no injuries.” However, the title of the report is not determinative. The Incident Report specifically states that Salas’s left knee was hurt, that he twisted his left knee, and that he fell against a pipe support.

Even without a clear and unequivocal statement in the Incident Report that Salas suffered an injury, the documents provide sufficient information that Salas suffered an on-the-job injury. Beginning with the January 9, 2017 Daily First-Aid Record sent to Aycock, it states under the “Nature and Cause of Injury” rubric: “Slip/Trip, Left knee pain”, and under the “Treatment Administered/Disposition” rubric: “Very minor”. The January 12, 2017 Daily First-Aid Record provides under the “Nature and Cause of Injury” rubric: “Slip/Trip, Left knee pain”, and under the “Treatment Administered/Disposition” rubric: “Ice 20min x 3 per day, Iprin 400mg”4. The January 13, 2017 Daily First-Aid Record provides under the “Nature and Cause of Injury” rubric: “Slip/Trip, Left knee pain”, and under the “Treatment Administered/Disposition” rubric: “Iprin 400mg, Ice Therapy x 20 minutes”. The January 16, 2017 Daily First-Aid Record states under the “Nature and Cause of Injury” rubric: “Slip/Trip, Left knee pain”, and under the “Treatment Administered/Disposition” rubric: “Eval at Occ Health”.

Fluor does not dispute that Aycock received the Incident Report and the four Daily First-Aid Records via email. Because these documents show that Salas suffered an injury and received medical treatment for it, we reject Fluor’s contention that Salas failed to produce evidence of Aycock’s knowledge of Salas’s injury. Instead, we conclude the documents Aycock received via email constitute sufficient evidence to raise a fact issue regarding whether Aycock had knowledge of Salas’s injury at the time Salas was placed on the reduction of force list and terminated.

We conclude the record contains sufficient evidence to raise a fact issue as to whether Alanis and/or Aycock were decision makers and had knowledge of Salas’s on-the-job injury at the time Salas was placed on the reduction of force list and terminated.

2. Timing

Salas also contends that the timing of his termination is evidence of a causal link between his protected conduct and Fluor’s adverse employment action.

Salas informed Alanis of his injury shortly after it happened the morning of January 9, 2017. Aycock received information regarding Salas’s injury on January 9, 10, 13, 16 and 17. Salas was placed on the reduction of force list on January 20, 2017, and terminated three days later. The lapse of time between Salas informing Fluor that he suffered an injury and Fluor’s adverse employment action is merely 11 days. This is a short time. “Close timing between an employee’s protected activity and the adverse action can provide the causal connection required for a prima facie case.” Johnson, 203 S.W.3d at 11; see also Cardenas, 527 S.W.3d at 399.

3. Company policy and difference in treatment

Salas asserts that Fluor violated its company policy because he was placed on the reduction of force list without consideration of the six factors Fluor required the decision maker in charge of selecting employees for reduction of force to evaluate in making the selection. In support of his assertion, Salas points to Bataillon’s deposition testimony stating that Alanis (as Salas’s supervisor) selected Salas for a reduction of force and, in making his decision, was required to evaluate company-prescribed factors before selecting Salas. Salas also points to Alanis’s affidavit in which he averred that he “did not select or cho[o]se Mr. Salas to be part of any reduction in force or termination, and I was not a part of and did not make the decision to end Mr. Salas’ employment or subject him to any so-called reduction in force.” Salas asserts that the evidence shows Fluor violated its policy because Alanis “never selected Salas for termination, much less reviewed the factors for a reduction in force.”

In the trial court, Fluor claimed that Aycock instructed Alanis as the crew supervisor to select an employee for reduction of force using six specific factors. Aycock testified that Alanis was the supervisor who made the decision to place Salas on the reduction of force list. He testified that supervisors are required to use “several factors” in deciding whom to select for a reduction of force. Aycock testified he does not “evaluate any of the factors or the basis for [a supervisor] reaching that decision” but trusts his supervisors, including Alanis, to make the decision to select an employee for a reduction of force. Bataillon also testified that Alanis selected Salas for a reduction of force and, in making his decision, Alanis was required to evaluate six factors before selecting Salas.

After claiming that Alanis was the decision maker who selected Salas for a reduction of force and who was required and expected to consider six factors in making his decision, Fluor cannot now claim that Alanis’s affidavit is not competent evidence simply because Alanis (1) controverted Aycock’s and Bataillon’s testimony and (2) averred that he never selected or was part of the decision to select Salas for a reduction of force. Fluor cannot claim that Alanis was the decision maker and considered required factors in reaching his decision and simultaneously claim Alanis was not the decision maker who could not “competently testify as to whether or not the six factors were reviewed or considered when Salas was selected” and thus whether Fluor adhered to its policies.

We also note that Salas’s Employee Separation Form does not contain all required signatures for approval. The form provides in capitalized, bold letters that approval and signatures are required from “Project Management” and “Human Resources”. However, only Stockton signed the form in the rubric provided for “Human Resources”; the rubric for “Project Management” states “N/A”.

Salas also argues that Fluor treated him “different[ly] from other employees because the proper chain of command at Fluor did not sign and review the ‘reduction of force’ form for Salas.” Salas argues that “Fluor required a human resources representative, the site manager, and the superintendent to sign and review the reduction of force forms.” According to Salas, “every other reduction of force form in the month of January — the entirety of the scope of the forms produced in this lawsuit — included signatures from the three supervisors in the chain of command” while Salas’s form was only signed by a superintendent.

Eight reduction of force forms listed over 30 employees for the month of January 2017 and Salas correctly states that every other form (besides his) was signed by a Human Resources Representative, Superintendent/Designee, and Site Manager/Designee. Nonetheless, Fluor argues that the lack of signatures on Salas’s form is not evidence he was treated differently because Bataillon “simply confirmed” that the reduction of force form “selecting Salas for layoff was not signed by a human resources representative or site manager”, but she did not “attest that any F[luor] policy or procedure required all three signatures.” However, Bataillon did more than “simply confirm” the lack of two other signatures; she confirmed that “Salas’ [form] was different than the other employees who are laid off.”

The reduction of force list form specifically states: “Human Resources (HR) must review this document prior to final approvals. List must be received by HR no later than 12:30 noon the day before the scheduled ROF. Failure to do so may delay processing the ROF. Deviations from this format or changes in dates, times, or names must also be reviewed by HR and Site Manager/Designee. Factors considered in layoffs may include, but are not limited to: expertise, project need/remaining scope of work, performance, attendance, discipline, and training.” This language provides some evidence that approval of a reduction of force selection is required by signatures on every form. Salas’s form is different than the other reduction of force forms. It is the only form lacking all three signatures; it is only signed by Aycock and Bennett in the superintendent space.

Fluor also contends that Salas cannot show “he was treated differently than all other employees terminated in the month of January whose Reduction in Force forms contained three signatures” because he failed to present evidence that the other employees were similarly situated. Fluor contends that “[g]iven that these employees were on a different crew, had a different supervisor, held different positions, and had different physical capabilities, Salas failed to sufficiently demonstrate that he was similarly situated to these employees.” However, this argument is unpersuasive. First, there were several employees who actually held the same position as Salas. Second, the number of signatures on the reduction of force forms is not dependent on or specific to an employee’s position, capabilities, crew, or supervisor. There is nothing to suggest that employees working in different positions, on different crews, or under different supervisors would receive something other than all three signatures on their reduction of force forms. Additionally, based on the form’s language, each employee placed on the reduction of force list for layoff is selected using the same factors listed on the form. Therefore, employees are selected based on the same criteria and are comparable for purposes of a reduction of force.

We conclude there is some evidence in the record showing that Fluor violated its company policies and treated Salas differently than other employees who were placed on the reduction of force list and terminated.

4. Negative attitude

Salas does not assert that anyone at Fluor expressed a negative attitude toward him after he reported his injury, nor does the record contain any evidence of a negative attitude by any Fluor employee.

5. False reason for termination

Lastly, Salas contends there is substantial evidence that Fluor’s proffered reason for his termination was false. Salas contends that, although Fluor identified Alanis, Aycock, and Stockton (via Bataillon’s deposition testimony) “as responsible for the ‘reduction in force’ ”, a “careful review of the process” shows that “Alanis had the sole discretion and authority to terminate” Salas. In that regard, Salas points out that (1) Stockton testified he was not part of the decision to select employees for a reduction of force; (2) Aycock testified that Alanis selected Salas for a reduction of force and Aycock only signed off on the form without an independent review; and (3) Bataillon testified (a) she does not know why Alanis selected Salas for a reduction of force and (b) only Alanis knows why he selected Salas. According to Salas, Alanis’s affidavit testimony (stating he neither selected nor had any part in the decision to select Salas for a reduction of force) constitutes evidence that Fluor’s assertion Salas was terminated because Alanis selected him for a reduction of force is false.

We cannot agree with Fluor that the evidence is undisputed and “clearly established that Salas was terminated as part of ongoing” reductions of force. Instead, we agree with Salas that there is evidence in the record supporting Salas’s contention that the reason Fluor provided for his termination is false.

First, considering Fluor asserted that Alanis chose Salas for a reduction of force after Aycock instructed Alanis to select employees and provide names of the selected employees, Fluor cannot now claim Alanis’s affidavit constitutes no evidence because Alanis averred he was not the decision maker. Fluor cannot claim Alanis was the decision maker who selected Salas for a reduction of force per Aycock’s instruction to select an employee from his crew while also claiming Alanis’s affidavit cannot refute Salas was terminated because of a reduction of force because Alanis (according to his affidavit) did not select Salas and has no knowledge why Salas was terminated.

In his affidavit, Alanis stated (1) he was told “via paperwork” that Fluor was terminating Salas and he “did not sign or fill out any reduction of force paperwork for” Salas; (2) he did not select and was not part of the decision to select Salas for a reduction of force or termination; (3) he did not know who chose Salas and “only know[s] that someone above [him] at Fluor decided to end Mr. Salas’ employment”; and (4) Aycock never told Alanis in January 2017 to select a pipefitter on his crew for a reduction of force. Thus, Alanis’s affidavit controverts Fluor’s contention that (1) Aycock instructed Alanis to select a pipefitter on his crew for reduction of force and provide him with the name of the selected employee; (2) Alanis selected Salas for a reduction of force and gave Aycock Salas’s name; and (3) Aycock “reviewed and approved Salas’s selection for layoff as part of a reduction in force”.

Second, even if Salas admitted during his deposition testimony that there were “constant” reductions of force (as Fluor contends), this alleged “admission” is not “undisputed evidence” that Salas was terminated because of a reduction of force. Third, contrary to Fluor’s assertion, evidence that other pipefitters were terminated due to a reduction of force does not translate to “undisputed evidence” that Salas was terminated for that same reason. Also, Fluor has not pointed to evidence that any of these employees were injured and not working at the time they were approved for a reduction of force.

Fourth, Fluor’s contention that Salas’s signature on his Employee Separation Form is “undisputed evidence” that he was terminated because of a reduction of force is unpersuasive. Salas testified that before signing the Employee Separation Form, he told Stockton he “didn’t understand why [he] was being laid off if [he] was still getting medical treatment or ... still had to go to the doctor.” Salas also testified he asked Stockton where the employee comment section was on the separation form, but Stockton told him the form does not have a comment section:

Q. Okay. And what do you recall Mr. Stockton saying in terms of any conversation between you and he? You said you asked him about employee comments?

A. Yes. I had told him that this separation form normally comes with any employee comments on the bottom before you sign the name or under the name, and he said these forms didn’t come with that. I said, “Every other form that I’ve seen, most of the other forms come with any comments done by the person signing to contradict or contest what’s going on.”

Q. Okay. And what, if any, response did he make to that statement?

A. Like he said, this form doesn’t have that section.

Salas’s testimony provides some evidence that he did not “acknowledge” or agree he was being terminated as part of a reduction of force.

Fifth, Fluor claims “Salas’s prior written statements made under oath to the Texas Workforce Commission when he was applying for unemployment benefits in which he stated the reason for the end of his employment was for a layoff” is undisputed evidence he was terminated because of a reduction of force. However, Fluor’s citation to the record does not contain the alleged written statements by Salas, and we have not located a document containing these alleged statements in the record.

After reviewing all relevant factors, we conclude there is summary-judgment evidence that raises an issue of material fact with regard to whether there is a causal link between Salas’s protected conduct under section 451.001(3) and his termination. The trial court erred in concluding to the contrary, and therefore we sustain Salas’s second issue.

D. Legitimate Reason for Termination and Pretext

In his third issue, Salas argues that he has “directly disputed [Fluor]’s claimed legitimate reason for termination.” He argues that Alanis’s affidavit refutes Fluor’s assertion that Salas was terminated because Alanis selected him for a reduction of force. Fluor counters that it “conclusively established that Salas was terminated for a legitimate, non-retaliatory reason wholly unrelated to Salas’s reporting of his on-the-job injury” and that Alanis’s affidavit creates no “triable issue of fact”.

Based on the record before us, we agree that there is evidence Fluor terminated Salas for a legitimate, non-discriminatory reason — namely a reduction of force. However, Fluor did not conclusively prove its stated legitimate reason because Salas presented evidence that the stated reason is false or a pretext.

Fluor heavily relied on Aycock’s deposition in which he testified that (1) he instructed Alanis that reductions needed to be made to the pipefitter workforce according to senior management; (2) Alanis selected Salas for layoff based on specific factors mandated by Fluor; (3) Alanis placed Salas on the reduction of force list selected for layoff on January 20, 2017; and (4) Aycock reviewed and approved Alanis’s decision to include Salas on the reduction of force list. But Salas presented evidence refuting Aycock’s testimony. Salas presented Alanis’s affidavit which, contrary to Fluor’s assertion, raises a fact issue regarding whether Fluor’s stated reason for Salas’s termination is false.

