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Court of Appeals of Texas, Fort Worth.

EMILIANO MEDRANO, Appellant

v.

KERRY INGREDIENTS & FLAVOURS, INC., Appellee

No. 02-20-00247-CV

|

Delivered: April 8, 2021

On Appeal from the 67th District Court

Tarrant County, Texas

Trial Court No. 067-309764-19

Before Birdwell, Bassel, and Womack, JJ.

Memorandum Opinion by Justice Birdwell

MEMORANDUM OPINION

Wade Birdwell Justice

Appellant Emiliano Medrano appeals the dismissal of his personal injury claims. We reverse and remand.

Medrano had been working for appellee Kerry Ingredients & Flavours, Inc. for four months when his supervisor asked him to work the conveyor belt for the first time.1 Medrano alleged that he was not trained to operate the belt or provided with safety gear. According to Medrano, Kerry was aware “that the conveyor belt consistently had mishaps that only trained operators would know about.” Unfortunately, Medrano fell victim to such a mishap: his hand became caught in the conveyor. He was taken to the hospital, but doctors could not save his ring finger.

Medrano sued Kerry on various tort theories, including negligence and gross negligence. Kerry filed an answer and a plea to the jurisdiction, asserting that Medrano’s injury in the course and scope of his employment was barred by the Texas Workers’ Compensation Act’s (the Act’s) exclusive-remedy provision. The trial court granted the plea to the jurisdiction and dismissed Medrano’s suit without prejudice.2 Medrano appeals.

In its brief, Kerry urges us to affirm on the basis that the Division of Workers’ Compensation has exclusive jurisdiction over Medrano’s suit. Kerry reasons that this is so because the exclusive-remedy defense bars Medrano’s suit.

Medrano agrees with Kerry that if the exclusive-remedy defense applies, the Division has exclusive jurisdiction over this suit. He differs with Kerry only in that he urges us to apply an exception to the exclusive-remedy defense.

But Kerry and Medrano have woven together two concepts—exclusive jurisdiction and the exclusive-remedy defense—that are not the same and should not be confused. In confusing the two, they are both incorrect on an essential point of law that is necessary to dispose of this appeal, and we are not bound by their mutual mistake: “the parties to a suit cannot concede a question of law necessary to the proper disposition of a point on appeal.” Jackson Hotel Corp. v. Wichita Cty. Appraisal Dist., 980 S.W.2d 879, 881 n.3 (Tex. App.—Fort Worth 1998, no pet.).3 We therefore begin by unweaving the two.

First, there is the Division’s exclusive jurisdiction. Under the exclusive-jurisdiction doctrine, the Legislature grants an administrative agency the sole authority to make an initial determination in a dispute. Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex. 2002) (op. on reh’g). The Act vests the Division with exclusive jurisdiction to determine the ultimate question of whether the claimant is entitled to workers’ compensation benefits. Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 804 (Tex. 2001). This suit does not seek workers’ compensation benefits, though, and as it strikes us, the only apparent way that Medrano’s personal injury suit would potentially fall within the Division’s exclusive jurisdiction would be under Fodge. See id. The Fodge court held that because a claim for bad-faith denial of benefits depends upon the ultimate question of whether the claimant was entitled to benefits in the first place, the bad-faith issue was also subject to the Division’s exclusive jurisdiction over compensability determinations. Id.

But for two reasons, we conclude that the Division does not have exclusive jurisdiction over Medrano’s suit under Fodge. First, “the determination of whether any type of claim is within the exclusive jurisdiction of the Division depends on whether the claim is based on a claimant’s entitlement to benefits,” like the claim for bad-faith denial of benefits in Fodge depended on eligibility for those benefits. See Berry Contracting, L.P. v. Mann, 549 S.W.3d 314, 320 (Tex. App.—Corpus Christi–Edinburg 2018, pet. denied) (cleaned up) (quoting Bestor v. Serv. Lloyds Ins. Co., 276 S.W.3d 549, 553 (Tex. App.—Waco 2008, no pet.)); Pickett v. Tex. Mut. Ins. Co., 239 S.W.3d 826, 835 (Tex. App.—Austin 2007, no pet.). Medrano’s personal injury suit touches on many of the same questions that would be posed in a Division proceeding to determine whether a claimant was entitled to compensation, but the merits of his suit do not hinge on whether he is ultimately eligible for workers’ compensation benefits. See Berry Contracting, 549 S.W.3d at 320; Tex. Mut. Ins. Co. v. Sonic Sys. Int’l, Inc., 214 S.W.3d 469, 481 (Tex. App.—Houston [14th Dist.] 2006, pet. denied) (combined appeal & orig. proceeding). There is no aspect of the personal injury suit that requires Medrano to ultimately be eligible for workers’ compensation benefits in order to prevail, unlike the claim for bad-faith denial of benefits in Fodge; just the opposite, if Medrano’s injury is eligible for workers’ compensation benefits, the exclusive-remedy defense would likely bar Medrano’s suit. See Berry Contracting, 549 S.W.3d at 321 (citing Walls Reg’l Hosp. v. Bomar, 9 S.W.3d 805, 806 (Tex. 1999) (per curiam)). Accordingly, Medrano’s claim is not “based on” his entitlement to benefits, which suggests that his suit is not subject to the Division’s exclusive jurisdiction. See id.

Second, the main subject of this appeal is the exclusive-remedy defense. That fact also supports the notion that the Division does not have exclusive jurisdiction over Medrano’s suit: “the Division’s exclusive jurisdiction ‘does not extend to all cases that touch on workers’ compensation issues. The district courts decide disputes about whether the Act’s exclusive remedy provision applies as a defense to an injured worker’s personal injury suit.’ ” Id. (quoting AMS Constr. Co. v. K.H.K. Scaffolding Hous., Inc., 357 S.W.3d 30, 38 (Tex. App.—Houston [1st Dist.] 2011, pet. dism’d)). “That is, the main subject of this appeal is an issue which falls within the jurisdiction of the district court, not the Division.” Id. We therefore reject the position that this case falls within the Division’s exclusive jurisdiction.4

Instead, we presume that the district court had jurisdiction. A Texas district court is a court of general jurisdiction. Dubai Petro. Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000) (op. on reh’g). For courts of general jurisdiction, the presumption is that they have subject matter jurisdiction unless a showing can be made to the contrary. Id. No party has made a contrary showing here, and thus the trial court had no basis to dismiss for want of jurisdiction.

Separate from the concept of exclusive jurisdiction, there is the exclusive-remedy defense. The Act provides that recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance against the employer for a work-related injury sustained by the employee. Tex. Lab. Code Ann. § 408.001(a); Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007); Little v. Delta Steel, Inc., 409 S.W.3d 704, 710 (Tex. App.—Fort Worth 2013, no pet.). We have consistently recognized that the Act’s exclusive-remedy provision gives rise to an affirmative defense that is fit for a motion for summary judgment. See, e.g., Robinson v. Cox, No. 02-19-00370-CV, 2020 WL 7063289, at *1–2 (Tex. App.—Fort Worth Dec. 3, 2020, no pet.) (mem. op.); Calhoun v. F. Hall Mowing Co., No. 02-09-00459-CV, 2011 WL 167231, at *4 (Tex. App.—Fort Worth Jan. 13, 2011, no pet.) (mem. op.); Downs v. Triad Denton Hosp., L.P., No. 2-05-303-CV, 2006 WL 820408, at *1 (Tex. App.—Fort Worth Mar. 30, 2006, no pet.) (mem. op.). As an “affirmative defense or ‘plea in bar,’ ” it “operates to prohibit the assertion of a cause of action and involves the final disposition of a case.” Tex. Underground, Inc. v. Tex. Workforce Comm’n, 335 S.W.3d 670, 675 (Tex. App.—Dallas 2011, no pet.). Affirmative defenses are typically not disposed of with a motion to dismiss such as a plea to the jurisdiction; they should instead “be raised through a motion for summary judgment or proven at trial.” Id. at 675–76; see, e.g., State v. Lueck, 290 S.W.3d 876, 880 (Tex. 2009); Schmitz v. Denton Cty. Cowboy Church, 550 S.W.3d 342, 361 n.22 (Tex. App.—Fort Worth 2018, pet. denied) (mem. op. on reh’g). Thus, pursuing the exclusive-remedy defense through a plea to the jurisdiction “is problematic and not to be encouraged.” Robles v. Mount Franklin Food, L.L.C., 591 S.W.3d 158, 163 (Tex. App.—El Paso 2019, pet. denied) (quoting Briggs v. Toyota Mfg. of Tex., 337 S.W.3d 275, 281 (Tex. App.—San Antonio 2010, no pet.)).

Beyond the question of whether the Division has exclusive jurisdiction, then, Medrano’s appeal poses another set of questions that concern the merits: whether the exclusive-remedy defense applies to his case and, if so, whether Medrano qualifies for the intentional-injury exception to that defense.