Alanis’s affidavit completely contradicts Aycock’s testimony5 that Alanis selected Salas for a reduction of force and layoff because Alanis testified (1) Aycock never told him in January 2017 to select a pipefitter on his crew for a reduction of force; (2) he did not select and was not part of the decision to select Salas for a reduction of force or termination; (3) he “did not sign or fill out any reduction of force paperwork for” Salas; (4) he did not know who chose Salas and “only know[s] that someone above [him] at Fluor decided to end Mr. Salas’ employment”; and (5) he was told “via paperwork” that Fluor was terminating Salas. Moreover, Alanis averred that Salas was a “good and hard worker, and if [Alanis] had been asked to select a pipefitter from [his] crew in January 2017 for a reduction in force, [he] would not have selected Mr. Salas.”

We also note that the lapse of time between Salas informing Fluor that he suffered an injury and Fluor’s adverse employment action is merely 11 days. There is evidence that Aycock learned of Salas’s work-related injury shortly after it happened and thus knew of the injury when he approved Salas’s termination. See Cardenas, 527 S.W.3d at 399 (a small time lapse between employee’s protected conduct and employer’s adverse employment action is circumstantial evidence of a retaliatory motive); Parker, 365 S.W.3d at 67 (same).

We conclude there is some evidence that Fluor’s stated reason for Salas’s termination is false or a pretext. Therefore, the trial court erred in determining that Fluor conclusively established it terminated Salas for a legitimate, non-discriminatory reason, and that Salas did not produce controverting evidence. See Cont’l Coffee Prods. Co., 937 S.W.2d at 451-52. Accordingly, we sustain Salas’s third issue.

E. Work Performance

Salas argues in his fourth issue that summary judgment on his retaliatory discharge claim was also erroneously granted because Fluor’s authorities do not support its contention that it properly terminated Salas based on his inability to perform his work. Salas also argues that Fluor “never alleged that it fired Mr. Salas because he was unable to perform his job” and “cannot now use this basis as a justification for its retaliation.” Fluor responds that it was entitled to summary judgment as a matter of law because “Texas courts have consistently held in the context of workers’ compensation retaliation cases that ‘an employer may terminate an employee who sustains a job related injury if it ultimately appears that, due to the nature of the injury, the employee can no longer perform the essential functions of his position.’ ”

The cases Fluor relied on in the trial court and now on appeal do not support its argument that Salas’s termination was proper because he could not perform his work when Fluor did not terminate him for that reason. In each of the cases Fluor cites, the employer terminated its employee for the stated reason that the employee could not perform his job. See Phillips v. SACHEM, Inc., No. 03-13-00346-CV, 2014 WL 7464035, at *5 (Tex. App.—Austin Dec. 31, 2014, no pet.) (mem. op.) (“In this case, there is no dispute that SACHEM’s proffered reason for terminating Phillips was that he was unable to work at the time he was terminated.”); Love v. Geo Grp., Inc., No. 04-12-00231-CV, 2013 WL 1223870, at *1, *5 (Tex. App.—San Antonio Mar. 27, 2013, no pet.) (mem. op.) (employer’s human resources representative stated, “My decision [to terminate Mr. Love] was based on the information I received from his physician and Mr. Love’s inability to meet minimum job responsibilities and physical requirements of being a detention officer”) (brackets in original); Clevinger v. Fluor Daniel Servs. Corp., No. 10-11-00288-CV, 2012 WL 1366575, at *3 (Tex. App.—Waco Apr. 18, 2012, no pet.) (mem. op.) (Clevinger was terminated because he could not perform his job); Tri-Cty. Elec. Co-op., Inc. v. Tidwell, 859 S.W.2d 109, 111-12 (Tex. App.—Fort Worth 1993, writ denied) (“evidence shows that Tidwell was kept on the payroll for approximately two years before he was terminated, and then only when he was not able to obtain a full medical release[;] Tidwell’s termination was due to his inability to obtain a full medical release and return to work”).

Here, Fluor never stated nor in any way implied that it terminated Salas because he was unable to perform his job. Fluor was not entitled to summary judgment on the basis that it properly terminated Salas because he was unable to perform his work, and the trial court erroneously granted summary judgment on that basis. Accordingly, we sustain Salas’s fourth issue.

III. Punitive Damages

Salas contends in his fifth and final issue that he “provided sufficient evidence of exemplary damages related to his termination and discrimination.” Salas claims he presented evidence that Fluor “fraudulently alleged it terminated him based on a reduction of force” and did so with the intent to harm him.

Before an employee may recover punitive damages from an employer for a violation of the Anti-Retaliation Law, he must prove actual malice by clear and convincing evidence. See Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 628-29 (Tex. 2004); Cont’l Coffee Prods. Co., 937 S.W.2d at 452-54. For purposes of chapter 451, actual malice means “ill-will, spite, evil motive, or purposeful injury.” See Sw. Bell Tel. Co., 164 S.W.3d at 628; Cont’l Coffee Prods. Co., 937 S.W.2d at 452, 454. “By requiring evidence of ill-will, spite, or a specific intent to cause injury to the employee, courts will ensure that only egregious violations of the statute will be subject to punitive awards.” Cont’l Coffee Prods. Co., 937 S.W.2d at 454.

Salas has not directed us to any evidence that raises a fact issue on whether Fluor acted with actual malice in this case, and our review of the record has not revealed any such evidence. An employer’s violation of section 451.001 alone does not support an award of punitive damages. Id. at 453; Hertz Equip. Rental Corp. v. Barousse, 365 S.W.3d 46, 60 (Tex. App.—Houston [1st Dist.] 2011, pet. denied). Because there is no evidence of actual malice, we conclude the trial court correctly granted summary judgment on Salas’s punitive damages claim. Accordingly, we overrule Salas’s fifth issue.

CONCLUSION

We affirm the trial court’s summary judgment with respect to Salas’s retaliatory discharge claim under Texas Labor Code section 451.001(1) and Salas’s punitive damages claim. We reverse the trial court’s summary judgment regarding Salas’s retaliatory discharge claim under Texas Labor Code section 451.001(3) and remand that claim to the trial court for proceedings consistent with this opinion.

Footnotes

1

See Hous. Auth. of City of El Paso v. Guerra, 963 S.W.2d 946, 950 (Tex. App.—El Paso 1998, pet. denied) (“It is not necessary for a worker to have actually filed a workers’ compensation claim to invoke the statutory protection; the worker need only take steps toward instituting a compensation proceeding to be protected. ‘Informing one’s employer of an on-the-job injury sufficiently “institutes” a compensation proceeding within the meaning of the law.’ ”); Stephens v. Delhi Gas Pipeline Corp., 924 S.W.2d 765, 771-72 (Tex. App.—Texarkana 1996, writ denied) (same); Heinsohn v. Trans-Con Adjustment Bureau, 939 S.W.2d 793, 795 (Tex. App.—Fort Worth 1997, writ denied) (“Moreover, when an employer knows an employee is injured, the employer may not frustrate the purposes of the workers’ compensation law by discharging the employee before the claim can be filed. Merely by the act of notifying the employer of the injury, an injured employee takes steps toward ‘instituting a compensation proceeding’ within the meaning of the statute.”) (internal citations omitted); Palmer v. Miller Brewing Co., 852 S.W.2d 57, 60-61 (Tex. App.—Fort Worth 1993, writ denied) (Section 451.001 “can be violated even when the employee was fired before filing a claim for compensation so long as the evidence shows that the employee took steps towards instituting a compensation proceeding. The act of informing the employer of the injury sufficiently institutes a compensation proceeding ....”) (internal citations omitted); Worsham Steel Co. v. Arias, 831 S.W.2d 81, 84 (Tex. App.—El Paso 1992, no writ) (rejecting argument that “no cause of action for wrongful discharge exists unless a claim for workers’ compensation has been filed at the time of discharge” but finding “all that is required to prosecute such a claim is evidence that shows an employee took steps towards instituting a proceeding” under section 451.001, and informing his employer of the work-related injury constitutes “an affirmative step toward instituting a proceeding under” section 451.001); Hunt v. Van Der Horst Corp., 711 S.W.2d 77, 80 (Tex. App.—Dallas 1986, no writ) (concluding that an employee who informed his supervisor that he had suffered an injury on the job “instituted a proceeding” under the Workers’ Compensation Act and, “[t]o hold otherwise would be to reward employers who are particularly adept at anticipating and quick in firing potential workers’ compensation claimants over those who are slower to retaliate”); Tex. Steel Co. v. Douglas, 533 S.W.2d 111, 114-16 (Tex. Civ. App.—Fort Worth 1976, writ ref’d n.r.e.) (concluding that employee did not have to file a workers’ compensation claim because the employee’s case was pleaded “on the theory that the employer fired him because he had instituted a ‘proceeding under the Workmen’s Compensation Law’ ”, and evidence that employee’s superintendent knew of employee’s injury was sufficient to raise a fact issue on whether employee was fired because he instituted a proceeding under the Workers’ Compensation Act).

We note that several of the courts of appeals cases were decided under former Texas Revised Civil Statutes Annotated article 8307c, which was repealed and codified in 1993 without any substantive changes in Texas Labor Code sections 451.001-.003. See supra n.1; see also Tex. Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52, 57 (Tex. 1998); Cont’l Coffee Prods. Co., 937 S.W.2d at 445; Harris Cty. v. Louvier, 956 S.W.2d 106, 107 n.1 (Tex. App.—Houston [14th Dist.] 1997, no pet). Therefore, these cases are applicable to the issue before us regarding section 451.001(3).

2

Cf. In re Poly-Am., L.P., 262 S.W.3d at 350 (“The Legislature’s purpose in enacting section 451.001 was to protect persons entitled to benefits under the Act and to prevent them from being discharged for seeking to collect those benefits. See Tex. Steel Co., 533 S.W.2d 111, 115 (Tex. Civ. App.—Fort Worth 1976, writ r ref’d n.r.e.). Since recovery of benefits under the Workers’ Compensation Act is the exclusive remedy available to injured employees of subscribing employers, see Tex. Lab. Code § 408.001(a), the availability of remedies for retaliatory discharge protects employees’ exercise of their statutory rights to compensation under the Act. See Padilla v. Carrier Air Conditioning, 67 F.Supp.2d 650, 664 (E.D. Tex. 1999); Mid-South Bottling Co. v. Cigainero, 799 S.W.2d 385, 389 (Tex. App.—Texarkana 1990, writ denied). In accordance with these principles, the anti-retaliation provisions of the Act must protect employees even before they have actually filed a claim, because otherwise ‘the law would be completely useless and would not accomplish the purpose for which it was enacted .... [A]ll the employer would have to do in order to avoid the consequences of the statute would be to fire the injured workman before he filed the claim.’ Tex. Steel Co., 533 S.W.2d at 115.”).

3

Here, the reduction of force list was signed only by Aycock and his superior Chris Bennett; it was not signed by Alanis or any other Fluor employees.

4

Ibuprofen is the generic name for Iprin. See https://www.drugs.com/cons/i-prin.html.

5

It also contradicts Bataillon’s testimony because she claimed that Alanis selected Salas for a reduction of force and layoff based on Fluor-mandated factors, and this decision was later approved by Aycock.

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

HAND & WRIST CENTER OF HOUSTON, P.A., Appellant

v.

LOWERY MASONRY, LLC, Appellee

NO. 14-19-00539-CV

|

Opinion filed December 22, 2020

On Appeal from the 189th District Court

Harris County, Texas

Trial Court Cause No. 2017-13251

Panel consists of Justices Christopher, Jewell, and Zimmerer.

MEMORANDUM OPINION

Kevin Jewell Justice

*1 Reversed and Remanded and Memorandum Opinion filed December 22, 2020.

Appellant Hand & Wrist Center of Houston, P.A. (“HWC”) appeals a summary judgment denying it recovery from Lowery Masonry, LLC on a guaranty agreement. For the reasons explained below, we conclude that Lowery failed to establish conclusively its entitlement to summary judgment. We reverse the trial court’s judgment and remand the cause for further proceedings.

Background

Sandro Tovar allegedly sustained an injury while in the course and scope of his employment for Lowery. Tovar sought medical treatment from HWC. Before HWC provided treatment, Lowery’s president signed a “Letter of Guarantee,” which provides in pertinent part:

We believe that our mutual goal should be to provide your employee with the best possible care in an expedited fashion. We participate in the TDI-DWC program as well as many insurance company’s managed care and commercial contracts. However, during emergency, emergent, or urgent circumstances it can be difficult to obtain verification of insurance benefits, current subscriber status, and/or employment in a favorable time frame; this delay can translate to reduced medical outcomes in many situations. By executing this Letter of Guarantee, below, and accepting the financial responsibility for your injured worker, you are helping to enable rapid and efficient medical care rendered by a team of experienced hand trauma specialists, while retaining the flexibility of deciding later whether or not to submit an insurance claim.

Of course, if you utilize a Third Party Administrator (TPA) to administer your medical claims, then we will be happy to forward all claims to the TPA, after care is rendered, and we will honor any contractual discounts we may have agreed to, as stated below. As a reminder, a TPA administers claims for medical expenses, which naturally occur after care is rendered. Because a TPA is not empowered by Texas Law to approve or deny the medical care of an injured worker, we cannot accept the signature of a TPA staffer on the Letter of Guarantee below. Thank you.

Lowery Masonry, LLC (hereafter called “the Company”) desires that Sandro Tovar (hereafter called “the Patient”) receive medical care for injuries sustained on or about 12/17/2015. In that regard, the Company hereby agrees to the following. The Company guarantees that it will pay Hand & Wrist Center of Houston, P.A., SCA Houston Hospital for Specialized Surgery, L.P., and Gulf Anesthesia Associates, PA (hereafter called “the medical care providers”) their usual and customary fees for medical care rendered to the Patient. Payment will be made within 30 days after receiving notice. This Letter of Guarantee may be canceled only with 30 days written notice by either party.

The Medical Providers will not seek additional payment from the Company under this Letter of Guarantee if 1) payment is made by an insurance carrier in accordance with the relevant state or federal worker’s compensation acts statutory fee schedule and time table, or 2) payment is made under terms of a Certified Health Care Network’s contracted fee schedule and time table, 3) payment is made by a Third Party Administrator’s Provider Agreement, if any are in effect, or (4) the Company has workers’ compensation insurance with Texas Mutual Insurance Company.

*2 Payment will be made even if the injury is determined to have occurred while the Patient was not at work, or if the injury is not reported to the insurance carrier (if any), or if a claim is not filed with the insurance carrier, by the Employer, in a timely fashion. Payment will be made even if the patient tests positive for drugs or alcohol at the time of the injury.

... Because the Company agrees to pay these fees if and when there is no insurance coverage, then lack of insurance is not a defense to payment of the fees.... This agreement is an enforceable contract.

(Bolding emphases added, underlining and italics emphasis original).

HWC treated Tovar and sent Lowery a bill for $6,699.86. The record contains no evidence whether any insurance company or other party paid some or all of HWC’s fee. After Lowery allegedly did not pay the bill, HWC filed suit, asserting a single claim for breach of the guaranty.

Lowery filed a traditional motion for summary judgment, contending that the guaranty “specifically excludes recovery in the event that [Lowery] has workers’ compensation insurance with Texas Mutual Insurance Company.” Lowery attached an affidavit from its president, who averred that the company had workers’ compensation insurance at all relevant times with Texas Mutual Insurance Company.

The trial court granted the motion for summary judgment and ordered that HWC take nothing from Lowery. HWC timely appealed.

Standard of Review and Burdens of Proof

We review a grant of summary judgment under a de novo standard of review. See 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 indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. Dias v. Goodman Mfg. Co., L.P., 214 S.W.3d 672, 675-76 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

If the defendant disproves at least one element of the plaintiff’s claim as a matter of law, summary judgment is appropriate. Friendswood Dev. Co. v. McDade & Co., 926 S.W.2d 280, 282 (Tex. 1996); see also Buck v. Blum, 130 S.W.3d 285, 288 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Here, the plaintiff’s claim is on a guaranty agreement, which creates a secondary obligation whereby the guarantor promises to be responsible for the debt of another and may be called upon to perform if the primary obligor fails to perform. Wasserberg v. Flooring Servs. of Tex., LLC, 376 S.W.3d 202, 205-06 (Tex. App.—Houston [14th Dist.] 2012, no pet.). To recover under a guaranty contract, a party must prove: (1) the existence and ownership of the guaranty contract; (2) the terms of the underlying contract by the holder; (3) the occurrence of the conditions upon which liability is based; and (4) the failure or refusal to perform the promise by the guarantor. Id. In its motion for summary judgment, Lowery challenged the third element. Lowery argued that the stated condition of liability had not occurred because Lowery had workers’ compensation insurance with Texas Mutual Insurance Company.

When, as here, a defendant argues that the terms of a contract preclude the plaintiff from recovering, the defendant must prove that its interpretation of the contract is the only reasonable one. See, e.g., Clark v. Cotten Schmidt, L.L.P., 327 S.W.3d 765, 774-75 & n.11 (Tex. App.—Fort Worth 2010, no pet.); see also El Paso Field Servs., L.P. v. MasTec N.A., Inc., 389 S.W.3d 802, 806 (Tex. 2012). The interpretation of a guaranty agreement, like any contract, is a legal question we review de novo. Wasserberg, 376 S.W.3d at 206 (citing Gulf Ins. Co. v. Burns Motors, Inc., 22 S.W.3d 417, 423 (Tex. 2000)). If a traditional summary judgment movant fails to meet its burden, then reversal is warranted regardless of the non-movant’s opposing arguments or whether it responded at all. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); Williams Consol. I, Ltd./BSI Holdings, Inc. v. TIG Ins. Co., 230 S.W.3d 895, 900 (Tex. App.—Houston [14th Dist.] 2007, no pet.).

Contract Interpretation Principles

*3 In determining whether Lowery conclusively proved that HWC may not recover, we must interpret the guaranty’s relevant provisions. We construe a written guaranty as we would any other contract, and our primary concern is to ascertain and give effect to the written expression of the parties’ intent. Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc., 473 S.W.3d 296, 305 (Tex. 2015); Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex. 2011). We afford terms their plain and ordinary meaning unless the contract indicates that the parties intended a different meaning. Dynegy Midstream Servs., Ltd. P’ship. v. Apache Corp., 294 S.W.3d 164, 168 (Tex. 2009). We consider the entire contract, respecting all provisions so that none are rendered meaningless. Plains Expl. & Prod., 473 S.W.3d at 305. We also bear in mind the particular business activity to be served, and when possible and proper to do so, we avoid a construction that is unreasonable, inequitable, and oppressive. Nat’l City Bank v. Ortiz, 401 S.W.3d 867, 878 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (op. on reh’g) (citing Frost Nat’l Bank v. L&F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex. 2005) (per curiam)). If a contract is unambiguous, we enforce it as written without considering parol evidence for the purpose of creating an ambiguity or giving the contract “a meaning different from that which its language imports.” David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008) (per curiam).

Application

HWC argues that the summary judgment is error because the Letter of Guarantee imposes a duty on Lowery to pay HWC’s “usual and customary fees” for the service rendered to Tovar if no one else paid, and that Lowery’s interpretation of the exception is contrary to the agreement’s language. Lowery acknowledges the general guaranty obligation but contends the contract establishes several exceptions, the fourth of which applies and bars recovery.

We begin by noting the agreement’s stated purpose and the general guaranty duty. As clarified in the initial two paragraphs of the agreement, Lowery accepted “financial responsibility” for its injured worker to ensure prompt medical treatment without the potential delay accompanying verification of insurance benefits. As stated in the Letter of Guarantee’s third paragraph, Lowery agreed to “pay Hand & Wrist Center ... their usual and customary fees for medical care rendered to the Patient ... within 30 days after receiving notice.” By promising to pay HWC’s usual and customary fees, Lowery guaranteed that it would pay the fees HWC incurred in treating Tovar’s injury, even if Tovar did not pay. See Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 258 (Tex. App.—Houston [14th Dist.] 2003, pet. denied).

The above terms are not disputed. The present controversy concerns the exceptions to liability emphasized in the agreement’s fourth paragraph:

The Medical Providers will not seek additional payment from the Company under this Letter of Guarantee if 1) payment is made by an insurance carrier in accordance with the relevant state or federal worker’s compensation acts statutory fee schedule and time table, or 2) payment is made under terms of a Certified Health Care Network’s contracted fee schedule and time table, 3) payment is made by a Third Party Administrator’s Provider Agreement, if any are in effect, or (4) the Company has workers’ compensation insurance with Texas Mutual Insurance Company.

The first sentence states that HWC will not seek “additional payment” from Lowery if one of four conditions occur. The first three conditions state that they apply if “payment is made” under the stated circumstances. The fourth condition, however, does not include the same “payment is made” language. It applies when Lowery has “workers’ compensation insurance with Texas Mutual Insurance Company.” Lowery presented summary judgment evidence that it had workers’ compensation insurance with Texas Mutual Insurance Company during all relevant times. According to Lowery, then, the only reasonable interpretation of the fourth condition is that HWC may not seek any payment from Lowery even if Texas Mutual Insurance Company did not pay for the services.

*4 Lowery is correct that the fourth condition omits any requirement that payment be received from Texas Mutual Insurance Company before Lowery’s duty to make an “additional payment” is excepted. However, Lowery’s argument that HWC will not seek any payment from Lowery so long as it has workers’ compensation insurance with Texas Mutual Insurance Company would render meaningless the phrase “additional payment” in the first sentence and creates tension with the agreement’s purpose as set forth in the first paragraph, as well as with the fifth paragraph. HWC is entitled to be paid for its services, and its expectation in that regard is apparent from the agreement as a whole. According to Merriam-Webster, “additional” means more than is usual or expected.1 The inclusion of the phrase “additional payment” in the exception paragraph contemplates that HWC would have received a usual or expected payment from another identified source. Under Lowery’s argument, that paragraph’s meaning would be the same with or without the word “additional.” But we cannot construe the contract to render express terms meaningless surplusage. See J.M. Davidson, 128 S.W.3d at 229; Coker, 650 S.W.2d at 393. Because Lowery’s interpretation of the exception paragraph would require us to excise express terms, its interpretation is unreasonable. See Ace Ins. Co. v. Zurich Am. Ins. Co., 59 S.W.3d 424, 428-29 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (citing Westwind Expl., Inc. v. Homestate Sav. Ass’n, 696 S.W.2d 378, 382 (Tex. 1985)).

Lowery invokes the rule of strictissimi juris, which entitles a guarantor to have his agreement construed strictly and not extended by construction or implication beyond the precise terms of the contract. Wasserberg, 376 S.W.3d at 206; Material P’ships, Inc., 102 S.W.3d at 258. But this rule applies only after the terms of the guaranty have been ascertained. See Wasserberg, 376 S.W.3d at 206 (citing McKnight v. Va. Mirror Co., 463 S.W.2d 428, 430 (Tex. 1971)). In a similar vein, Lowery asks us to resolve any “residual uncertainty” in its favor, because guarantors are to receive a favorable interpretation when uncertainty exists as to a guaranty’s meaning. See Coker, 650 S.W.2d at 394 n.1. Lowery does not benefit from this principle, however, because resolving the conflict in its favor as a matter of law would require us to eliminate words from the agreement, which is not reasonable. See Principal Commercial Acceptance, L.L.C. v. Buchanan Fund V, L.L.C., No. 01-11-00782-CV, 2012 WL 6095236, at *8 (Tex. App.—Houston [1st Dist.] Dec. 6, 2012, pet. denied) (mem. op.) (construing guaranty in guarantor’s favor when its proffered interpretation of contract was reasonable).

Accordingly, we hold that Lowery did not conclusively establish an unambiguous certain or definite legal meaning in its favor. See N. Nat. Gas Co. v. Oneok Bushton Processing, Inc., No. 14-11-00539-CV, 2012 WL 4364652, at *7 (Tex. App.—Houston [14th Dist.] Sept. 25, 2012, no pet.) (mem. op.); Kaye/Bassman Int’l Corp. v. Help Desk Now, Inc., 321 S.W.3d 806, 813 (Tex. App.—Dallas 2010, pet. denied). Therefore, we must reverse the summary judgment.

Conclusion

We sustain HWC’s sole issue on appeal, and we reverse and remand the cause to the trial court for further proceedings.

Footnotes

1

See “Additional,” Merriam-Webster, available at https://www.merriam-webster.com/dictionary/additional.

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

Carlos DAMIAN, Appellant

v.

PASA HOUSING GROUP, LLC and Gurinda Akhtar, Appellees

NO. 14-18-00531-CV

|

Opinion filed August 18, 2020

Attorneys & Firms

P. Alan Sanders, Neal Evan Spielman, Houston, James A. Hemphill, Austin, for Appellees.

Rick Molina, Houston, for Appellant.

Panel consists of Justices Wise, Zimmerer, and Spain.

MEMORANDUM OPINION

Jerry Zimmerer, Justice

*1 Appellant Carlos Damian appeals from the final summary judgment granted in favor of appellees, Pasa Housing Group, LLC and Gurinda Akhtar, on his fraud claims against them. Concluding there is no reversible error, we affirm the trial court’s final judgment.

BACKGROUND

Damian worked at the Pecan Place Apartments as a Pasa Housing employee. Damian alleged that he cut a finger on his right hand while he was working at the Pecan Place Apartments. Damian further alleged that he immediately reported the injury to Linda Orellana, the Pecan Place manager, who told him that the company had no workers’ compensation insurance. Orellana then told Damian that he would have to pay for any medical treatment his finger required. According to Damian, Orellana’s statement informing him there was no insurance, caused him “great anxiety, mental anguish, and emotional distress” because he could not work and had no insurance providing financial benefits.

In addition, Damian asserted that Orellana’s representation that Pasa Housing did not have insurance prevented him from receiving prompt medical treatment for his finger. Damian did have “medical insurance through Harris County.” Damian stated that he was not able to see a Harris County doctor until several weeks after he injured his finger. During this period, Damian asserted that he could not get medical treatment or pain killers, and as a result, he “had to endure pain for several weeks.” In addition, Damian worried about having the money to pay his bills, how to see a doctor, and the disruption to his family caused by Orellana’s misrepresentation. According to Damian, he “lost several hours of sleep worrying about these things.” Damian’s finger became infected and ultimately had to be amputated.

Several months after Damian’s finger amputation, Pasa Housing notified Damian that Pasa Housing might have workers’ compensation insurance. Damian did not file a claim however.1 Damian instead sent a notice to Pasa Housing of his “election to retain common law rights to pursue personal injury claims.”2

Damian filed suit against Pasa Housing and Akhtar, the alleged owner of Pasa Housing, asserting causes of action for negligence and fraud. Damian alleged that Akhtar was liable in her individual capacity because she was the alter ego of Pasa Housing and also because Pasa Housing was used to perpetrate a fraud against Damian. Damian sought damages he alleged were caused by his workplace injury as well as by Pasa’s alleged misrepresentation regarding the existence of worker’s compensation insurance. Appellees eventually filed a motion for summary judgment on Damian’s claims against them asserting among other things subscriber-based immunity granted under the Texas Workers Compensation Act. The trial court granted this first motion for summary judgment only on Damian’s negligence-based claims. Damian has not challenged this decision on appeal.

*2 After additional discovery, appellees filed their First Amended No-Evidence Motion for Summary Judgment on Damian’s fraud allegations. Appellees asserted Damian had no evidence that (1) his damages were caused by Pasa Housing’s alleged misrepresentations, (2) he suffered damages, and (3) there was no evidence that would support liability against Akhtar individually.3 Damian filed a response to appellees’ motion. The only evidence Damian attached to his response was his own affidavit. The trial court granted the motion, which disposed of Damian’s remaining claims. This appeal followed soon thereafter.

ANALYSIS

I. Standard of review

We review the trial court’s grant of summary judgment de novo. See, e.g., Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We consider all of the summary judgment evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if a reasonable factfinder could and disregarding contrary evidence unless a reasonable factfinder could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). If an appellant does not challenge every possible ground for summary judgment, we will uphold the summary judgment on the unchallenged ground. Gonzales v. Thorndale Cooperative Gin and Grain Co., 578 S.W.3d 655, 657 (Tex. App.—Houston [14th Dist.] 2019, no pet.).