However, those questions come to us in a strange posture—namely, through a dismissal without prejudice following a plea to the jurisdiction rather than a summary-judgment motion. When other courts have faced roughly analogous situations wherein the defendant has improperly used a motion to dismiss to obtain a dismissal with prejudice based on the exclusive-remedy defense, the courts have treated the resulting dismissal as though it were a summary judgment. See id. at 163–64; Briggs, 337 S.W.3d at 281. They went on to evaluate the evidence in order to determine whether the parties’ arguments regarding the exclusive-remedy defense had merit. See Robles, 591 S.W.3d at 166–68; Briggs, 337 S.W.3d at 283–85.

This practice is consistent with the general rule that even if “summary judgment procedure is not utilized when a plea in bar is asserted, the reviewing court may treat a pretrial dismissal with prejudice as a summary judgment because such dismissal has the same effect as entry of a take-nothing judgment.” In re K.M.T., 415 S.W.3d 573, 576 (Tex. App.—Texarkana 2013, no pet.) (quoting Martin v. Dosohs I, Ltd., Inc., 2 S.W.3d 350, 354–55 (Tex. App.—San Antonio 1999, pet. denied)). “In such case, the reviewing court will review the record as if summary judgment was granted to determine whether the movant satisfied the notice requirements and his burden of proof under Texas Rule of Civil Procedure 166a.” Id. (quoting Martin, 2 S.W.3d at 355).

Here, however, two circumstances preclude us from upholding the trial court’s dismissal on the merits through a summary-judgment review. First, the dismissal was without prejudice, which is not tantamount to a summary judgment. “A dismissal with prejudice is an adjudication of the parties’ rights; a dismissal without prejudice is not.” CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 461 S.W.3d 627, 630 (Tex. App.—Fort Worth 2015, pet. denied).

Second, unlike Robles and Briggs, neither party has submitted any evidence regarding the exclusive-remedy defense or an exception to that defense, such that the case would be suitable for summary-judgment-style analysis. Without any evidence, we are unable to meaningfully evaluate the merits of the parties’ arguments with respect to the exclusive-remedy defense.5

Lacking any order or evidence that would fit the summary-judgment framework, “we feel justified in not ruling upon” the merits of whether summary judgment on the exclusive-remedy defense would have been proper, “particularly since it was not substantially developed in the trial court.” See Kelley v. Bluff Creek Oil Co., 309 S.W.2d 208, 215 (Tex. 1958) (declining to rule on the merits of a plea in bar); Tex. Underground, 335 S.W.3d at 676 (concluding that a dismissal could not be upheld as a summary judgment in the absence of proper summary-judgment evidence and procedure); Walker v. Sharpe, 807 S.W.2d 442, 447 (Tex. App.—Corpus Christi–Edinburg 1991, no writ) (similar); Piper v. Thompson’s Estate, 546 S.W.2d 341, 343–44 (Tex. App.—Dallas 1976, no writ) (reversing dismissal order because without adequate notice or any evidence to support the plea under the summary-judgment rule, the order “could not be justified” through summary-judgment review). It is enough to hold that the trial court had no basis to grant a plea to the jurisdiction concerning an affirmative defense that, under these circumstances, has nothing to do with jurisdiction. We sustain Medrano’s sole issue.

Accordingly, we reverse the trial court’s judgment and remand the matter for further proceedings consistent with this opinion.

Footnotes

1

We draw these facts from Medrano’s live petition.

2

The order did not state whether the dismissal was with or without prejudice. “Where an order does not state that the case is dismissed with prejudice, it is presumed that the dismissal is without prejudice.” FAI Eng’rs, Inc. v. Logan, No. 02-20-00255-CV, 2020 WL 7252315, at *2 n.1 (Tex. App.—Fort Worth Dec. 10, 2020, no pet.) (mem. op.) (quoting In re Hughes, 770 S.W.2d 635, 637 (Tex. App.—Houston [1st Dist.] 1989, no writ)).

3

See also Avasthi & Assocs., Inc. v. Banik, 343 S.W.3d 260, 266–68 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (Frost, J., dissenting) (collecting cases and laying out a compelling argument as to why parties’ concessions concerning the governing law do not bind an appellate court).

4

For the same reason, we reject Kerry’s argument that Medrano’s suit is faulty because he failed to exhaust his administrative remedies. “Typically, if an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency’s action.” See Subaru, 84 S.W.3d at 221. A party is not required to exhaust administrative remedies when the legislature has not vested exclusive jurisdiction in an agency to make an initial determination in a dispute. Harris Cty. Fresh Water Supply Dist. No. 61 v. FWO Dev., Ltd., 396 S.W.3d 639, 647 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); see Cash Am. Int’l Inc. v. Bennett, 35 S.W.3d 12, 15–18 (Tex. 2000) (concluding that because an agency did not have exclusive jurisdiction, the plaintiff “was not required to exhaust her remedies under the Act before filing suit”); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 207–08 (Tex. 2002) (op. on reh’g) (same).

5

Nor could the trial court’s order be upheld as a summary judgment on the pleadings. See Liberty Mut. Ins. Co. v. City of Fort Worth, 524 S.W.2d 743, 746 (Tex. App.—Fort Worth 1975, writ dism’d w.o.j.). A plaintiff may plead itself out of court by alleging facts that affirmatively negate its cause of action. Slaven v. Livingston, No. 02-17-00266-CV, 2019 WL 983693, at *5 (Tex. App.—Fort Worth Feb. 28, 2019, no pet.) (mem. op.). “In general, it is improper to grant summary judgment on a deficient pleading’s failure to state a cause of action when the deficiency can be attacked through a special exception.” Id. “But a pleading-deficiency summary judgment may be proper if a party has had an opportunity by special exception to amend and fails to do so or if it files an additional defective pleading.” Slaven, 2019 WL 983693, at *5; see Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). “If a pleading deficiency cannot be cured by an amendment, summary judgment may also be proper.” Slaven, 2019 WL 983693, at *5. Here, Medrano’s live petition does not allege facts that negate his cause of action, no special exceptions appear in the record, and the petition does not contain any internal pleading defects that are incurable.

Court of Appeals of Texas, Fort Worth.

ANTHONY JAMES FLOYD, Appellant

v.

GATEWAY MORTGAGE GROUP, Appellee

No. 02-19-00356-CV

|

Delivered: March 11, 2021

On Appeal from County Court at Law No. 1

Tarrant County, Texas

Trial Court No. 2019-005816-1

Before Kerr, Birdwell, and Bassel, JJ.

Memorandum Opinion by Justice Kerr

MEMORANDUM OPINION

Elizabeth Kerr Justice

Anthony James Floyd sued Gateway Mortgage Group in Tarrant County Court at Law No. 1 to stop Gateway from foreclosing on his home. Gateway moved to dismiss the case, arguing that because the case’s amount in controversy exceeded the general amount-in-controversy limitations for statutory county courts, Tarrant County Court at Law No. 1 lacked subject-matter jurisdiction over the case. The court agreed and dismissed the case. Because this conclusion was incorrect, we will reverse the trial court’s judgment and remand the case to the trial court.

Background

In November 2014, Floyd and his wife signed a deed of trust granting a lien on their home in favor of Gateway to secure a $280,819 promissory note. After the Floyds defaulted and failed to cure, Gateway accelerated the debt and noticed the property for a nonjudicial foreclosure sale that was scheduled to occur between noon and 3:00 p.m. on August 6, 2019.

The morning of the sale, Floyd sued Gateway alleging that it (1) had failed to provide him with a breakdown of the fees it alleged were due; (2) had not provided him with a default notice before foreclosure; (3) had misapplied payments; and (4) had not followed “all required steps in the foreclosure process under Texas state law.” Floyd further alleged that Gateway had violated the Fair Debt Collection Practices Act, Texas consumer laws, and the Real Estate Settlement Procedures Act. Floyd prayed for delivery of “requested documents,” a temporary restraining order, preliminary injunctive relief, and monetary relief “as allowed by [t]he FDCPA and Texas Consumer Law.”

With his original petition, Floyd filed an application for a TRO and a temporary injunction. In his application, Floyd re-alleged that Gateway had violated various statutes and claimed that Gateway was attempting to wrongfully foreclose on his residence. Around 11:30 a.m. on the day of the foreclosure sale, the trial court granted Floyd’s TRO application and ordered Gateway to “cease all collection activity against [Floyd]” and “cease all foreclosure sale proceedings against [Floyd].” Despite the TRO, the foreclosure sale went forward, with Gateway purchasing the property at the foreclosure sale for about $300,000.1

Just over a week after the sale, Gateway moved (1) to dissolve the TRO; (2) to dismiss Floyd’s petition for lack of subject-matter jurisdiction or, alternatively, because it had no basis in law or fact; and (3) for sanctions. See Tex. R. Civ. P. 13, 91a. Gateway asserted that the trial court lacked jurisdiction because the amount in controversy exceeded the $200,000 jurisdictional limit for statutory county courts. See Act of June 29, 2011, 82d Leg., 1st C.S., ch. 3, § 4.02, sec. 25.0003(c), 2011 Tex. Gen. Laws 5206, 5211–12 (amended 2019) (current version at Tex. Gov’t Code Ann. § 25.0003(c)) (providing that statutory county courts have concurrent jurisdiction with district courts in civil cases in which the matter in controversy “exceeds $500 but does not exceed $200,000, excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs, as alleged on the face of the petition”).2 Gateway supported its motion with evidence establishing the note’s principal amount and the foreclosure-sale price.

After a hearing, the trial court found that “[t]he matter in controversy exceeds the jurisdictional limits of th[e] Court,” and on that basis, dissolved the TRO, granted Gateway’s dismissal motion, and dismissed the case with prejudice.

Floyd has appealed and raises three issues: (1) the trial court heard Gateway’s Rule 91a motion less than 21 days after it was filed; (2) at the hearing, Floyd was not allowed to present evidence or to speak, “[o]ther than to say that he didn’t agree with having the hearing at that time”; and (3) Gateway violated the TRO by foreclosing on the property.3

The Trial Court’s Subject-Matter Jurisdiction

In the trial court, Gateway asserted that the trial court lacked jurisdiction because the amount in controversy exceeded that court’s $200,000 jurisdictional limit. The trial court agreed and thus dismissed the case for lack of jurisdiction. Although Floyd does not expressly challenge this ruling on appeal, we must sua sponte address the issue of whether the trial court has subject-matter jurisdiction over the case because our jurisdiction over a case’s merits is no greater than that of the court from which the appeal was taken.4 See DeWolf v. Kohler, 452 S.W.3d 373, 382 (Tex. App.— Houston [14th Dist.] 2014, no pet.) (“A court is obliged to determine whether it has subject-matter jurisdiction and must consider the question sua sponte even if it is not challenged by a party.”); In re A.K.A., No. 05-13-00640-CV, 2014 WL 3845776, at *2 (Tex. App.—Dallas Aug. 6, 2014, pet. denied) (mem. op.) (“An appellate court’s jurisdiction over the merits of a case extends no further than that of the trial court from which the appeal is taken.”); see also Pearson v. State, 315 S.W.2d 935, 938 (Tex. 1958) (“It is well settled that the jurisdiction of the appellate court as to the merits of a case extends no further than that of the court from which the appeal is taken.”).

If a trial court does not have subject-matter jurisdiction, it cannot decide a case’s merits. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Whether a trial court has subject-matter jurisdiction is a legal question that we review de novo. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (op. on reh’g).

As the plaintiff, Floyd had the burden to affirmatively demonstrate the trial court’s jurisdiction. See Heckman v. Williamson Cty., 369 S.W.3d 137, 150 (Tex. 2012). When assessing a jurisdictional plea, our analysis begins with the live pleadings. Id. We construe the pleadings liberally in the plaintiff’s favor, accept all factual allegations as true, and look to the plaintiff’s intent. Id. We may also consider evidence submitted to negate the existence of jurisdiction, and we must consider such evidence when necessary to resolve the jurisdictional issue. Id.

County courts at law are courts of limited jurisdiction. United Servs. Auto. Ass’n v. Brite, 215 S.W.3d 400, 401 (Tex. 2007). Tarrant County has three statutory county courts. See Tex. Gov’t Code Ann. § 25.2221(a). Their jurisdiction is prescribed by Texas Government Code Sections 25.0003 and 25.2222. See id. §§ 25.0003, .2222. Section 25.0003 contains a general jurisdictional grant and provides, in part, that a statutory county court has “jurisdiction over all causes and proceedings, civil and criminal, original and appellate, prescribed by law for county courts.” Id. § 25.0003(a). Under this section, a statutory county court exercising concurrent jurisdiction “with the constitutional jurisdiction of the county court has concurrent jurisdiction with the district court” in (1) “civil cases in which the matter in controversy exceeds $500 but does not exceed $200,000 excluding interest, statutory or punitive damages and penalties, and attorney’s fees and costs, as alleged on the face of the petition”; and (2) “appeals of final rulings and decisions of the division of workers’ compensation of the Texas Department of Insurance regarding workers’ compensation claims, regardless of the amount in controversy.” Act of June 29, 2011, 82d Leg., 1st C.S., ch. 3, § 4.02, sec. 25.0003(c), 2011 Tex. Gen. Laws 5206, 5211–12 (amended 2019). But Tarrant County statutory county courts’ concurrent jurisdiction is not so limited. Section 25.2222’s specific jurisdictional grant to Tarrant County courts at law is more expansive, providing that they have concurrent jurisdiction with district courts in

(1) civil cases in which the matter in controversy exceeds $500 and does not exceed $200,000, excluding mandatory damages and penalties, attorney’s fees, interest, and costs;

(2) nonjury family law cases and proceedings;

(3) final rulings and decisions of the division of workers’ compensation of the Texas Department of Insurance regarding workers’ compensation claims, regardless of the amount in controversy;

(4) eminent domain proceedings, both statutory and inverse, regardless of the amount in controversy;

(5) suits to decide the issue of title to real or personal property;

(6) suits to recover damages for slander or defamation of character;

(7) suits for the enforcement of a lien on real property;

(8) suits for the forfeiture of a corporate charter;

(9) suits for the trial of the right to property valued at $200 or more that has been levied on under a writ of execution, sequestration, or attachment; and

(10) suits for the recovery of real property.

Tex. Gov’t Code Ann. § 25.2222(b).

Neither Floyd’s pleading nor his TRO application contains a jurisdictional statement or states an amount in controversy. Cf. Tex. R. Civ. P. 47(b), (c). Relying on Section 25.0003(c)(1)’s general jurisdictional grant, Gateway moved to dismiss the case for lack of subject-matter jurisdiction arguing that the trial court lacks subject-matter jurisdiction because the note’s original principal amount (about $280,000) and the property’s foreclosure-sale price (about $300,000) exceeded the $200,000 amount-in-controversy limit for county courts at law. See Act of June 29, 2011, 82d Leg., 1st C.S., ch. 3, § 4.02, sec. 25.0003(c), 2011 Tex. Gen. Laws 5206, 5211–12 (amended 2019). See generally Eris v. Giannakopoulos, 369 S.W.3d 618, 622 (Tex. App.—Houston [1st Dist.] 2012, pet. dism’d) (“Generally, when a suit is for an interest in real property, rather than damages, the value of the property interest at issue determines the amount in controversy.”). But, as noted, Section 25.2222’s specific jurisdictional grant expands the jurisdiction of Tarrant County statutory county courts. See Tex. Gov’t Code Ann. § 25.2222(b). And if a general provision “conflicts with a specific provision for a particular court or county, the specific provision controls.” Id. § 25.0001(a).

Section 25.2222(b)(5) gives Tarrant County courts at law jurisdiction over suits to decide the issue of title to real property. Id. § 25.2222(b)(5). Here, Floyd sued Gateway to stop the imminent foreclosure and pleaded that Gateway had not followed “all required steps in the foreclosure process under Texas state law” and was attempting to wrongfully foreclose on his residence. Construing Floyd’s pleadings liberally in his favor, accepting all factual allegations as true, and looking to Floyd’s intent, Floyd has alleged a wrongful-foreclosure claim against Gateway. See Heckman, 369 S.W.3d at 150. Wrongful foreclosure is an issue related to title to real property. See, e.g., Wells Fargo Bank, N.A. v. Robinson, 391 S.W.3d 590, 593 (Tex. App.—Dallas 2012, no pet.) (explaining that a “foreclosure sale not conducted in accordance with the terms of the deed of trust gives rise to a cause of action to set aside the sale and the resulting trustee’s deed” and that where the noteholder “obtains title to the property at the foreclosure sale and the borrower retains possession, the proper remedy is to set aside the trustee’s deed and to restore the borrower’s title”); Villalon v. Bank One, 176 S.W.3d 66, 71 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (“The landlord-tenant relationship established in the deed of trust provided a basis for the county court to determine that [the bank] had the right to immediate possession without resolving whether [the bank] wrongfully foreclosed on the property, an issue relating directly to who has title to the property.” (emphasis added)). Because this is a suit to decide the issue of title to real property, Tarrant County Court at Law No. 1 has subject-matter jurisdiction over the case because the jurisdiction provided by Section 25.2222(b)(5) is based on the suit’s subject matter, not the amount in controversy. See Tex. Gov’t Code Ann. § 25.2222(b)(5). Accordingly, the trial court erred by dismissing Floyd’s case for lack of subject-matter jurisdiction, and we will thus reverse the trial court’s judgment dismissing the case and remand the case to the trial court. We need not address Floyd’s issues to the extent they are merits based. See Tex. R. App. P. 47.1.

Conclusion

Because we have determined that the trial court does, in fact, have jurisdiction over this case, we reverse the trial court’s judgment and remand the case to the trial court. See Tex. R. App. P. 43.2(d).