In a no-evidence motion for summary judgment, the movant represents that there is no evidence of one or more essential elements of the claims for which the nonmovant bears the burden of proof at trial. Tex. R. Civ. P. 166a(i). The burden then shifts to the nonmovant to present evidence raising a genuine issue of material fact as to the elements specified in the motion. Tamez, 206 S.W.3d at 582. Evidence raises a genuine issue of material fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary judgment evidence. See Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam).

II. The trial court did not err when it granted appellees’ no-evidence motion on Damian’s fraud cause of action.

Damian raises a single issue on appeal challenging the trial court’s summary judgment only on his fraud claim against Pasa Housing. In other words, Damian has not challenged on appeal the trial court’s summary judgment on his negligence-based claims or the summary judgment granted on his claims against Akhtar individually.

We turn now to Damian’s argument on appeal that the trial court erred when it granted Pasa Housing’s no-evidence motion for summary judgment on his fraud claim seeking damages for physical pain, suffering, and mental anguish. Even if we assume for purposes of this appeal that Damian could pursue a separate fraud claim, an issue we cannot reach, we conclude that the trial court did not err when it granted Pasa Housing’s motion. We reach this conclusion because Damian offered no summary-judgment evidence that the alleged post-finger-injury fraud caused him any mental anguish, nor any physical pain and suffering, above and beyond that which he experienced as a result of his work-related finger injury.

*3 To recover mental anguish damages, a plaintiff must offer evidence of the nature, duration, and severity of the mental anguish. Service Corp. Intern. v. Guerra, 348 S.W.3d 221, 231 (Tex. 2011). This evidence must demonstrate that the nature, duration, and severity of the mental anguish was sufficient to cause either a substantial disruption in the plaintiff’s daily routine or a high degree of mental pain and distress. Id. The evidence must establish that the plaintiff suffered “more than mere worry, anxiety, vexation, embarrassment, or anger.” Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).

The only evidence Damian filed in response to Pasa Housing’s motion was his own affidavit. In that affidavit Damian stated that “Orellana’s statements to me about no insurance caused me great anxiety, mental anguish, and emotional distress.” Damian also stated that the alleged misrepresentation regarding insurance prevented him from getting prompt medical care and he suffered pain for several weeks before he could see a doctor. Damian also averred that he “felt great anxiety when Ms. Orellana told me that there was no insurance. I worried about money to pay my bills. I also worried about how to see a doctor and how to pay for the medical expenses. I lost several hours of sleep worrying over these things. I also worried about all of the disruption to my family that Ms. Orellana caused by her statements.” This affidavit testimony provides no specific details of Damian’s alleged mental anguish beyond losing several hours of sleep. It does not establish that the alleged misrepresentations caused a substantial disruption of Damian’s daily routine or that he experienced a high level of mental pain and distress rising above “mere worry, anxiety, vexation, embarrassment, or anger.” Parkway, 901 S.W.2d at 444; see Service Corp. Intern., 348 S.W.3d at 232 (stating that “generalized, conclusory descriptions of how an event affected a person are insufficient evidence on which to base mental anguish damages”); Gunn Infiniti, Inc. v. O’Byrne, 996 S.W.2d 854, 861 (Tex. 1999) (“Simply because a plaintiff says he or she suffered mental anguish does not constitute evidence of the nature, duration, and severity of any mental anguish that is sufficient to show a substantial disruption of one’s daily routine.”). We conclude Damian’s summary judgment evidence does not raise a genuine issue of material fact as to whether Damian sustained compensable mental anguish damages as a result of the post-finger-injury misrepresentations.

Pasa Housing also argued that Damian had no evidence that the alleged misrepresentation regarding the existence of workers’ compensation insurance caused Damian physical pain and suffering beyond that which was caused by the original work-related finger injury. Damian did not attach expert medical evidence, or even medical records, to his summary judgment response. Instead, the only evidence Damian submitted was his own affidavit. While Damian’s affidavit would be sufficient in a simple negligence case to establish a fact issue on the immediate pain and suffering he experienced as a result of the initial work-related finger injury and amputation,4 we conclude it is insufficient to establish a fact issue on the existence or extent of separate pain and suffering caused by the alleged misrepresentations underlying his fraud claim against Pasa Housing, Damian’s only remaining claim. See Kelley & Witherspoon, LLP v. Hooper, 401 S.W.3d 841, 850 (Tex. App.—Dallas 2013, no pet.) (stating that “lay testimony was not sufficient to establish a causal connection between the September 2004 auto accident and Charles’s medical problems months and even years afterwards”); Tex. Dept. of Transp. v. Banda, No. 03-09-00724-CV, 2010 WL 5463857, at *5 (Tex. App.—Austin Dec. 22, 2010, pet. denied) (mem. op.) (stating that while plaintiff’s testimony alone provided legally sufficient evidence of pain suffered immediately after accident, expert medical testimony was required to establish duration of injuries and associated pain); Humphrey v. AIG Life Ins. Co., No. 14-08-00973-CV, 2010 WL 2635643, at *5 (Tex. App.—Houston [14th Dist.] July 1, 2010, pet. denied) (mem. op.) (affirming summary judgment when plaintiff failed to include expert testimony in summary judgment response establishing causal link between the lifting injury at issue in lawsuit and plaintiff’s total disability when plaintiff suffered from other medical ailments that could have been a causal factor as well). We conclude Damian’s summary judgment evidence does not raise a genuine issue of material fact as to whether he suffered additional pain and suffering damages beyond those caused by the initial finger injury. We therefore overrule Damian’s single issue on appeal.

CONCLUSION

*4 Having overruled Damian’s issue on appeal, we affirm the trial court’s final judgment.

Footnotes

1

While Damian did not file a claim, Pasa Housing reported Damian’s injury to its worker’s compensation insurance carrier, which ultimately denied his claim. Damian did not challenge this denial with the Texas Department of Insurance, Division of Workers’ Compensation dispute resolution system.

2

Damian has not raised any issue on appeal related to his purported unilateral “election to retain common law rights to pursue personal injury claims.” We therefore cannot address whether this is a right that a worker in Damian’s position possesses.

3

Appellees specifically alleged that Damian had no evidence that (1) Akhtar had ever spoken with Damian or made any representations, false or otherwise, to him; (2) Pasa Housing’s limited liability company status was used as a means of perpetuating a fraud against Damian; (3) such a unity existed between Akhtar and Pasa Housing that Pasa Housing’s separate identity as a limited liability company had ceased; and (4) holding only Pasa Housing liable would result in injustice to Damian.

4

See Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007) (“Thus, non-expert evidence alone is sufficient to support a finding of causation in limited circumstances where both the occurrence and conditions complained of are such that the general experience and common sense of laypersons are sufficient to evaluate the conditions and whether they were probably caused by the occurrence.”).

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

Robin Blaine ANDREWS, Individually and as Personal Representative of the Heirs and Estate of Garland Dale Pepper, Deceased, and Garland Pepper, Jr., Susan Andrews, Kimberly Brown and Carolyn Walker, Appellants

v.

JOHN CRANE, INC., Appellee

NO. 14-18-00573-CV

|

Opinions filed June 18, 2020

On Appeal from the 11th District Court, Harris County, Texas, Trial Court Cause No. 2014-02782-ASB

Attorneys & Firms

Darren Patrick McDowell, Dallas, for Appellants.

Laura Ellis Kugler, Dallas, for Appellee.

Panel consists of Justices Zimmerer

OPINION

Jerry Zimmerer, Justice

*1 Appellants, Robin Blaine Andrews, Individually and as the Personal Representative of the heirs and estate of Garland Dale Pepper, deceased, and Garland Pepper, Jr., Susan Andrews, Kimberly Brown, and Carolyn Walker, appeal from a take-nothing judgment signed after the trial court granted a partial summary judgment on the question of the damages recoverable by appellants, and a subsequent bench trial on stipulated evidence. Concluding that the trial court correctly determined that maritime law applied but it erred when it granted the partial summary judgment on the damages recoverable by appellants, we affirm in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion.

BACKGROUND

The facts in this case are undisputed. This is a products liability action based on decedent Garland Pepper’s contracting pleural mesothelioma after allegedly being exposed to appellee John Crane, Inc.’s (JCI) asbestos-containing sheet gasket material during his service in the United States Navy. While Pepper served in the Navy, he worked on the high seas, in territorial waters, and in dry dock. Pepper estimated that eighty percent of his work was done while the ship was underway, either in territorial waters or on the high seas, and twenty percent was performed in dry dock.

The only sheet-gasket material Pepper recalled using was JCI style 2150. Pepper testified that there was dust created whenever he cut JCI asbestos sheets for steam-valve gaskets. JCI’s corporate representatives concede that JCI’s 2150 gaskets were sold to the Navy during all relevant time periods. Style 2150 contained seventy to eighty percent asbestos and was recommended for both high-pressure and low-pressure steam systems.

This case was transferred to the asbestos multi-district litigation court in Harris County where it was initially set for trial on September 7, 2015. Pepper died in 2014 and the case was amended to substitute appellants and add claims for wrongful death. JCI moved for summary judgment in July 2015 arguing that appellants could not satisfy the causation element of their claims against JCI. While JCI moved for summary judgment under Texas law, it also stated in the motion that “we have not asked that the Court apply any other law than Texas law, however a motion to apply maritime law may be filed.” JCI continued “regardless of whether the Court applies Texas law or maritime law, [appellants] cannot satisfy the causation element of their claims against [JCI].” In addition, JCI included a section in the motion arguing that appellants could not “satisfy the causation element of their claims against [JCI] under maritime law.” Appellants responded to JCI’s motion for summary judgment arguing against summary judgment under Texas law.

Appellants subsequently filed an amended petition on August 3, 2015, just over a month before the case was originally scheduled to go to trial. Eleven days later, JCI formally moved for the first time for the application of maritime law. JCI followed this up a few days later with special exceptions to several of appellants’ causes of action based on its interpretation of the application of maritime law and the Death On the High Seas Act (DOHSA). See 46 U.S.C. § 30301 et. seq. Then, on August 20, 2015, JCI filed its second amended answer adding the defense that maritime law preempted the application of Texas law on appellants’ claims.

*2 The case did not go to trial as originally scheduled. Instead, the trial court signed an order staying the case based on Tex. Civ. Prac. & Rem. Code § 90.055 (permitting a defendant to request a stay of proceedings to allow a claimant to make a claim against an asbestos or silica trust). The case remained stayed until May 24, 2016 when the trial court signed an order setting a new trial date of January 23, 2017. The record establishes that the case was reset again when the trial court granted JCI’s motion for continuance. The new trial setting was February 6, 2017. While the case did not go to trial that day, the record does not explain the reason it did not do so.

Once the question of the application of maritime law was introduced into the case, the briefing on the applicability of maritime law dominated the remainder of the case. The parties did extensive briefing on the subject spanning hundreds of pages in the appellate record. The trial court eventually determined that maritime law applied to appellants’ claims and that maritime law precluded the recovery of non-pecuniary damages, specifically Pepper’s pre-death pain and suffering. Based on the parties’ stipulation that, with non-pecuniary damages precluded by the trial court’s ruling, the amount of prior settlements exceeded the maximum possible recovery of pecuniary damages, the trial court signed a take-nothing final judgment for JCI. This appeal followed.

ANALYSIS

I. JCI did not waive the application of maritime law.

Appellants argue in their first issue that JCI waived the application of federal maritime law in this case because JCI did not plead preemption in its original answer. Then, recognizing that JCI added preemption in an amended answer, appellants argue that the trial court abused its discretion when it allowed JCI to add the defense. JCI responds that it did not waive the application of maritime law because it timely filed its amended answer. It further responds that the trial court did not abuse its discretion because appellants cannot show they were prejudiced by the amended answer. We agree with JCI.

A party may waive the defense that a claim is preempted by federal law. See Id.

The general rule regarding pleading amendments is that the parties may freely amend if the amended pleading is filed at least seven days before trial. See Greenhalgh v. Service Lloyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990) (stating burden for showing surprise is on party opposing the amendment).

*3 We turn first to appellants’ contention that JCI’s failure to include maritime law in its original answer waived the application of maritime law in this case. Appellants have cited no authority supporting their contention that preemption must be pleaded in a defendant’s original answer or it is waived. See PHI, Inc. v. LeBlanc, No. 13-14-00097-CV, 2016 WL 747930, at *9 (Tex. App.—Corpus Christi Feb. 25, 2016, pet. denied) (mem. op.) (“Thus, in the absence of any authority supporting a conclusion that under these circumstances a party waives the application of maritime law, we cannot conclude that the trial court abused its discretion by determining that LeBlanc had not waived it.”). We therefore reject appellants’ contention that JCI’s failure to include maritime law as a defense in its original answer, standing alone, demonstrates JCI waived maritime law as a defense.

Appellants next argue that JCI’s delay in adding the preemption defense demonstrates waiver. In this situation appellants must show that this delay by JCI clearly demonstrates an intent to not rely upon maritime law. Hollis, 2019 WL 3334617 at *4 (holding appellant waived preemption argument by failing to raise it in the trial court). Our conclusion is reinforced by the fact that JCI included maritime law arguments in its motion for summary judgment, which demonstrates JCI did not intend to waive reliance on maritime law as a defense.

Next, appellants argue that the trial court abused its discretion when it allowed JCI to add maritime law as a defense because doing so surprised and prejudiced appellants. Appellants, quoting from Tanglewood Homes Ass’n, Inc. v. Feldman, 436 S.W.3d 48, 64 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (addressing trial amendment).

Appellants offer no explanation on how they were surprised by JCI’s amended answer adding maritime law as a defense. Even if they had, we conclude the amended pleading did not operate as a surprise because JCI had previously asserted maritime law in its motion for summary judgment and appellants could have anticipated the maritime law defense in light of Pepper’s service in the Navy where he was regularly exposed to asbestos-containing products. See First State Bank of Mesquite v. Bellinger & DeWolf, LLP, 342 S.W.3d 142, 146 (Tex. App.—El Paso 2011, no pet.) (stating that even though parties had been litigating for several years, because the bank waited until after the pleading deadline to add claims, the trial court could have reasonably found that the late amendment was calculated to surprise bank’s opponent).