Footnotes

1

According to Gateway, it had no actual knowledge of the TRO at the time of the foreclosure sale. Floyd called the substitute trustee’s office shortly after noon on the day of the sale to advise Gateway that he had obtained the TRO. The substitute trustee sold the property at 1:06 p.m. A few minutes later, Floyd emailed and faxed copies of his petition, his TRO application, and the TRO to the substitute trustee’s office.

2

Effective September 1, 2020, the amount-in-controversy limit was increased to $250,000. See Act of May 26, 2019, 86th Leg., R.S., ch. 696, S.B. 2342, §§ 2, 37. This amendment does not apply here because it was not in effect at the time Floyd sued Gateway in August 2019. See id. § 36.

3

Shortly before Floyd filed his brief, Gateway moved to dismiss the appeal. We deny the motion.

4

Whether the trial court had jurisdiction over the merits is an issue that is fairly included in Floyd’s briefing: he complains that the trial court “erred by not allowing evidence to be presented” (because, of course, the trial court cannot consider merits evidence if it has no jurisdiction), and he asks for the dismissal to be reversed and the case remanded for a new trial. See Tex. R. App. P. 38.1(f).

Court of Appeals of Texas, Fort Worth.

JOHN ELLIS, Appellant

v.

DALLAS AREA RAPID TRANSIT, Appellee

No. 02-19-00224-CV

|

Delivered: January 14, 2021

On Appeal from the 48th District Court

Tarrant County, Texas

Trial Court No. 048-280578-15

Before Sudderth, C.J.; Kerr and Wallach, JJ.

Memorandum Opinion by Justice Kerr

MEMORANDUM OPINION

Elizabeth Kerr Justice

*1 In this workers’ compensation case, John Ellis appeals the trial court’s judgment affirming the Texas Department of Insurance’s decision regarding the extent of Ellis’s compensable injury. Ellis argues that the trial court erred by requiring expert medical evidence causally linking his alleged injuries to his on-the-job accident, and he claims that this error resulted in a legally insufficient judgment. We affirm.

I. Background

In May 2014, Ellis was involved in a motor-vehicle accident while driving a bus for Dallas Area Rapid Transit (DART). DART provided workers’ compensation coverage for employees, so Ellis filed a claim with the Texas Department of Insurance’s Division of Workers’ Compensation (TDI).

In the year that followed, Ellis visited more than seven doctors for pain in his neck, shoulder, arm, hand, and wrist. Ellis claimed that the 2014 collision aggravated preexisting injuries to his rotator cuff and wrist, both of which he traced to a prior on-the-job accident in 2013. Although the medical records presented at trial showed that Ellis reported a right-shoulder rotator-cuff tear and a right-wrist ganglion cyst as preexisting conditions, none of the medical records causally linked the aggravation of his shoulder or wrist conditions to the 2014 collision.

A. Medical History

Ellis visited the emergency room the night of his on-the-job accident but was discharged with “no significant acute injuries” other than cervical strain, right-shoulder strain, and right-wrist strain. The following day, Dr. Lawus-Scurry examined Ellis and took x-rays of his shoulder and wrist. The doctor found “no significant acute injuries” diagnosing only a cervical-spine muscle spasm and a sprained or strained neck, elbow, forearm, and shoulder.

Ellis sought a second opinion from Dr. Powell, who concluded that Ellis had shoulder strain, cervical strain, wrist sprain, and trapezius strain. Approximately one month later, Dr. Powell examined Ellis again and found that Ellis had regained full range of motion in his shoulder, wrist, neck, and spine.

Dr. Ford then conducted a peer review of Ellis’s file. In his report, Dr. Ford aggregated and summarized Ellis’s then-current diagnoses: “a cervical strain, a ganglion cyst of the wrist, a shoulder strain, a trapezius strain, a wrist and forearm sprain/strain, multilevel cervical stenosis, shoulder impingement, and a rotator cuff tear.” Dr. Ford noted that MRIs conducted in 2013—before the 2014 collision, obviously—found “a partial tear of the supraspinatus tendon” in Ellis’s right shoulder and “questionable tenosynovitis within the carpal tunnel” in his right wrist. Of Ellis’s diagnoses, Dr. Ford concluded that “the alleged work-related [incident] was a substantial factor in bringing about ...a cervical strain, a shoulder strain, a trapezius strain, and a wrist and forearm strain/sprain” but that the “ganglion cyst, cervical stenosis, and a partial rotator cuff tear with impingement are clearly documented ... as pre[ ]existing conditions which are not a direct result of the original work-related event of May 18, 2014.” Notably, Dr. Ford did not mention a tendinitis diagnosis; Ellis’s medical records did not contain such a diagnosis at the time.

*2 Dr. Powell served as Ellis’s treating doctor and continued seeing Ellis and reviewing his condition every two to four weeks. See Tex. Lab. Code Ann. § 401.011(42) (defining “treating doctor” as “the doctor who is primarily responsible for the employee’s health care for an injury”). Although Ellis’s shoulder and wrist had recovered full range of motion one month after the accident, Dr. Powell later noted new limitations in Ellis’s range of motion. But an MRI of Ellis’s shoulder revealed that his right-shoulder rotator cuff—which was allegedly torn due to a preexisting injury—was fully intact. Moreover, the new range-of-motion limitations in Ellis’s wrist were inconsistent with the 2014 injury. Dr. Powell thus referred Ellis to a specialist for his wrist, but her overall assessment of Ellis’s condition remained unchanged.

The wrist specialist Ellis visited was Dr. Zehr, a hand surgeon. Dr. Zehr diagnosed Ellis with “[t]endinitis right wrist mainly first dorsal compartment” and concluded that the tendinitis—rather than the ganglion cyst—was the primary cause of Ellis’s wrist pain. Dr. Zehr recommended cortisone injections and a thumb splint but noted that surgery was an option if necessary. When Ellis continued to experience pain, Dr. Zehr scheduled Ellis for surgery for the tendinitis. But Ellis canceled the surgery after learning that it would not be covered by workers’ compensation.

TDI then appointed a designated doctor1—Dr. Clenney—to examine Ellis and impartially determine the extent of his compensable injury. Id. § 401.011(10) (defining “compensable injury”). Dr. Clenney noted significant limitations in the range of motion of Ellis’s right wrist and right shoulder “far in excess of that based on the injury and the MRI.” Dr. Clenney identified five potentially compensable conditions: (1) cervical sprain/strain; (2) right shoulder sprain/strain; (3) right wrist sprain/strain; (4) right trapezial strain; and (5) right forearm strain. But Dr. Clenney indicated that Ellis had not yet reached his date of maximum medical improvement (MMI).2

Meanwhile, Ellis visited yet another hand surgeon: Dr. Montejo. Although Dr. Montejo noted many of the same sprains and strains diagnosed by Ellis’s other doctors, he attributed Ellis’s wrist pain to de Quervain’s tenosynovitis and epicondylitis.3 Dr. Montejo did not opine about the cause of these new diagnoses.

TDI then referred Ellis to Dr. Doores for yet another medical opinion.4 Dr. Doores examined Ellis and his medical file, noting Ellis’s preexisting ganglion cyst and rotator-cuff tear as well as Dr. Zehr’s findings and Dr. Montejo’s de Quervain’s tenosynovitis diagnosis. But Ellis’s presentation of his symptoms contradicted many of Dr. Doores’s own observations; for example, Ellis claimed to have cervical-spine range-of-motion limitations but Dr. Doores informally observed Ellis using a greater range of motion than he claimed. Dr. Doores determined that Ellis had only three compensable conditions substantially caused by the 2014 accident: (1) “cervical strain”; (2) “right shoulder strain”; and (3) “right wrist strain.” He opined that Ellis had reached his MMI when he recovered full range of motion in his shoulder, wrist, neck, and spine one month after the injury, stating “[s]ubsequent complaints are inconsistent with the injury and the physiologic response expected following this injury. [Range-of-motion] limitations recorded subsequently have no objective physiologic basis.”

*3 Soon after, Dr. Powell filed a report agreeing with Dr. Doores regarding Ellis’s MMI date. Dr. Powell identified four relevant diagnoses: a neck sprain, wrist pain, medial epicondylitis, and lateral epicondylitis.5 Dr. Powell documented Ellis’s claim that his conditions stemmed from the 2014 on-the-job accident, but Dr. Powell did not herself opine about the cause of those conditions.

Ellis’s medical visits continued into 2015. In January—more than seven months after the accident—Dr. Clenney examined Ellis for a second time and reevaluated his earlier conclusions regarding the extent of Ellis’s injury and his MMI date. As part of the reevaluation, Dr. Clenney reviewed over one hundred relevant documents and medical records, including the clinical findings of the physicians Ellis had visited since his accident. Ultimately, Dr. Clenney concluded that Ellis had only three compensable injuries caused or aggravated by the 2014 collision: (1) “cervical sprain/strain”; (2) “right shoulder sprain/strain”; and (3) “right wrist sprain/strain.” Dr. Clenney also modified his earlier assessment of Ellis’s MMI date and agreed with Dr. Doores and Dr. Powell that Ellis had reached MMI approximately one month after the accident when he regained full range of motion in his shoulder, wrist, neck, and spine.

Undeterred, Ellis sought a diagnosis from another hand surgeon: Dr. Ogunro. Ellis told Dr. Ogunro that he had been diagnosed with and was receiving injections from Dr. Zehr for de Quervain’s tenosynovitis. After examining Ellis, Dr. Ogunro concluded that the primary cause of Ellis’s right-wrist pain was intersection syndrome but noted that Ellis’s ganglion cyst was contributing to his pain as well.6 Like Drs. Montejo and Powell, Dr. Ogunro did not opine about the cause of any of Ellis’s wrist conditions, apart from documenting Ellis’s description of events.

Ultimately, DART agreed to cover three compensable injuries as part of Ellis’s workers’ compensation claim: (1) “cervical sprain/strain”; (2) “right shoulder sprain/strain”; and (3) “right wrist sprain/strain.” This coverage aligned with the compensable injuries identified by Dr. Clenney and Dr. Doores. But Ellis claimed that the 2014 accident also caused or aggravated his right-shoulder rotator-cuff tear and right-wrist tendinitis. The parties could not resolve their dispute informally or through a TDI benefit-review conference. See Tex. Lab. Code Ann. §§ 410.021–34 (discussing benefit-review conference requirements and procedures).

B. TDI Hearing

TDI held a contested hearing to determine, among other things, whether “the compensable injury of May 18, 2014, ... extend[ed] to and include[d] right shoulder partial rotator cuff tear and right wrist tendonitis.” The hearing officer found that the disputed conditions “did not arise out of or naturally flow from the compensable injury, nor were these conditions worsened, enhanced or accelerated by the compensable injury.” The hearing officer explained his rationale:

As for the issue of extent of injury, the cause and existence of the disputed conditions are matters beyond common experience and medical evidence needs to be submitted which establishes the causal connection as a matter of reasonable medical probability....

*4 ....

... This is a case based upon the legal sufficiency of the expert medical evidence. Claimant simply does not have a medical expert explaining how his compensable injury includes the disputed conditions.

A TDI appeals panel reviewed the hearing officer’s decision and allowed it to become final. See id. § 410.204(c).

C. Trial in District Court

Ellis then sought judicial review by filing suit in district court challenging TDI’s decision on all contested issues. See id. §§ 410.301 (providing judicial review of compensability issues, among other issues), 410.302(b) (limiting the issues to those decided by the TDI appeals panel and on which judicial review is sought). Ellis appeared pro se at the bench trial, where he testified about the 2014 collision, his various medical examinations and tests, and his concern that DART had tampered with the bus surveillance-video recordings that captured the accident. Ellis entered four exhibits into evidence,7 but Ellis requested that two of these—a 2013 report from Dr. Ford and a copy of requests for production—be omitted from the appellate record. The record thus contains only two exhibits from Ellis: (1) a partial, unsigned medical record from the Lankford Hand Surgery Association—where Dr. Zehr practiced—indicating the physician’s impression that Ellis had “[t]endinitis right wrist”;8 and (2) DART’s surveillance-video recordings showing portions of the inside of Ellis’s bus at the time of the accident.

*5 DART called no witnesses but offered ten exhibits into evidence, including the TDI hearing officer’s decision, the TDI appeals-panel decision, reports from Drs. Clenney, Doores, and Powell regarding the extent of Ellis’s injury and his MMI date, and Dr. Ford’s peer-review report. DART also entered a copy of the TDI hearing officer’s decision from a separate workers’ compensation case related to Ellis’s 2013 work-related accident. That decision showed that Ellis had unsuccessfully claimed that the 2013 accident caused a right-shoulder rotator-cuff tear and right-wrist tendinitis as well.

DART consistently argued that expert medical evidence causally linking Ellis’s alleged injuries to the 2014 accident was required and that Ellis failed to carry his burden by not presenting such evidence. Ellis disagreed, arguing that the bus surveillance videos showed the cause and extent of his injuries and that inconsistencies within the videos indicated they had been tampered with. The trial court did not state whether it considered expert medical evidence legally necessary to prove causation, and neither party expressly requested a ruling on the issue.

After taking the case under advisement, the trial court issued a judgment in DART’s favor. The judgment provides, in relevant part:

THE COURT HEREBY ORDERS, ADJUDGES, AND DECREES that the compensable injury of May 18, 2014, does not extend to and include right shoulder partial rotator cuff tear and right wrist tendonitis; Claimant did not have disability resulting from a compensable injury sustained on May 18, 2014, from June 20, 2014, to the date of the contested case hearing; Claimant reached maximum medical improvement on June 19, 2014; and Claimant’s impairment rating is 0%, and the Texas Department of Insurance Division of Workers Compensation Decision & Order # FW-l4252313-01-CC-FW48, and Appeals Panel Decision, Appeal #151131, be upheld and affirmed in all respects.

Ellis filed a timely appeal indicating that he “disagree[d] with [the] findings based on the hearing” and “disagree[d] with Judge Weeks being assigned to [the] case.” He did not request findings of fact or conclusions of law. See Tex. R. Civ. P. 296.

II. Discussion

On appeal, Ellis argues that the trial court erroneously required expert medical evidence to prove that his 2014 on-the-job accident was a producing cause of his alleged rotator-cuff tear and tendinitis. Ellis further argues that this error resulted in a legally insufficient judgment.9

A. Expert Testimony

*6 First, Ellis’s claim that the trial court erroneously required expert medical evidence of causation is neither preserved nor dispositive. The record does not indicate that the trial court considered expert medical evidence legally necessary to establish causation. Ellis dedicates a significant portion of his briefing to this issue, but his arguments attack statements from the TDI hearing officer’s decision—not the trial court’s judgment. Although the trial court “upheld and affirmed” TDI’s decision and order “in all respects,” the court did not adopt the hearing officer’s decision as a substitute for its own findings of fact and conclusions of law. See Tex. R. Civ. P. 296, 299a (“Findings of fact shall not be recited in a judgment.”). Indeed, no findings of fact or conclusions of law were requested or filed. See Tex. R. Civ. P. 296, 299a. Consequently, the trial court’s judgment implies all findings necessary to support it. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017) (“When neither party requests findings of fact and conclusions of law following a nonjury trial, all fact findings necessary to support the trial court’s judgment are implied.”); see also In re W.E.R., 669 S.W.2d 716, 716–17 (Tex. 1984) (per curiam). Absent conclusions of law to the contrary, we presume the trial court knew and correctly applied the law to the facts. See Buckeye Ret. Co. v. Bank of Am., 239 S.W.3d 394, 402 (Tex. App.—Dallas 2007, no pet.) (applying rule to presume that trial court knew and correctly applied law regarding spoliation); see also Jackson v. Gould, No. 01-16-00203-CV, 2016 WL 5957214, at *5 (Tex. App.—Houston [1st Dist.] Oct. 13, 2016, no pet.) (mem. op.) (rejecting claim that trial court allegedly applied an abolished legal doctrine because the doctrine was not in the court’s conclusions of law). We thus overrule Ellis’s challenge to the trial court’s alleged error.

Regardless, even if Ellis could show that the trial court erred, he would still need to prevail on his legal-sufficiency challenge to obtain reversal. If a trial court errs in applying the law but nonetheless renders the proper judgment, the error alone does not warrant reversal. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); City of Forest Hill v. Benson, 555 S.W.3d 284, 289 (Tex. App.—Fort Worth 2018, no pet.). Rather, we must affirm the judgment if we can uphold it on any legal theory supported by the record. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766 (Tex. 2011); Liberty Mut. Ins. v. Burk, 295 S.W.3d 771, 777 (Tex. App.—Fort Worth 2009, no pet.). We thus turn to Ellis’s dispositive challenge: that regarding the legal sufficiency of the judgment. See Tex. R. App. P. 47.1.

B. Legal Sufficiency

Ellis challenges the legal sufficiency of the trial court’s finding that “the compensable injury of May 18, 2014, does not extend to and include right shoulder partial rotator cuff tear and right wrist tendonitis.” As the party seeking judicial review of a TDI appeals-panel decision, Ellis had the burden to prove this issue at trial. Tex. Lab. Code Ann. § 410.303; Morales v. Liberty Mut. Ins., 241 S.W.3d 514, 516 (Tex. 2007).

When an appellant attacks the legal sufficiency of an adverse finding on an issue he had the burden to prove, the appellant must demonstrate that (1) there is not more than a scintilla of evidence supporting the adverse finding; and (2) the evidence conclusively establishes all vital facts in support of the issue as a matter of law, leaving “no room for ordinary minds to differ.” Int’l Bus. Mach. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224, 235 (Tex. 2019) (quoting Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982)); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing such a challenge, we begin by examining the record for evidence supporting the trial court’s finding while ignoring all evidence to the contrary. Dow Chem. Co., 46 S.W.3d at 241. If no evidence supports the finding, then we will examine the entire record to determine if the contrary position is established as a matter of law. Id. We will sustain the issue only if the contrary position is conclusively established. Id. But anything more than a scintilla of evidence is legally sufficient to support the trial court’s finding, ending our analysis at step one. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996); Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).