*4 Appellants assert that they were prejudiced by the delay in JCI pleading the application of maritime law. Appellants initially argue they were prejudiced because JCI did not plead maritime law prior to Pepper’s deposition and, since he had subsequently died, they were deprived of the opportunity to question him about the time he spent working with JCI gaskets on land, in dry dock, in territorial waters, and on the high seas. Pepper’s entire deposition appears in the appellate record. The transcript makes clear however, that Pepper was questioned about these subjects during his deposition. We therefore conclude that appellants have not established they were prejudiced by the addition of maritime law to the case after Pepper’s deposition.

Finally, appellants assert they were prejudiced because, “had JCI pleaded its affirmative defense in a timely fashion, [appellants] would have developed this case differently and sought an early determination on the choice of law.” Appellants offer no specifics on what procedures or discovery mechanisms they would have used, but could not, as a result of the delay in the addition of maritime law to the case.1 We therefore conclude appellants have not shown they were prejudiced by the addition of maritime law to the case. We overrule appellants’ first issue.

II. The trial court did not err when it determined that maritime law applied to appellants’ claims.

Appellants argue in their second issue that the trial court erred when it determined that maritime law applied to appellants’ claims because JCI identified a conflict between Texas law and maritime law only on the availability of punitive damages. JCI responds that the trial court correctly determined that state law was preempted because, when it is properly “invoked, maritime law becomes the exclusive remedy under which a party may proceed, preempting all state law grounds of recovery.” E. River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 864, 106 S.Ct. 2295, 90 L.Ed.2d 865 (1986) (stating that the applicability of maritime jurisdiction results in federal maritime law displacing state law.). We once again agree with JCI.

As the Texas Supreme Court stated in Id.

*5 The Conner court’s reasoning persuasive and adopt it here.

Appellants allege that Pepper was exposed to asbestos-containing products manufactured by JCI while serving in the Navy on two Navy ships. It is undisputed that JCI manufactured, marketed, and sold gasket material containing asbestos to the Navy. It is also undisputed that JCI’s products were used on the ships where Pepper served and that he used those products while performing his duties. Like the Grubart test for the application of maritime law. We hold that the trial court did not err when it concluded that federal maritime law preempted state law on appellants’ claims. We overrule appellants’ second issue.

III. The trial court erred when it denied appellants the opportunity to recover pre-death pain and suffering damages.

Appellants argue in their third and fourth issues that the trial court erred when it determined that “it is appropriate to look to DOHSA in this case regarding the award of damages, as such plaintiff may not recover non-pecuniary damages.” In appellants’ view, DOHSA does not apply directly or indirectly, and it therefore does not limit their “ability to recover damages for the pain and suffering of Mr. Pepper.” We agree with appellants.

As with appellants’ second issue, we are not the first court to trod this path. Both the Virginia Supreme Court and the Southern District of Florida addressed, and rejected, the same arguments JCI raises here in previous litigation involving JCI. See 568 U.S. 1161, 133 S.Ct. 1263, 185 L.Ed.2d 184 (2013). JCI responds that both courts simply got it wrong. We disagree.

In a well-reasoned opinion, the Virginia Supreme Court determined that DOHSA did not apply in a comparable case involving a former-Navy sailor who developed Miles, 498 U.S. at 33, 111 S.Ct. 317). The Virginia Supreme Court continued

*6 [t]he Supreme Court held in Miles, ‘we must look to the Jones Act.’

Accordingly, we hold that, while the recovery of nonpecuniary damages is not permitted in actions for the wrongful death of a seaman, ‘whether under [the Death on the High Seas Act], the Jones Act, or general maritime law,’ such damages may be recovered in a general maritime survival action, provided they represent damages suffered during the decedent seaman’s lifetime—as the award of damages for Hardick’s pre-death pain and suffering does in this case.

JCI argues that the Supreme Court’s decision in mesothelioma is an indivisible disease. We do not agree that DOHSA applies.

Id. at 3 (internal citations omitted).

The Virginia Supreme Court then examined Id.

Similarly, the Southern District of Florida has also held that DOHSA does not apply to the claims of a Navy seaman who was exposed to asbestos on both the high seas, in territorial waters, and on land. See Hays, 2014 WL 10658453 at *2. The court held that it rejected

JCI’s attempt to apply DOHSA to the facts of this case. By its terms, DOHSA applies solely to the deaths caused on the high seas. The Court is unaware of any case that has held that DOHSA restricts recoverable damages for an indivisible injury in a case where some of the exposure to asbestos-containing products occurred on the high seas and some occurred in territorial waters.

*7 Id. at *5.

Like those courts did before us, we conclude that DOHSA does not apply to appellants’ claims and that, while appellants may not recover non-pecuniary damages under federal maritime law, they may recover damages for Pepper’s pre-death pain and suffering.3 We therefore sustain appellants’ third and fourth issues.

CONCLUSION

We affirm the trial court’s determination that maritime law applies. Having sustained appellants’ third and fourth issues, we reverse the trial court’s take-nothing final judgment to the extent it was based on the trial court’s determination that appellants’ could not recover damages for Pepper’s pre-death pain and suffering, and remand to the trial court for further proceedings consistent with this opinion.

(Jewell, J., concurring).

CONCURRING OPINION

Kevin Jewell, Justice, concurring.

At issue is availability of survival damages for the decedent’s pre-death pain and suffering under general maritime law from John Crane, Inc. (JCI), which is alleged to have defectively designed, manufactured, and marketed asbestos-containing sheet gasket material provided to the United States Navy. The decedent, Garland Pepper, allegedly was exposed to the gaskets while serving aboard two Navy vessels from 1957 to 1967. The court concludes that JCI did not waive application of general maritime law, which applies to appellants’ claims, and that survival damages for the decedent’s pre-death pain and suffering are recoverable under general maritime law. While I join the majority opinion with respect to parts I and II, I concur in the judgment as to part III and write separately to explain my reasoning.

A. Maritime uniformity under Miles

In passing the Jones Act, Miles, 498 U.S. at 27, 111 S.Ct. 317. This uniformity principle forms the foundation of both sides’ arguments in the present case, so I examine how the Supreme Court has applied it.

*8 In Moragne and later cases illustrate, necessarily entails examination of, and respect for, legislative policy preferences.

The court applied this principle again in id. at 27, 111 S.Ct. 317, so if a remedy is unrecognized under a maritime cause of action established by statute, general maritime law should not recognize it either.

Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 625, 98 S.Ct. 2010, 56 L.Ed.2d 581 (1978)).

*9 In subsequent cases, the court has consistently adhered to Miles, 498 U.S. at 33, 111 S.Ct. 317).

B. Relevant legislative policy supports recovery of pre-death pain and suffering damages under a general maritime survival claim

With that, I turn to the case at hand. After concluding that maritime law governed, the trial court applied Miles, looked to DOHSA as a legislative policy reference, and ruled that appellants may not recover non-pecuniary damages, including loss of society, lost future earnings, pre-death pain and suffering, and punitive damages. On appeal, regarding recoverable damages, appellants challenge the judgment only with respect to pre-death pain and suffering.

Applicable in territorial waters and on the high seas, the Jones Act establishes a negligence cause of action for injuries or death suffered in the course of employment, but only for seamen.2 Dooley, 524 U.S. at 122, 118 S.Ct. 1890 (“DOHSA does not authorize recovery for the decedent’s own losses....”). Also, DOHSA does not apply in territorial waters.

Viewing the facts most favorably to appellants, neither the Jones Act nor DOHSA apply directly to their claims, and appellants have not pleaded a right to recover under either statute. Though the parties agree that Pepper was a seaman under general maritime law, that he was allegedly injured in the course of employment as a seaman, and that he ultimately died from his injuries, Pepper did not have a Jones Act claim against JCI because JCI was not his employer. See Miles, 498 U.S. at 23, 28, 111 S.Ct. 317. Neither is DOHSA controlling because there exists at least some evidence that the alleged wrongful acts or negligence causing Pepper’s death occurred only in part on the high seas, if at all.

The claims against JCI are for products liability. The law of products liability has been incorporated into general maritime law. Miles, we must therefore consult relevant legislative policy preferences in assessing whether the representative of Pepper’s estate may recover pre-death pain and suffering in a general maritime survival action.4

*10 Both sides rely heavily on the Miles recovered pre-death pain and suffering damages, which remained undisturbed on appeal; and (3) two recent decisions from Virginia5 and Florida6 addressing this issue—indeed involving JCI—referred to the Jones Act in holding that such recovery is available.

JCI, on the other hand, argues that DOHSA controls all remedies because: (1) “an unbroken line of Supreme Court precedent dictates that courts must follow DOHSA’s remedial scheme in determining the damages available under general maritime law”; (2) Pepper was exposed to asbestos while working on the high seas; (3) Pepper was a seaman whose recovery is defined by Higginbotham, 436 U.S. at 624, 98 S.Ct. 2010 (“DOHSA should be the courts’ primary guide as they refine the nonstatutory death remedy”).

1. Relevant legislative guidance is not limited to DOHSA.

Upon full consideration, I disagree with JCI that we should look only to DOHSA as the relevant legislative policy guide. For several reasons, the Jones Act is a proper reference. To begin with, the Jones Act bears on the analysis because Pepper was a seaman, and the parallels between appellants’ claims and the Jones Act are numerous. While DOHSA applies broadly to “any person,” including seamen, the Jones Act created causes of action to benefit seamen specifically, establishing a “uniform system of seamen’s tort law,” Miles, 498 U.S. at 29, 111 S.Ct. 317, particularly to address seamen’s injury and death suffered while in the course of employment on a vessel, as allegedly happened to Pepper. The Jones Act permits actions in negligence, and appellants’ products liability claims sound in negligence, at least in part. As mentioned, there is some evidence that the alleged negligence in question did not occur on the high seas, but in part in territorial waters where the Jones Act applies and DOHSA does not. The only reason Pepper did not have a direct claim under the Jones Act against JCI is because JCI was not Pepper’s employer.

Of course, the Jones Act provides that a seaman’s injury claims survive death, and this case is about survival damages.7 Maritime survival is a statutory creation traditionally unavailable at common law. See Townsend, 557 U.S. at 415, 129 S.Ct. 2561. The Jones Act reflects a policy choice to allow a survival right for seamen injured due to employer negligence.

*11 As a seaman, moreover, Pepper was uniquely a ward of admiralty, to whom general maritime law has long directed “special solicitude.” Mich. Cent. R.R. Co. v. Vreeland, 227 U.S. 59, 65, 33 S.Ct. 192, 57 L.Ed. 417 (1913) (same).

Additionally, insofar as seamen are concerned, the Jones Act and DOHSA provide complementary, not preclusive, remedies. If a seaman dies on the high seas, he is not limited solely to DOHSA but may sue under the Jones Act as well. See, e.g., Townsend, 557 U.S. at 424, 129 S.Ct. 2561. It follows that when both the Jones Act and DOHSA are closely related to the general maritime claim at issue, the most restrictive relief is not mandated.

Thus, even accepting JCI’s proposition that all of its allegedly negligent conduct and all of Pepper’s alleged asbestos exposure occurred on the high seas, the Jones Act would remain relevant to assessing available general maritime remedies because the Jones Act applies to seamen on the high seas. While DOHSA, too, provides a wrongful death claim for seamen, the Jones Act does not suddenly become irrelevant when a seaman such as Pepper is injured and later dies. See Miles, 498 U.S. at 32, 111 S.Ct. 317 (“[T]he Jones Act applies when a seaman has been killed as a result of negligence....”).

Notably, the Supreme Court has turned to the Jones Act in pursuing maritime uniformity when a seaman is involved. Miles, 498 U.S. at 33, 111 S.Ct. 317).

*12 The Supreme Court has also looked to the Jones Act as a relevant legislative reference even when seamen were not involved. In Id. at 817, 121 S.Ct. 1927.

Citing Higginbotham said DOHSA should be courts’ “primary guide” in death cases on the high seas, but it is not the only guide when injuries and death to seamen are at issue.

Because the parallel rights created by the Jones Act are “closely related” to appellant’s survival claims, see Hays have reached the same conclusion. JCI says those decisions are wrong. For the reasons explained, I respectfully disagree.

2. A seaman may recover pain and suffering for his personal injuries under the Jones Act; his estate may recover those damages in survival.

Having concluded that the Jones Act is an appropriate legislative reference for applying Deal v. A.P. Bell Fish Co., 728 F.2d 717, 718 (5th Cir. 1984).

*13 Pain and suffering is a non-pecuniary form of damage. See, e.g., Miles does not permit survival recovery in general maritime beyond that otherwise available under the Jones Act. Neither do we.8

Allowing pre-death pain and suffering under the present circumstances is both within the legislative limits established by Congress and “more consistent with general principles of maritime tort law” as revealed by relevant legislatures. See id. at 36, 111 S.Ct. 317. I therefore agree with the trial court in all respects except for Pepper’s pre-death pain and suffering survival claim under general maritime law.

3. Under the present circumstances, recovery is available from a non-employer product manufacturer.

Finally, JCI argues that pre-death pain and suffering as survival damages under a general maritime claim should never be available against a non-employer, even if reference to the Jones Act is proper. JCI points to Scarborough is not on point.

Moreover, I disagree with JCI for a separate reason. Given that the present claims are based on products liability—a body of law incorporated into general maritime law—JCI’s argument contravenes an underlying purpose of products liability law: that strict liability should be imposed on the party best able to protect persons from hazardous materials. JCI’s proposed rule would shield product manufacturers in these types of suits. Subsuming products liability law into the general maritime law would serve little purpose if seamen could not bring such claims against product manufacturers, who rarely if ever are the seaman’s employer. I thus conclude that pain and suffering losses are recoverable under a products liability claim in survival against JCI even though it was not Pepper’s employer.

For these reasons, I concur in the judgment as to part III of the majority opinion.