Here, Ellis had to show that his May 2014 collision was a “producing cause” of right-wrist tendonitis and a right-shoulder rotator-cuff tear. See Transcon. Ins. v. Crump, 330 S.W.3d 211, 215–24 (Tex. 2010). An event is a “producing cause” of an injury if it is a substantial factor in bringing about the injury, without which the injury would not have occurred. Id. at 223. In other words, the act “must be ... actually responsible for the ultimate harm”—not merely “one of the countless ubiquitous and insignificant causes that in some remote sense may have contributed to a given effect.” Id. at 224.

*7 The question presented on appeal is thus whether the record contains more than a scintilla of evidence to support the trial court’s finding that Ellis’s 2014 on-the-job accident was not a substantial factor in bringing about his alleged right-wrist tendonitis or right-shoulder rotator-cuff tear, and that these injuries—to the extent they existed—would have occurred without the accident. The record contains far more than a scintilla of evidence supporting this finding.

First, there are omissions in the appellate record that we must presume are legally sufficient to support the judgment. Specifically, Ellis instructed the court reporter to omit from the record two of his exhibits that the trial court had admitted into evidence, along with instructing the court reporter to leave out five other (unadmitted) exhibits. One of the two admitted-but-omitted exhibits was a 2013 pre-accident report from Dr. Ford. Because we “must presume the omitted items supported the trial court’s judgment,” an appellant raising a legal-sufficiency challenge cannot discharge his burden to show that the judgment is erroneous without a complete or agreed record. Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002) (per curiam) (quoting Gallagher v. Fire Ins. Exch., 950 S.W.2d 370, 371 (Tex. 1997) (per curiam)); Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991) (per curiam); Christiansen v. Prezelski, 782 S.W.2d 842, 843–44 (Tex. 1990) (per curiam); see also Pye’s Auto Sales, Inc. v. Gulf States Fin. Co., No. 01-05-00670-CV, 2007 WL 1559933, at *2–3 (Tex. App.—Houston [1st Dist.] May 31, 2007, no pet.) (mem. op. on reh’g) (overruling legal-sufficiency challenge due to appellant’s failure to include trial exhibits in the appellate record); Adams v. Transp. Ins., 845 S.W.2d 323, 326–27 (Tex. App.—Dallas 1992, no writ) (holding that appellant was prevented from presenting factual-sufficiency challenge on appeal where multiple trial exhibits were lost or destroyed). A party may avoid the presumption that omitted portions of the record support the judgment if the appellate record includes (1) the appellant’s request for a partial reporter’s record; and (2) a statement from the appellant limiting the points to be presented on appeal. Tex. R. App. P. 34.6(c); CMM Grain Co. v. Ozgunduz, 991 S.W.2d 437, 439–40 (Tex. App.—Fort Worth 1999, no pet.). The record in this case contains neither. We therefore presume that the omitted exhibits support the trial court’s judgment. This alone is fatal to Ellis’s legal-sufficiency challenge. Bennett, 96 S.W.3d at 229 (recognizing that, absent a statement confining the appeal to specific points or issues in compliance with Rule 34.6, “[t]here is no question that ... Rule 34.6 would require the appellate court to affirm the [legal and factual sufficiency of the] trial court’s judgment”); Schafer, 813 S.W.2d at 155; CMM Grain Co., 991 S.W.2d at 440.

But even without the omitted exhibits, the appellate record contains more than a scintilla of evidence to support the trial court’s challenged finding. Dr. Clenney and Dr. Doores both concluded that Ellis had only three compensable injuries caused or aggravated by the 2014 accident—to the exclusion of Ellis’s other conditions and diagnoses. The doctors’ shared conclusion was consistent with Ellis’s emergency-room records on the night of the accident, consistent with the clinical findings documented by Dr. Lawus-Scurry and Dr. Powell in the days following the accident, and consistent with Dr. Ford’s findings upon peer-review. Dr. Clenney and Dr. Doores further noted that Ellis’s right shoulder and right wrist regained full range of motion roughly a month after the accident, and Ellis’s later diagnoses, complaints, and reported range-of-motion limitations were inconsistent with the injury.

*8 Record evidence also draws into question the existence of Ellis’s rotator-cuff tear and tendinitis. Although Ellis had a partial rotator-cuff tear in his medical history, an MRI taken approximately two months after the accident revealed an intact right-shoulder rotator cuff. And Ellis’s tendinitis diagnosis was one of numerous alternative assessments of his wrist pain. Plus, the tendinitis assessment came two months after the accident while Ellis’s wrist was exhibiting new range-of-motion limitations “inconsistent with the injury.”

The record contains yet another piece of evidence: the TDI appeals-panel decision. The trial court was statutorily required to “consider the decision of the appeals panel” in rendering its judgment, and the decision was admitted into evidence at trial. See Tex. Lab. Code Ann. § 410.304(b). The court was “free to give the appeals-panel decision no weight, some weight, or significant weight, depending on [the court’s] view of the evidence.” Liberty Mut. Ins. v. Camacho, 228 S.W.3d 453, 460 (Tex. App.—Beaumont 2007, pet. denied). The appeals-panel decision itself thus served as evidence in support of the trial court’s causation finding. Burk, 295 S.W.3d at 779 (“Once the trial court took judicial notice of the appeals panel decision, it was evidence in the case that could potentially support the trial court’s judgment.”); see also ESIS, Inc. v. Johnson, 908 S.W.2d 554, 558–61 (Tex. App.—Fort Worth 1995, writ denied) (holding that an appeals-panel decision is admissible as part of the TDI record under Tex. Lab. Code Ann. § 410.306(b)).

Given the presumption arising from Ellis’s omitted exhibits, the medical records entered into evidence at trial, and the appeals-panel decision, more than a scintilla of evidence exists to support the trial court’s finding that Ellis’s 2014 on-the-job accident was not a producing cause of his right-wrist tendinitis or right-shoulder rotator-cuff tear. We overrule Ellis’s legal-sufficiency challenge.

III. Conclusion

Having overruled both of Ellis’s issues, we affirm the trial court’s judgment.

Footnotes

1

A designated doctor is “a doctor appointed by mutual agreement of the parties or by the division to recommend a resolution of a dispute as to the medical condition of an injured employee.” Tex. Lab. Code Ann. § 401.011(15); see also 28 Tex. Admin. Code ch. 127 (2020) (Tex. Dep’t of Ins., Designated Dr. Procedures & Requirements). The employer, the employee, or TDI may order a medical examination by the designated doctor to determine the extent of the employee’s compensable injury, among other issues. See Tex. Lab. Code Ann. § 408.0041(a). TDI gives the designated doctor’s report “presumptive weight unless the preponderance of the evidence is to the contrary.” Id. § 408.0041(e).

2

The date of “maximum medical improvement” in a case not involving spinal surgery is “the earlier of (A) the earliest date after which, based on reasonable medical probability, further material recovery from or lasting improvement to an injury can no longer reasonably be anticipated; [or] (B) the expiration of 104 weeks from the date on which income benefits begin to accrue.” Id. § 401.011(30).

3

Neither Ellis nor DART offered evidence at trial explaining the meaning of “de Quervain’s tenosynovitis” or “epicondylitis.”

4

Dr. Doores conducted the “required medical examination.” See Tex. Lab. Code Ann. § 408.004; 28 Tex. Admin. Code § 126.6 (2020) (Tex. Dep’t of Ins., Required Med. Exam.).

5

Neither Ellis nor DART offered evidence at trial explaining the meaning of “medial epicondylitis” or “lateral epicondylitis.”

6

Neither Ellis nor DART offered evidence at trial explaining what “intersection syndrome” means.

7

The record reflects express rulings admitting only three of Ellis’s exhibits into evidence. But the fourth admitted exhibit—a CD containing DART’s surveillance-video recordings—was presented to the trial court without objection and is included in the reporter’s record. Both DART and Ellis have recognized the CD as an exhibit in their filings with us. The record is thus clear that the CD was implicitly admitted into evidence. See Tex. R. App. P. 33.1(a)(2)(A) (stating trial court may rule on a request expressly or implicitly); Seim v. Allstate Tex. Lloyds, 551 S.W.3d 161, 166 (Tex. 2018) (quoting In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003), and recognizing that “an implicit ruling may be sufficient to preserve an issue for appellate review,” but cautioning that an implied ruling must be “clear” from the record); Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 195 (Tex. App.—Fort Worth 2006, no pet.) (holding that trial court implicitly overruled objections and admitted appellees’ summary judgment evidence by stating in its judgment that it considered such evidence).

Ellis claims—without argument or explanation—that the trial court admitted all nine of his offered exhibits into evidence. But the record reflects clear rulings from the trial court excluding five of them. Regardless, Ellis directed the court reporter to omit his five excluded exhibits from the appellate record.