Footnotes

1 In making this argument, appellants do not mention the fact that the case did not go to trial in 2015, in fact extended into 2018, and the parties had every opportunity to fully brief the maritime law issue for the trial court.
2 For example, in their response in opposition to JCI’s supplemental motion to apply maritime law and motion to reconsider regarding DOHSA, appellants stated:

The Court has indicated that general maritime law will apply in this case, but that the Death on the Highs Seas Act (“DOHSA”) will not apply because neither Mr. Pepper’s death, nor [JCI’s] wrongful conduct occurred on the high seas. The court’s resolution of those issues was correct and need not be revisited.

3 Appellants assert in their Reply brief that they are also eligible to recover punitive damages. We need not reach that question because we conclude that appellants waived the issue of punitive damages when they conceded on page 13 of their opening brief “that maritime law would not support the recovery of punitive damages in this case.” In addition, we conclude they waived consideration of punitive damages when they did not raise an issue regarding punitive damages in their opening brief. Marsh v. Livingston, No. 14-09-00011-CV, 2010 WL 1609215, at *4 (Tex. App.—Houston [14th Dist.] April 22, 2010, 2013, pet. denied) (mem. op.) (stating Texas Rules of Appellate Procedure do not allow an appellant to add a new issue in a reply brief that was not discussed in its opening brief).
1 The decedent’s mother asserted two claims: negligence under the Jones Act, and unseaworthiness under general maritime law. Id.
2 To qualify as a seaman under the Jones Act, the worker’s duties must contribute to the function of the vessel or to the accomplishment of its mission, and the worker must have a connection to a vessel in navigation (or an identifiable group of vessels) that is substantial in terms of both its duration and its nature. See Chandris, Inc. v. Latsis, 515 U.S. 347, 376, 115 S.Ct. 2172, 132 L.Ed.2d 314 (1995) (describing test for seaman status).
3 45 U.S.C. §§ 51 et seq.
4 I will presume that a survival action under general maritime law exists because it does in this circuit and the Supreme Court has yet to affirmatively say otherwise. See Dooley, 524 U.S. at 124, 118 S.Ct. 1890.
5 568 U.S. 1161, 133 S.Ct. 1263, 185 L.Ed.2d 184 (2013).
6 Hays v. John Crane, Inc., No. 09-81881-CIV-KAM, 2014 WL 10658453, at *2 (S.D. Fla. Oct. 10, 2014).
7 Texas state law also permits survival claims. See Tex. Civ. Prac. & Rem. Code § 71.021.
8 We do not address any form of damage other than the decedent’s pre-death pain and suffering.

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

|

Opinions filed May 28, 2020

On Appeal from the 133rd District Court, Harris County, Texas, Trial Court Cause No. 2015-18367

Attorneys & Firms

Curry L. Cooksey, The Woodlands, Carol Y. Kennedy, for Appellant HNMC, Inc.

Hunter Oliver, for Appellant Siemens Medical Solutions USA, Inc. and James E. Budd.

David Salazar, Andrew Bender, Houston, for Appellees.

Panel consists of Justices Poissant

OPINION

Kevin Jewell, Justice

*1 The dispositive issue in this appeal is whether a premises owner owed a legal duty to a pedestrian who left its property and was killed in an adjacent public roadway after being struck by a negligent driver. Generally, a premises owner does not owe a duty to ensure the safety of persons who leave the owner’s property and suffer injury on an adjacent public roadway. Though Texas courts have recognized four common-law exceptions to this general rule, none apply to the facts of this case as a matter of law. We hold that the premises owner did not owe the deceased a duty to protect her from, or otherwise warn of, the dangers of crossing the public roadway. We reverse the trial court’s judgment in favor of appellees and render a take-nothing judgment in the premises owner’s favor.

Background

Leny Chan worked as a nurse for more than thirty years at Houston Northwest Medical Center (“HNMC”). After her shift ended on March 17, 2015, Chan exited 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 owned by HNMC across Cali Drive. The quarter-mile long parking lot had two pedestrian gates toward 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; there is no marked crosswalk located at the mid-block location near the hospital’s northeast exit.1

As she had done in the past when leaving the hospital, Chan walked across Cali Drive at a mid-block location directly outside the northeast exit door instead of using one of the two marked crosswalks toward 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 vehicle entrance/exit, was fenced.

As Chan crossed Cali Drive toward the parking lot, a car driven by James Budd exited the lot, turned left into the roadway, and struck Chan. Chan died from her injuries.

Chan’s husband and two sons (appellees) sued Budd and Budd’s employer, Siemens Medical Solutions USA, Inc., 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.

*2 Appellees then added HNMC as a named defendant, alleging that HNMC was negligent for:

• 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 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 HNMC owed no legal duty to Chan as a pedestrian in a public street. The trial court did not rule on this motion.

After trial on the merits, the jury found that the negligence of Budd, HNMC, Harris County, and Chan proximately caused Chan’s death. The jury found Budd 40% responsible, HNMC 20% responsible, Harris County 30% responsible, and Chan 10% responsible. The jury awarded a total of $10 million to Chan’s husband and $2.5 million to each of Chan’s sons. The trial court signed a final judgment 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 in place.

HNMC appeals and seeks either a rendition of a take-nothing judgment or a new trial.

Issues

HNMC raises five issues. First, the hospital argues that its subscription to the statutory workers’ compensation coverage scheme bars appellees’ claims.2 Second, HNMC argues that it owed no duty to ensure Chan’s safety while she crossed the public roadway. Third, 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. Fourth, HNMC argues that the evidence is legally and factually insufficient to support the jury’s verdict. Finally, the hospital argues that certain evidentiary rulings were harmful error. Because HNMC’s second issue is dispositive, we address only that issue. See Tex. R. App. P. 47.1.

Analysis

A. General Principles of a Premises Owner’s Duty

The threshold inquiry in any negligence case is whether the defendant owes a legal duty to the plaintiff. Fort Bend Cty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991).

In this case, we start with the general rule 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 Grapotte v. Adams, 130 Tex. 587, 111 S.W.2d 690, 691 (1938)).

*3 A case from the San Antonio Court of Appeals illustrates this general principle. In Id.

The Austin Court of Appeals addressed allegations of negligence similar to those asserted here in Id. at *3.

Here it is undisputed that Chan was not on HNMC’s property when Budd’s vehicle struck and killed her and that Budd was not under HNMC’s control. Chan was crossing a public roadway owned and maintained by Harris County. 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. Accordingly, under the general rule of premises liability applicable here, HNMC had no duty to ensure Chan’s safety as she walked across Cali Drive. See Hirabayashi, 977 S.W.2d at 706.3

B. Exceptions to the General Principle

*4 Texas courts have recognized four common-law 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. Under these exceptions, an 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 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 court necessarily concluded HNMC owed a duty to Chan, although the specific basis for the duty is not stated in the record.

1. HNMC did not agree to make Cali Drive safe for pedestrians.

Appellees argue that the present evidence supports a duty under all four exceptions, but they rely most heavily on the first—i.e., that HNMC agreed to make Cali Drive safe for pedestrians.

The jury received exhibits detailing correspondence between Terry Anderson, HNMC’s director of plant operations, and Jerry Eversole, a county commissioner with Harris County. In 2009, Anderson wrote Eversole after a vehicle struck one of the hospital’s nursing staff as he crossed Cali Drive at a pedestrian crossing. Acknowledging “other scares at our Pedestrian Crossings around the perimeter of the campus,” Anderson characterized the issue as “too serious to ignore for the protection of our patients, visitors, staff and physicians.” Anderson asked Eversole to “please consider installing speed bumps at [HNMC’s] Pedestrian Crossings.” The county rejected Anderson’s request, because “speed bumps have always been illegal on county roadways.”

Anderson wrote Eversole again in 2010 and described another incident of a vehicle striking a pedestrian as she crossed Cali Drive. In the 2010 letter, Anderson sought a meeting with the county “to review options about this continuous danger facing our patients, staff and physicians.” Internal email correspondence between county employees indicates that a meeting occurred shortly after Anderson’s request, and the county agreed to “initiat[e] a study of the streets around the hospital campus.” In that same internal correspondence, a county employee stated that “[t]he hospital has a design project underway which will change the hospital’s front entrance and alter some parking locations. Our recommendations will include some steps that the hospital will consider for their construction program.”

The county then conducted a study along Cali Drive for pedestrian and patient safety, as well as a safety analysis “to determine what, if any, additional safety measures are warranted.” In 2012, following the traffic engineering study, the county formally responded to Anderson’s 2010 request for assistance and made the following recommendations:

1. Removal of 2 of 5 existing pedestrian crossings

2. Refresh pavement markings on the 3 remaining crossings

3. Replace existing pedestrian crossing signs and down arrows with larger signs

4. Install crosswalks at all-way stop sign intersections

5. Advise Houston Northwest Medical Center to arrange for removal of existing mid-block flasher & install TMUTCD approved warning beacons with advance signs

6. Advise Houston Northwest Medical Center to arrange for removal/relocating of parking lot access points to align with the 3 remaining crossings

*5 The county commissioner indicated that the county would complete the first four modifications or improvements but stated that it would be “the responsibility of Houston Northwest Medical Center to arrange for the completion of items 5 and 6.” It is undisputed that HNMC did not take any measures to complete items 5 and 6 before Chan’s death.

According to appellees, because HNMC alerted Harris County to the hospital’s concerns about pedestrian safety on Cali Drive and because Harris County responded with recommendations, HNMC agreed to make safe Chan’s passage from the hospital to the parking lot. We disagree.

The cited exception does not apply here because HNMC did not agree, contractually or otherwise, impliedly or expressly, to make safe the known danger of crossing the roadway. The Supreme Court of Texas’s decision in Gundolf v. Massman-Johnson, 473 S.W.2d 70, 73 (Tex. App.—Beaumont 1971, writ ref’d n.r.e.) (contractor owed invitee a duty because contractor undertook to remove algae that caused plaintiff’s injury but “failed to remove all of the algae from the tail race slab”) (emphasis added).

In contrast, when a claimant alleges that the defendant simply failed to ensure the safety of a third party’s premises—without a concomitant agreement to do so—then the exception does not apply and no duty of care exists. See, e.g., Holland v. Mem’l Hermann Health Sys., 570 S.W.3d 887, 898 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (exception did not apply because the evidence did not demonstrate any affirmative action on hospital’s part to make safe a known, dangerous condition in the roadway).

Here appellees presented no evidence that HNMC agreed to ensure Chan’s safety as she crossed Cali Drive. Appellees cite no evidence, nor do we see any in the record, establishing that HNMC voluntarily undertook a duty to make it safe for pedestrians to cross Cali Drive. Appellees point to the correspondence between HNMC and Harris County, particularly Harris County’s recommendations following its traffic study, but this evidence is not legally sufficient to establish an agreement by HNMC to make the roadway safe for pedestrians. HNMC asked Harris County to address the issue because Harris County owns and controls the roadway. Harris County recommended a list of corrective measures and took the position that two action items were HNMC’s and not the county’s responsibility. But there exists no evidence that HNMC agreed with those recommendations or agreed to undertake, or in fact undertook, any of the listed items. Indeed, appellees’ main contention is that HNMC failed to take any action whatsoever. See Holland, 570 S.W.3d at 898 (rejecting exception because “the crux of Holland’s allegations against Memorial Hermann is that it failed to act—whether by warning, making safe, or otherwise”). Seeking recommendations from Harris County to address pedestrian safety is not the same thing as expressly or impliedly agreeing to implement any measures ultimately recommended.4

*6 Appellees also focus on the “design project” referenced in the 2010 email correspondence among Harris County personnel, specifically the statement that “[t]he hospital has a design project underway which will change the hospital’s front entrance and alter some parking locations.” In a post-submission letter, appellees discuss the design project under a heading, “The record establishes the Hospital’s undertaking to alter its parking-lot design as necessary to improve pedestrian safety.” Even assuming, as appellees invite us to do, that the hospital’s design project and the county’s study were part and parcel of an overall pedestrian safety improvement plan, there is still no evidence that HNMC undertook affirmative steps to make Cali Drive safer for pedestrian and then failed to complete those particular measures in a safe manner. Cf. Gundolf, 473 S.W.2d at 73. There is no evidence what changes, if any, HNMC contemplated making to its premises as part of its purported design project, where those changes would be made, or—most pertinently—whether HNMC actually undertook any of them and did so negligently.

For these reasons, we conclude that HNMC did not agree to make Cali Drive safe for pedestrians to cross and thus did not assume a duty to Chan under the first exception.

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

The second exception applies when the premises owner creates the hazardous condition that causes or contributes to the plaintiff’s injury. See, e.g., Hirabayashi, 977 S.W.2d at 707.

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.

None of these allegations supports a theory that HNMC created the hazardous condition at issue on Cali Drive. The fact that pedestrians must cross Cali Drive to reach a parking lot is not a hazardous condition. See Hirabayashi, 977 S.W.2d at 707-08. We also disagree that HNMC’s configuration of its entry and exit doors physically “funneled” pedestrians into crossing the street mid-block. 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; the fence surrounding the lot contained pedestrian gates near each marked crosswalk. We decline to impose a duty on a premises owner to align its doors with marked crosswalks, especially considering that Harris County, not HNMC, solely controlled the placement and maintenance of those crosswalks.

Finally, 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.5

*7 Appellees nevertheless contend that the signs created a hazard because “drivers leaving this parking lot must focus their attention northward, scanning for southbound vehicles, rather than focusing southward where pedestrians [such as Chan] cross from the Hospital exit.” This argument assumes that drivers will then 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. This ignores the general principle that a premises owner is not responsible for the potentially negligent acts of third parties who leave the owner’s property. See, e.g., Id.

3. HNMC did not assume actual control over any part of Cali Drive.

The third exception arises when a premises owner or occupier assumes actual control over adjacent property. Here, HNMC did not take any affirmative action to assume control or possession of the roadway. There is no dispute that Harris County owned and was exclusively responsible for maintaining Cali Street. See 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) (“Moreover, the burden of controlling traffic on a public road is a governmental function that cannot be transferred to a private entity.”).

Compare the present facts with those the supreme court confronted in Id. at 325.