8

The partial medical record bears what appears to be a yellow sticky note with the words “Dr Zehr Findings.” A longer version of the same document was attached to Ellis’s summary-judgment response and confirms that the exhibit was a record from Dr. Zehr.

9

Ellis also contends that the trial court’s allegedly erroneous causation finding produced three additional erroneous findings regarding (1) the existence of a disability resulting from Ellis’s compensable injury; (2) Ellis’s MMI date; and (3) Ellis’s impairment rating. But Ellis does not explain why, how, or to what degree these findings depended on the trial court’s causation finding. Rather, Ellis merely states in a single sentence of argument that the trial court’s allegedly erroneous causation finding “additionally produced the[se] ancillary findings.” Ellis has waived his challenges to the “ancillary findings” due to inadequate briefing. See Tex. R. App. P. 38.1(i) (“The brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.”); Wise Cnty. v. Mastropiero, No. 02-18-00378-CV, 2019 WL 3755766, at *8 (Tex. App.—Fort Worth Aug. 8, 2019, no pet.) (mem. op.) (holding complaint waived where appellants provided a single-sentence argument with no citations to the record or to legal authority); Martinez v. El Paso Cnty., 218 S.W.3d 841, 844 (Tex. App.—El Paso 2007, pet. struck) (noting that Rule 38.1 “is not satisfied by merely uttering brief conclusory statements, unsupported by legal citations,” and that “[f]ailure to cite legal authority or provide substantive analysis of an issue waives the complaint”).

Regardless, Ellis’s challenges to the “ancillary findings” are premised on the allegedly erroneous nature of the trial court’s causation finding. Because we affirm the trial court’s causation finding, Ellis would not prevail on his dependent challenges to the trial court’s “ancillary findings.”

Court of Appeals of Texas, Fort Worth.

KYRA ROBINSON, Appellant

v.

HEIDI BRUEGEL COX, Appellee

No. 02-19-00370-CV

|

Delivered: December 3, 2020

On Appeal from the 141st District Court

Tarrant County, Texas

Trial Court No. 141-307492-19

Before Sudderth, C.J.; Gabriel and Womack, JJ.

Memorandum Opinion by Chief Justice Sudderth

MEMORANDUM OPINION

Bonnie Sudderth Chief Justice

I. Introduction

*1 Appellant, Kyra Robinson sued her coworker, Appellee Heidi Bruegel Cox seeking to recover damages for bodily injuries sustained when Cox’s border collie, Jackson, bit her at their workplace. In her petition, Robinson claimed that Cox was strictly liable and grossly negligent. In one issue, Robinson challenges the trial court’s granting of Cox’s motion for summary judgment. We affirm.

II. Background

At the time of the incident, both Robinson and Cox worked at the Gladney Center for Adoption in Fort Worth, Texas. Robinson worked as a house parent for the residents of Gladney, and Cox was employed as Gladney’s general counsel and executive vice-president.

After Jackson bit Robinson, Robinson filed for and received workers’ compensation benefits from Gladney’s compensation carrier. And after receiving workers’ compensation benefits, Robinson sued Cox to recover damages for the same injury.

In Cox’s motion for summary judgment, she argued that Robinson’s claim against her was barred by the exclusive-remedy provision of the Texas Workers’ Compensation Act. The trial court granted Cox’s motion and entered a final judgment without specifying the grounds.

III. Discussion

Robinson argues on appeal that her claim against Cox is not barred by the exclusive-remedy provision because Cox’s alleged tortious act of bringing Jackson to Gladney did not occur within the scope of Cox’s employment.1

A. Standard of Review

We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all elements of that defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); see Tex. R. Civ. P. 166a(b), (c). To accomplish this, the defendant must present summary judgment evidence that conclusively establishes each element of the affirmative defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008). Once the defendant meets her burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment on the affirmative defense. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

B. Applicable Law

*2 The Texas Workers’ Compensation Act (“the Act”) compensates an employee who sustains a compensable injury arising out of and in the course and scope of employment for which compensation is payable under the Act. Tex. Lab. Code Ann. § 401.011(10). The Act provides that recovery of workers’ compensation benefits is the “exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” Id. § 408.001(a); see Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007) (“The Texas Workers’ Compensation Act provides exclusive compensation benefits for the work-related injuries of a subscribing employer’s employees.”). Because the remedy provided by the Act is exclusive, an employee has no alternative right of action against his employer, or against an agent or employee of the employer, for injuries sustained in the course and scope of employment. See Tex. Lab. Code Ann. § 408.001(a).2 The filing of a claim for benefits waives an employee’s right to proceed outside the Act. Massey v. Armco Steel Co., 652 S.W.2d 932, 933 (Tex. 1983).

C. Cox’s Summary Judgment Evidence

As evidence in support of her motion, Cox attached the following documents: her sworn affidavit, the sworn affidavit of coworker Jacqueline Teixeira, Robinson’s responses to interrogatories and requests for admissions, Robinson’s original petition, and Robinson’s workers’ compensation records.

In her affidavit, Cox stated that on the day of the incident she was a Gladney employee. According to Cox, she had brought Jackson to work with her that day, and on preceding days, because birth mothers and Gladney employees had requested that she do so. Cox stated that Jackson had assisted with counseling sessions by serving as a comfort dog to Gladney’s clients.

Teixeira’s affidavit averred that on the day in question, she too had been working at Gladney. Teixeira also stated that Cox had brought Jackson to Gladney at the request of residents and staff in order to serve as a comfort dog.

In response to Cox’s interrogatories, Robinson conceded that Gladney’s workers’ compensation insurance had paid for her injury treatment:

INTERROGATORY NO. 21: Please state whether or not you have ever made a claim against any person, entity or insurance company for personal injuries which did not result in the filing of a lawsuit. If so, then please state the name and address of the person, entity or insurance company, the part of the body which you injured, and when such claim was made and the amount of the settlement.

ANSWER: Workers[’] compensation is paying for the medical expenses related to this lawsuit.

Similarly, in response to Cox’s requests for admissions, Robinson responded:

REQUEST FOR ADMISSION NO. 28: Admit or deny that you used your workers[’] compensation insurance for treatment received as a result of the incident made the basis of this lawsuit.

RESPONSE: Admit.

Robinson’s workers’ compensation records reflect that Texas Administrative Law Judge Britt Clark found that Robinson was an employee of Gladney on June 12, 2017, and that Gladney provided workers’ compensation insurance for Robinson’s compensable injuries as a result of the underlying dog bite.

D. Robinson’s Response

Robinson responded by filing an unsworn declaration in which she stated that Cox had served as Gladney’s general counsel and executive vice president. She noted that on the day Jackson bit her, Cox had “dropped Jackson off in the kitchen area of the dormitory” at Gladney, and she explained that “[t]he dormitory side [of Gladney] houses the birth mothers.” Robinson claimed that Cox had brought Jackson to Gladney because he had been chewing her couch at home. According to Robinson, Jackson “did not do therapy work” for Gladney and did not meet with “children in any kind of official role.”

E. Exclusive-Remedy Provision

*3 On appeal, Robinson acknowledges that her receipt of workers’ compensation benefits calls into question the applicability of the Act’s exclusive-remedy provision. However, she contends that the exclusive-remedy provision does not extend to her lawsuit against Cox because Gladney was not legally responsible for Cox’s act of bringing Jackson to its premises. Specifically, Robinson asserts that Cox had not been acting in the course and scope of her employment when she brought Jackson to Gladney. We disagree.

1. Extension of Exclusive-Remedy Provision to Coworkers

Although Section 408.001(a) of the Act extends the exclusive-remedy defense to “an agent or employee of the employer,” the Texas Supreme Court, in addressing the predecessor to Section 408.001, has held that an agent or employee within the meaning of the statute “is ordinarily one for whose conduct the employer would, aside from the [Act], be legally responsible under the doctrine of respondent superior.” McKelvy v. Barber, 381 S.W.2d 59, 62 (Tex. 1964); see also Arnold v. Gonzalez, No. 13-13-00440-CV, 2015 WL 5109757, at *2 (Tex. App.—Corpus Christi–Edinburg Aug. 28, 2015, pet. granted, judgm’t vacated w.r.m.) (mem. op.) (noting exclusive remedy provision only extends to coworkers “for whose conduct the employer is legally responsible under the doctrine of respondeat superior”); Burkett v. Welborn, 42 S.W.3d 282, 288 (Tex. App.—Texarkana 2001, no pet.) (noting “employee of the employer” under Section 408.001(a) “refers to a co-employee for whose conduct the employer is legally responsible under the doctrine of respondeat superior”). In order to impose liability upon an employer for the negligence of an employee under the doctrine of respondeat superior, the negligent act must fall “within the course and scope of [the employee’s] employment.” Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 131 (Tex. 2018); Grogan v. Elite Metal Fabricators, Inc., No. 02-18-00048-CV, 2018 WL 6424216, at *2 (Tex. App.—Fort Worth Dec. 6, 2018, no pet.) (mem. op.).