The evidence here does not show that HNMC actually exercised control over Cali Drive. Again, appellees argue that HNMC placed the “vision-obstructing sign” on the county’s right-of-way adjacent to the street, thereby assuming control over the county’s property and assuming a duty to protect others against the danger. As stated above, however, the sign was not the hazardous condition that caused Chan’s injury.

4. HNMC did not fail to warn of an obscured danger.

Finally, there was no obscured danger of which HNMC knew and about which HNMC should have warned pedestrians. See Parking, Inc. v. Dalrymple, 375 S.W.2d 758, 762-63 (Tex. App.—San Antonio 1964, no writ).

*8 Here, in contrast, “[t]he obvious presence of cars passing on a roadway is not an ‘obscured’ danger.” id.

C. Foreseeability of Danger

Appellees argue that, regardless of the general rule that a premises owner owes no duty to protect passers-by in an adjacent public roadway and assuming none of the four exceptions apply, HNMC nevertheless owed a duty to pedestrians based on the foreseeability of dangers it knew from previous incidents. The evidence establishes that HNMC was concerned about pedestrian safety along Cali Drive, stemming from at least 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.

But foreseeability alone is not sufficient to justify the imposition of a duty. See, e.g., Graff, 858 S.W.2d at 920.

Weighing these factors here, any foreseeability of the risk by HNMC is not enough to impose a duty. 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 record shows two prior similar incidents, but those occurred five to six years before Chan’s incident. The evidence does not show that the risk and likelihood of injury was great. 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 and of which every member of the community is aware would impose a substantial burden on property owners, which is not easily or reasonably justified. See, e.g., Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 226-27 (Tex. App.—Houston [14th Dist.] 1994, writ denied). In a post-submission letter, appellees summarize the steps that HNMC could have taken to ensure pedestrian safety along Cali Drive:

*9 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 condition, he owes no legal duty to render assistance”). 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 relative to any of the other parties.

Based on current precedent governing premises liability, we are unwilling to expand a premises owner’s duty to pedestrians in circumstances such as those presented here.

D. Other Jurisdictions

Finally, we find support for our holding today in similar cases from other jurisdictions. Of particular note is a recent decision from the California Supreme Court. In that case, a vehicle struck and injured a pedestrian walking from a parking lot to a church building across the street. Id. After observing that the ability of landowners to reduce the risk of injury from crossing a public street is limited, the California Supreme Court agreed that

a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner’s premises, so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner.

Id.

In reaching this conclusion, the court reasoned in part—as we do today—that the danger posed by crossing a public street mid-block is obvious, and there is ordinarily no duty to warn of obvious dangers. Vasilenko, we find the California court’s reasoning and its ultimate holding persuasive to our own analysis of the issue of duty.

Conclusion

*10 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. We sustain HNMC’s second issue, reverse the trial court’s judgment, and render judgment that appellees take nothing from HNMC.

(Poissant, J., dissenting).

DISSENTING OPINION

Margaret ‘Meg’ Poissant, Justice, dissenting.

I dissent to the majority’s opinion sustaining Houston Northwest Medical Center’s (HNMC) second issue, reversing the trial court’s judgment, and rendering a take nothing judgment against HNMC.

“It is well established that an appellate court cannot merely substitute its judgment for that of a jury, because the court cannot exercise its constitutional authority to the detriment of the right of trial by jury, which is of equal constitutional stature.” Hall v. Sonic Drive-In of Angleton, Inc., 177 S.W.3d 636, 646 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).

In the case at issue, based on the evidence presented, the jury found that all of the parties were negligent in causing the death of Leny Rey Chan on March 17, 2015, assessing twenty percent of the responsibility to HNMC.

The majority acknowledges that Chan and other pedestrians must cross Cali Drive to reach HNMC’s parking lot. The hazard in this case was not just the roadway, nor the fact that Chan and other pedestrians had to cross the roadway. The dangerous condition was the design of pedestrian routes and access points on HNMC’s property in combination with the design of HNMC’s east parking lot.

Chan’s car was parked in the east surface parking lot owned by HNMC. In order to reach the HNMC east parking lot from HNMC’s northeast entrance, Chan, an employee of HNMC, had to cross Cali Drive. It is undisputed that Cali Drive is a public roadway, controlled and maintained by Harris County. Chan exited the building from the northeast door of HNMC with two of her colleagues, walked down a set of stairs that almost directly lined up with the only vehicle entrance and exit to the east parking lot, crossed a concrete pad leading to a crosswalk, entered the crosswalk with her co-workers, and halfway to the east parking lot, was struck and killed by a vehicle attempting to exit the parking lot by turning left on Cali Drive.

The east parking lot is a quarter mile long with two pedestrian gates at each end of the lot, and a single operative vehicle entrance/exit at a mid-block location. At the time of the incident, there appeared to be a pedestrian crosswalk with faded markings across Cali Drive at mid-block which align with concrete pads on both sides of HNMC property. The majority maintains that there was no “marked” crosswalk at that location, and therefore the crosswalk that had once been there was abandoned. The evidence refutes this assumption. The concrete pads installed on HNMC’s property extending into Harris County’s right of way, in combination with the location of the stairs at HNMC’s northeast exit, and the existing crosswalk markings, indicated that the crosswalk was not abandoned.

*11 Deputy Bedingfield, in documenting the incident, stated in his report that the crosswalk had deteriorating paint stripes, but unlike other crosswalks “in the vicinity of the hospital” there were no crosswalk signs. However, the photographs introduced into evidence show that the markings on the pavement were visible, despite the fact that the paint had deteriorated. Employees of HNMC testified they believed there was a crosswalk outside the northeast door of HNMC. Testimony from a long-time employee of HNMC, Lynne Jones, supports the conclusion that employees using the crosswalk outside the northeast door believed it was a crosswalk:

Q: All right. And when you told Mr. Guerrero that back on May 15th -- May 19th, 2015, that was your best recollection, that you really believed you were in that crosswalk?

A: I was in the crosswalk.

Jones, who was walking across the street with Chan when Chan was killed, testified that she considered the concrete pads on each side of the road part of the path to the parking lot: “I know that we were in the crosswalk because we were walking toward the concrete on the other side of the road, straight in front of us.” Jones testified that no one had ever made employees aware that there was no crosswalk outside the northeast door. The CEO of HNMC, Timothy Puthoff, testified by deposition at trial, confirming incidents of “misses and scares” on Cali Drive prior to March 17, 2015, when cars exited the east parking lot, as well as a specific incident of an HNMC employee being hit by a car, which was exiting the east end parking lot and turning left. Puthoff also acknowledged that he was not aware of anything the hospital did to warn pedestrians, employees, workers, or visitors that they were not supposed to use the crosswalk, or to notify drivers by signage or otherwise to be aware of pedestrians on Cali Drive. He further stated no one informed the employees of HNMC that the crosswalk had become a “non-designated” crosswalk, and there was no signage indicating such. Expert testimony from Andrew Kwasniak, a civil engineer who specializes in traffic engineering, provided expert opinion testimony that the concrete pads, in conjunction with the crosswalk, encouraged pedestrians to cross in the crosswalk, and further stated that Harris County documented that the number of pedestrians crossing Cali Drive at locations not designated as crosswalks was almost as high as the number of pedestrians crossing in designated crosswalks—forty pedestrian crossings at the location of the Chan incident in an hour, or the equivalent of one pedestrian crossing midblock every 1.4 minutes.

The general rule is that a property owner 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 a person’s safety against the dangerous acts of a third party. See Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609, 615 (1950). The jury reasonably could have made its finding of HNMC’s percentage of negligence based on two of the exceptions: 1) that HNMC created the dangerous condition and 2) that HNMC knew about, but failed to warn of, an obscured danger on land directly appurtenant to the premises.

*12 The facts in this case are distinct from the facts in the cases cited in the majority opinion. In Zapata v. Kariyaparambil, No. 14-96-00901-CV, 1997 WL 566222, at *3 (Tex. App.—Houston [14th Dist.] Sept. 11, 1997, no pet.) (mem. op., not designated for publication) (landowner whose overgrown vegetation obscured a driver’s visibility of a stop sign, thereby causing an accident, had a duty).

Here, HNMC owned and operated the hospital where Chan worked. It is undisputed that HNMC owned and operated the parking lot where Chan parked her car. Although Cali Drive is a public roadway, it is also part of the hospital complex used daily by employees and visitors to HNMC. HNMC does not dispute that it was able control its premises, including the design of the east parking lot, and the pedestrian areas on its premises. The driver of the vehicle that struck Chan had just exited the east parking lot. The design of HNMC’s premises placed vehicles exiting and entering HNMC’s east parking lot in the same area as pedestrians using the crosswalk from the northeast entrance of HNMC, which the majority acknowledges employees, including Chan, used for thirty years.

The majority declines to impose a duty that requires “a premises owner to align its doors with marked crosswalks.” However, a premises owner has a duty to make its premises safe for invitees. See, e.g., CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000) (“premises owners and occupiers owe a duty to keep their premises safe for invitees against known conditions that pose unreasonable risk of harm”). It is immaterial that the injury to Chan occurred on a public street. HNMC’s duty arises from the design of its premises that encouraged and allowed pedestrians to cross a roadway in a crosswalk knowing the crosswalk was not a safe path from HNMC’s building exit to HNMC’s parking lot. There was sufficient evidence for the jury to find HNMC was negligent.

The record is sufficient to support a finding that HNMC was aware of the danger to invitees and employees posed by the design of the access to HNMC’s parking lot prior to and at the time of the March 17, 2015 incident. The majority opinion details correspondence to and from HNMC acknowledging prior incidents, during the five years before Chan was fatally injured, including an incident during which another nurse was struck by a vehicle while crossing Cali Drive in the same crosswalk. HNMC also acknowledged “other scares” and characterized the issue as “too serious to ignore for the protection of our patients, visitors, staff and physicians.” In 2010, another hospital employee was hit by a car as she crossed Cali Drive. Prior to the Chan incident, HNMC wrote Harris County requesting a meeting to review options, which resulted in a study and recommendations made by Harris County. While this correspondence does not constitute an agreement by HNMC to correct the condition, it does show knowledge on the part of HNMC of the dangerous condition. The prior incidents and the correspondence also support that the danger to pedestrians was not open and obvious to pedestrians.

The testimony at trial reveals that HNMC’s employees did not know of the hazard posed by walking from HNMC in the area where the incident occurred. The majority points out that the danger of the roadway was open and obvious, and that there was no obstruction preventing visibility outside the northeast exit. The witnesses who were walking with Chan when she was struck testified that they checked the roadway and the parking lot before entering the crosswalk. An employee who was struck by a vehicle in a prior incident testified that he did not see any vehicles before entering the roadway. There were prior incidents and “scares” at the same location. The jury could have reasonably concluded that the danger to Chan and other pedestrians was obscured. The correspondence exchanged internally by HNMC, and between HNMC and Harris County, demonstrates that HNMC knew of the danger and yet failed to warn pedestrians. Testimony by long-time HNMC employees and HNMC’s CEO confirm that no warnings were given or posted at the location.

*13 HNMC took no action to correct a situation it acknowledges was “too dangerous to ignore.” The jury had a reasonable basis to find HNMC was liable based on a duty to warn of the danger posed by the crosswalk and pathway between HNMC and its east parking lot. See Buchanan, 159 S.W.2d at 110 (“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.”). There is sufficient evidence to support the jury’s verdict finding HNMC negligent.

The factors cited by the majority in weighing whether to recognize a common-law negligence duty weigh in favor of the jury’s verdict. In weighing 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, and considering whether one party had superior knowledge of the risk or a right to control the actor who caused the harm, the scales tip in favor of holding HNMC liable, in part, for the death of Chan. As HNMC was well aware, there was a dangerous condition that would, in all likelihood, cause serious injury, based on prior documented incidences; HNMC could have removed the steps from the eastside door, permanently barred the door, fenced off the crosswalk access, or removed the deteriorated paint and concrete pads, or followed the recommendations of Harris County in removing or relocating parking lot access points to align with the three remaining crossings, removed the mid-block flasher and installed Texas Manual on Uniform Traffic Control Devices approved warning beacons with advance signs; all of which was not of great magnitude in guarding against dangers “too serious to ignore” and what became a fatal injury; the consequences of placing this burden on HNMC would have been minimal, as it would have protected HNMC from liability as well as pedestrians from injury, as evidenced by the number of incidents, scares and near misses, which HNMC characterized as “too serious to ignore for the protection of our patients, visitors, staff and physicians.” Given the knowledge of multiple and serious incidents in the same crosswalk as the Chan incident, the letters and emails to Harris County of the known dangers and serious incidents, and the testimony acknowledging that no warnings were given to employees or pedestrians of the dangerous condition, HNMC had superior knowledge of the risk; and given that the harm could have been controlled by HNMC, it is apparent that HNMC had a common-law negligence duty.

Vasilenko, the plaintiff sought to hold the defendant church liable for maintaining an overflow parking lot requiring invitees to cross the street. In affirming summary judgment in favor of the church, the California Supreme Court held a landowner had no duty to assist invitees in crossing a public street to access the overflow parking lot, but qualified its holding by stating “so long as the street’s dangers are not obscured by or magnified by some condition of the landowner’s premises ...”, which is precisely what HNMC’s liability rests on here.

In reversing the jury’s verdict against HNMC, the majority substitutes its own judgment for that of the jury and fails to properly assess the factors recognizing a common-law negligence duty. The jury verdict against HNMC is supported by the evidence. I would affirm the judgment.

Footnotes

1 In the past, a marked crosswalk was located at mid-block near the hospital’s northeast exit. However, Harris County 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.
2 Except in instances of intentional acts or gross negligence, 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.
3 Appellees argue that HNMC owed Chan a duty because a premises owner “must exercise reasonable care not to jeopardize or endanger the safety of persons using the highway,” citing Dixon, 874 S.W.2d at 763. There is no allegation that HNMC released a dangerous agency into Cali Drive and therefore appellees’ cases are inapplicable.
4 A recommendation is merely advice or a suggestion; it ordinarily is not binding. See Black’s Law Dictionary, “Recommendation” (11th ed. 2019) (“1. A specific piece of advice about what to do, esp. when given officially. 2. A suggestion that someone should choose a particular thing or person that one thinks particularly good or meritorious.”).
5 Appellees rely on several cases holding that premises owners owed a duty to travelers because the owner obstructed the traveler’s view on the road. See 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). Because there was no analogous visual obstruction in this case, appellees’ cited authorities are unpersuasive.
6 The Obiechina v. Colls. of the Seneca, 171 Misc.2d 56, 60-62, 652 N.Y.S.2d 702 (N.Y. Sup. Ct. 1996) (same)). These additional authorities further bolster our decision.

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

Jeffrey A. LANGLEY and Alliant Insurance Services, Inc., Appellants

v.

INSGROUP, INC., Appellee

NO. 14-19-00127-CV

|

Opinion filed April 7, 2020

On Appeal from the 189th District Court, Harris County, Texas, Trial Court Cause No. 2018-82219

Attorneys & Firms

Melissa Nicholson Sternfels, Houston, Jeffrey A. Shadwick, for Appellee.

William Peterson, Michael Jones, Catherine Eschbach, for Appellants.

Panel consists of Justices Hassan.

MEMORANDUM OPINION

Jerry Zimmerer, Justice

*1 Appellants Jeffrey Langley and Alliant Insurance Services bring this interlocutory appeal of the trial court’s order denying their motion to dismiss under the Texas Citizens Participation Act (TCPA). See Tex. Civ. Prac. & Rem. Code Ann. § 27.002 et. seq. In seven issues, Langley and Alliant challenge the trial court’s ruling arguing (1) the TCPA is not preempted by the Texas Covenants Not to Compete Act; (2) the challenged claims are related to Langley and Alliant’s right of association and are covered by the TCPA; and (3) Insgroup failed to establish by clear and specific evidence a prima facie case for each element of each of its causes of action. Concluding that Insgroup’s causes of action fall within the commercial speech exception of the TCPA, we affirm the trial court’s order.

BACKGROUND

The plaintiff in this case is an insurance company. The defendants are Langley, who worked for Insgroup from 2015 through 2018, and Alliant, another insurance company for whom Langley began working in November 2018.

In May 2015 Langley began selling insurance for Insgroup. Langley signed a Producer Agreement (the Agreement), which was for a one-year term that would be automatically renewed each year. The Agreement could be terminated by either party giving at least 60 days’ written notice. The Agreement provided that Langley would be compensated in the form of salary plus commissions on a sliding salary scale for the first three years. The Agreement also provided a commission schedule under which Langley would be compensated. It is undisputed that after the third year of the Agreement Langley would no longer receive a salary and would be paid on commission alone.

Insgroup agreed to provide Langley with certain confidential information in the form of client lists including what Insgroup called “Restrictive Accounts.” In exchange for this information Langley agreed to be bound by a non-compete provision, which stated in material part that he would not solicit business from the Restrictive Accounts, and that he would not divert business from Insgroup. The Agreement bound Langley to these provisions for two years.

In May 2018, when the Agreement was set to automatically renew, Langley discussed his compensation with a supervisor. Langley understood that he would no longer receive a salary from Insgroup and asked whether he would still have health insurance, workers’ compensation coverage, and the ability to participate in a 401k plan. A human resources representative did not specifically answer Langley’s questions about benefits but told him not to “worry about it.” In June 2018, the first month Langley was not a salaried employee, Langley learned that he was unable to contribute to the firm’s 401k program. Langley remained unsure about his eligibility for health insurance and other benefits.

In August 2018 Langley was given another Producer Agreement, which changed his employment status to that of an independent contractor. The new agreement also removed undefined “fringe benefits” and workers’ compensation benefits. Langley refused to sign the new agreement. Effective June 1, 2018, Insgroup paid Langley as an independent contractor despite the fact that the Agreement had automatically renewed and Insgroup had not given 60 days’ notice of termination of the Agreement. Insgroup did not withhold payroll taxes, deduct health insurance premiums, or withhold contributions for a 401k. Insgroup proceeded as if Langley had signed the new agreement, which he had not.

*2 Langley subsequently accepted employment with Alliant in November 2018. Insgroup learned that after Langley began working for Alliant, he approached three of Insgroup’s clients from the Restrictive Accounts list. Based on Langley’s contact of the clients Insgroup sued Langley for breach of the non-compete agreement and tortious interference with Insgroup’s contracted clients. Insgroup subsequently amended its petition to include causes of action alleging tortious interference against Alliant, breach of fiduciary duty against Langley, and violation of the Texas Uniform Trade Secrets Act against Langley.

The trial court denied Insgroup’s application for temporary injunction and Insgroup filed a motion for reconsideration. In its motion for reconsideration Insgroup argued that Langley continued as an enrollee in Insgroup’s group health insurance plan after May 20, 2018. Insgroup attached the affidavit of Ryan Shinkle, the custodian of records for Insgroup, to the motion for reconsideration. In the affidavit Shinkle stated that Langley was enrolled in Insgroup’s health insurance plan at the time he left Insgroup.

Also attached was the affidavit of Charlene Ulmer, a senior account manager of Insgroup. Ulmer averred that Langley had misrepresented to Apache, a client, that Insgroup and Alliant were merging. According to Ulmer, Langley used this misrepresentation to lure Apache away from Insgroup as a client. William Covington, a vice president at Insgroup, filed an affidavit in which he averred that Langley had also signed Morrell, another client. Covington was able to thwart Langley’s attempt to sign a third client by contacting them before Langley could contact them, but averred that “the harm to Insgroup posed by Mr. Langley is imminent.”

In its second amended petition, Insgroup sought injunctive relief pursuant to the Texas Uniform Trade Secrets Act (TUTSA). See Tex. Civ. Prac. & Rem. Code Ann. § 134A.003. Insgroup did not present evidence to the trial court as to how the trial court’s order denying the temporary injunction ran afoul of the TUTSA. The trial court denied Insgroup’s application for temporary injunction and Insgroup appealed. Insgroup’s appeal is the subject of another appeal pending in this court. See Insgroup v. Langley and Alliant Ins. Servs., No. 14-18-01071-CV.

Langley and Alliant subsequently moved to dismiss Insgroup’s suit under the TCPA. Insgroup filed a response and asserted three independent reasons for denying the motion to dismiss. First, Insgroup argued that the TCPA was preempted by the Texas Covenant Not to Compete Act. Second, Insgroup argued that its legal action fell within the ambit of the TCPA’s commercial speech exemption. And third, Insgroup argued that the pleadings and evidence established a prima facie case for every essential element of its causes of action.

Without stating its reasons, the trial court signed an order denying Langley and Alliant’s motion. Langley and Alliant now challenge that ruling in this interlocutory appeal.

ANALYSIS

A. Standard of Review and Governing Law

We consider whether the trial court properly refused to dismiss Insgroup’s suit under the TCPA, which is codified in Chapter 27 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code § 27.011(a).

*3 To further its stated goals, the TCPA establishes a mechanism for summary dismissal of lawsuits that unacceptably threaten the rights of free speech, the right to petition, or the right of association. See Deaver v. Desai, 483 S.W.3d 668, 675-76 (Tex. App.—Houston [14th Dist.] 2015, no pet.).

Regardless of any such defenses, a nonmovant can avoid dismissal by establishing that its legal action is exempt from the TCPA under a specific statutory exemption. Dallas Morning News, Inc. v. Hall, 579 S.W.3d 370, 377 (Tex. 2019).

In the trial court, Langley and Alliant were the TCPA movants, and they argued that Insgroup’s legal action was a retaliatory suit based on their exercise of the right of association. For the sake of argument, we assume without deciding that Langley and Alliant were correct and that they satisfied their initial burden. The question then becomes whether Insgroup satisfied its burden as the nonmovant.

B. Commercial Speech Exemption of the TCPA

Attacking the TCPA motion on multiple fronts, Insgroup argued that it established a prima facie case for its legal action, that its legal action was exempt under the TCPA’s commercial speech exemption, and that the TCPA was preempted by another statute. We need only address the commercial speech exemption because it is dispositive. See Hieber v. Percheron Holdings, LLC, 591 S.W.3d 208, 213 (Tex. App.—Houston [14th Dist.] 2019, pet. denied).

Langley and Alliant argue that the commercial speech exception only applies to their claims for tortious interference, not their other causes of action. For this proposition they cite this court’s opinion in Hieber, 591 S.W.3d at 213. Langley and Alliant further argue that Insgroup did not assert in the trial court that the commercial speech exemption applied to claims other than its claims of tortious interference. To the contrary, in Insgroup’s response to the motion to dismiss filed in the trial court Insgroup focused on Langley and Alliant’s conduct rather than its individual claims: “Insgroup has shown that Langley’s (and Alliant’s) conduct falls within the commercial speech exemption to the TCPA, and therefore the TCPA is inapplicable.”

*4 The commercial speech exemption provides that the TCPA “does not apply to a legal action brought against a person primarily engaged in the business of selling or leasing goods or services, if the statement or conduct arises out of the sale or lease of goods, services, or an insurance product, insurance services, or a commercial transaction in which the intended audience is an actual or potential buyer or customer.” See Tex. Civ. Prac. & Rem. Code § 27.010(b).

To establish this exemption, the nonmovant must prove each of the following elements: (1) the movant was primarily engaged in the business of selling or leasing goods, services, or an insurance product or services; (2) the movant made the statement or engaged in the conduct on which the claim is based in the movant’s capacity as a seller or lessor of those goods, services, or insurance product or services; (3) the statement or conduct at issue arose out of a commercial transaction involving the kind of goods, services, or insurance product the movant provides; and (4) the intended audience of the statement or conduct was an actual or potential customer of the movant for the kind of goods, services, or insurance product the movant provides. See Castleman v. Internet Money Ltd., 546 S.W.3d 684, 688 (Tex. 2018) (per curiam).

The nonmovant must prove these elements by a preponderance of the evidence. See Brugger v. Swinford, No. 14-16-00069-CV, 2016 WL 4444036, at *2 (Tex. App.—Houston [14th Dist.] Aug. 23, 2016, no pet.) (mem. op.).

Beginning with the first element—whether Langley and Alliant were primarily engaged in the business of selling goods, services, or insurance products or services—Insgroup produced evidence about Langley’s professional responsibilities at his former job and his actions at his current job. Insgroup and Alliant are firms engaged in the business of selling insurance. In its pleadings, Insgroup averred that Langley was hired as a producer “to solicit potential clients, consult with them regarding their insurance coverage, locate coverage for them, and negotiate with insurance providers on their behalf[.]” Insgroup further pleaded that Langley continued to sell insurance when he joined Alliant. Specifically, Insgroup alleged, “Langley, through the prodding by Alliant, contacted the confidential contact for Apache Services in person, asking Insgroup’s client contact at Apache Services to sign a Broker of Record letter appointing Alliant its exclusive insurance broker with respect to its property and casualty insurance programs.”

In addition to its pleadings, Insgroup relied on affidavits from Charlene Ulmer and William Covington. Ulmer and Covington attested that Langley met with three of Insgroup’s clients on its Restricted Accounts list and succeeded in obtaining at least one of those clients for Alliant. When combined with the pleadings, this evidence is more than sufficient to establish that Langley and Alliant were primarily engaged in the business of selling insurance products or services.

*5 For the second element, Insgroup was required to show that its claim was based on either a statement that Langley made in his capacity as a seller of insurance products or services, or on conduct in which he engaged as a seller of those services. The pleadings and attached affidavits establish both bases. Insgroup’s pleadings allege that Langley used its Restricted Accounts list to solicit Insgroup’s clients on behalf of Alliant. The affidavits aver that Langley solicited potential customers for Alliant from Insgroup’s Restricted Accounts list.

For the third element, Insgroup was required to show that the statement or conduct at issue arose out of a commercial transaction involving the kind of services Langley and Alliant provide. Each of Insgroup’s causes of action arose out of a commercial transaction that Langley and Insgroup provide, i.e., sale of insurance products and services. See Callison v. C & C Personnel, LLC, No. 09-19-00014-CV, 2019 WL 3022548, at *6 (Tex. App.—Beaumont July 11, 2019, pet. filed) (mem. op.) (“Utilizing confidential or proprietary information from a previous employer while working for a new employer to target and secure the same customers satisfies this element.”).

For the fourth element, Insgroup was required to show that the intended audience of Langley and Alliant’s conduct was an actual or potential customer for the kind of services that Insgroup provides. Again, Insgroup established through its pleadings and evidence that, since joining Alliant, Langley has targeted at least three of Insgroup’s existing customers as potential customers for Langley and Alliant.

Langley and Alliant assert in their brief that Insgroup’s breach of fiduciary duty, breach of contract, and misappropriation of trade secrets claims are not based on conduct or statements with an intended audience of Langley and Alliant’s actual or potential customers. This assertion is contrary to the pleadings and evidence that were before the trial court. Insgroup’s causes of action are based on Langley’s conduct and statements in allegedly competing with Insgroup in violation of the non-compete clause in Langley’s contract. By pleading a breach of the non-compete provision and Langley’s fiduciary duties that accompany that provision Insgroup has established that the intended audience of Langley and Alliant’s conduct was an actual or potential customer for the kind of services Insgroup provides. The evidence attached to Insgroup’s pleadings establishes that the intended audience of Langley and Alliant’s statements and conduct was potential customers for their insurance products; therefore, Insgroup has shown that Langley’s (and Alliant’s) complained of conduct falls within the commercial speech exemption to the TCPA.

Viewing the evidence in the light most favorable to Insgroup, we conclude the evidence establishes by a preponderance of the evidence that Insgroup’s legal action is exempt under the TCPA’s commercial speech exemption. Because this conclusion fully supports the trial court’s ruling, we need not consider the parties’ remaining arguments. See Tex. R. App. P. 47.1.

CONCLUSION

The trial court’s order denying the motion to dismiss is affirmed.

Footnotes

1

The Legislature recently amended the TCPA. Those amendments became effective September 1, 2019. In this opinion, all citations to the TCPA refer to the pre-amendment version that was in effect at the time Insgroup filed its suit.

Top