The Act defines “course and scope of employment” as

... an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations.

Tex. Lab. Code Ann. § 401.011(12). However, an employee or worker need not be engaged in the discharge of any specific, detailed duty to be in the scope of employment under the Act. See Yeldell v. Holiday Hills Ret. & Nursing Ctr. Inc., 701 S.W.2d 243, 245 (Tex. 1985). Moreover, to fall within the scope of an employee’s general authority, it is not essential that the negligent act or omission should have been expressly authorized by the employer so long as it is in “furtherance of the employer’s business and for the accomplishment of the object for which the employee [is employed].” Painter, 561 S.W.3d at 132. Finally, it should be noted that the “Workmen’s Compensation Law should not be hedged about with strict construction, but should be given a liberal construction to carry out its evident purpose.” Southern Surety Co. v. Shook, 44 S.W.2d 425, 427 (Tex. Civ. App.—Eastland 1931, writ ref’d).

2. Application

To successfully establish the exclusive-remedy defense, Cox was required to prove that her bringing Jackson to work on the day Jackson bit Robinson, was “an activity of any kind or character that had to do with and originated in” Gladney’s work, business, trade, or profession and was performed by Cox in furtherance of Gladney’s business. Leordeanu v. Am. Prot. Ins. 330 S.W.3d 239, 243–44 (Tex. 2010), see also Long v. Turner, 871 S.W.2d 220, 224–25 (Tex. App.—El Paso 1993, writ denied) (holding exclusive-remedy defense was conclusively established where summary judgment evidence led to the inescapable conclusion that coworker’s negligent act was within scope of his authority and in furtherance of employer’s business).

*4 Applying the “course and scope” analysis to the facts in this case, and taking as true all evidence favorable to Robinson, resolving all conflicts in the evidence in her favor, and indulging every reasonable inference and resolving all doubts in Robinson’s favor, we consider whether Cox established that her act of bringing Jackson to Gladney met the legal standard for “course and scope of employment,” as that has been defined and interpreted. In doing so, we must determine whether bringing Jackson to Gladney was an activity of any kind or character that had to do with and originated in the work, business, trade, or profession of Gladney and whether the act was performed by Cox in furtherance of Gladney’s business. Robinson did not challenge the following summary judgment evidence:

• Gladney provides dormitory style housing to pregnant women who plan to give up their babies for adoption;

• Gladney provides counseling to the pregnant women;

• Cox dropped Jackson off in Gladney’s dormitory area where the birth mothers reside;

• Birth mothers and other employees at Gladney asked Cox to bring Jackson there to assist as a comfort dog;

• Cox believed that Jackson’s presence helped ease the anxiety of Gladney’s residents; and

• Jackson sometimes sat in the office with employees.

Gladney’s purpose is to provide a home and counseling to pregnant women who plan on giving up their babies for adoption. Because Cox brought Jackson to Gladney at the request of the birth mothers who resided there, Cox’s act in bringing Jackson to Gladney was an activity that had to do with and originated in Gladney’s business. Additionally, Cox believed that Jackson would assist with the residents’ counseling sessions in furtherance of Gladney’s purpose to provide counseling to the pregnant women. Accordingly, the summary judgment evidence establishes that Cox’s action in bringing Jackson to Gladney was an activity that “had to do with” and “originated” in Gladney’s business and was also an activity “performed” by Cox in “furtherance” of Gladney’s business. See Yeldell, 701 S.W.2d at 245 (holding employee in course of his employment may perform acts incidental to employee’s service and injuries sustained while doing so arise in course and scope of employment); Surety, 44 S.W.2d at 427 (holding if terms of contract of employment requires workman to sleep on premises of employer, he is performing services having to do with and originating in business of employer while he is on premises, even when off active duty). Therefore, because Cox presented summary judgment evidence that conclusively established her affirmative defense, the burden shifted to Robinson to raise a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc., 899 S.W.2d at 197.

Robinson’s statements that Jackson “did not do therapy work for Gladney” or “meet children in any kind of official role,” does not suffice to raise a fact issue about whether Cox was acting in the course and scope of her employment when she brought Jackson to Gladney that day. Robinson does not dispute Cox’s and Teixeira’s statements that birth mothers and other Gladney employees had asked Cox to bring Jackson to Gladney to assist as a comfort dog. Moreover, even if Cox had brought Jackson to Gladney because “he was chewing up her couch at home,” that fact does not negate Cox’s statement that the birth mothers and other Gladney employees had asked her to bring Jackson to Gladney to assist as a comfort dog. And finally, although Jackson may not have been assigned an “official role” at Gladney, Robinson does not contradict Cox’s statement that she believed Jackson would assist the residents as a comfort dog.

Because Cox’s proof conclusively established that she was within the course and scope of her employment at the time Robinson was injured, and Robinson’s summary judgment evidence did not raise a fact issue on this point, we hold that Cox established as a matter of law that she was a Gladney employee for purposes of the exclusive remedy defense. Accordingly, we overrule Robinson’s sole issue.

VI. Conclusion

*5 Having overruled Robinson’s sole issue, we affirm the trial court’s judgment.

Footnotes

1

Robinson’s complaint on appeal is limited to whether she raised a fact issue regarding Cox acting in the course and scope of her employment when she brought Jackson to Gladney. Specifically, in her brief Robinson sets out her sole issue as: “Is there a genuine issue of material fact whether Heidi Bruegel Cox was in the course and employment when she brought her dog to work?”

2

The only exception to the exclusive-remedy provision is when an employee’s death “was caused by an intentional act or omission of the employer or by the employer’s gross negligence.” Port Elevator–Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012).

Court of Appeals of Texas, Fort Worth.

DAVID C. MORGAN, Appellant

v.

THE STATE OF TEXAS

No. 02-19-00374-CR

|

Delivered: October 8, 2020

On Appeal from Criminal District Court No. 4

Tarrant County, Texas

Trial Court No. 1532390D

Before Sudderth, C.J.; Womack and Wallach, JJ.

Memorandum Opinion by Justice Womack

MEMORANDUM OPINION

Dana Womack Justice

I. INTRODUCTION

*1 Appellant David C. Morgan appeals his conviction for driving while intoxicated and felony repetition. In five issues, Morgan argues that the trial court abused its discretion by allowing (1) the State’s fingerprint expert to testify, (2) the State to introduce two charging instruments related to Morgan’s previous convictions for DWI, (3) his cross-examination of a key witness to be limited, (4) the admission of 911 calls, and (5) the introduction of certain medical records. We affirm.

II. BACKGROUND

A. The Collision and Arrest

Mailman Dang Dan Do was delivering mail on February 12, 2018, at roughly 8:00 p.m., when Morgan struck Do’s mail van with his SUV. The collision caused Do’s van to strike Do, and he sustained injuries to his head, neck, back, knee, leg, foot, and ankles. A nearby resident found Do in the street lying on the ground bleeding and incoherent. The resident also saw Morgan, who was outside his wrecked SUV “yelling and cussing” and “pouring out something.” The resident then called 911 and learned that emergency personnel had already been dispatched.

When paramedic Kathleen Leikam arrived at the crash scene, she found Morgan sitting in the passenger side of his vehicle shuffling through the glove compartment and the front of his SUV. Leikam testified at trial that Morgan seemed annoyed that she was there asking him questions and that Morgan wanted to go home. According to Leikam, Morgan’s body and breath smelled of alcohol, and he admitted having consumed alcohol before driving.

Fort Worth police officer Dusty Dwyer arrived on scene, observed the “highly damaged” SUV and mail van, and spoke with Morgan. By Dwyer’s account, Morgan had trouble answering questions and maintaining his balance. Morgan was also severely slurring his speech, and he had bloodshot, watery eyes. Dwyer said that he smelled the odor of alcohol coming from Morgan. Based on his observations, Dwyer determined that Morgan was intoxicated.

Officer Robert Hill of the Fort Worth Police Department also investigated the scene. When he arrived, Hill saw a beer bottle with some contents still in it on the passenger-side floorboard of Morgan’s SUV, and the floor mat was damp.

Dwyer arrested Morgan and transported him to jail, where Morgan agreed to provide a breath sample. The intoxilyzer operator testified that, based on his observations, Morgan was legally intoxicated. Morgan’s breath-test results showed his blood alcohol level to be 0.232 and 0.227.

B. The State’s Fingerprint Expert

At trial, the State called Corporal Homero Carnero of the Tarrant County Sheriff’s Office error resolution section as its expert fingerprint witness for the purpose of validating two prior convictions—State’s Exhibits One and Two. Carnero said that his duties at the sheriff’s office included “[m]aintaining the accuracy of the crime records [ ] of Tarrant County, consolidation to duplicate records, name changes, ID misuse investigations, everything via fingerprint analysis.” His duties also required him to compare known fingerprints with unknown fingerprints. According to Carnero, he had worked for the error resolution section for a year and three months. Prior to that, Carnero had compared fingerprints at booking for the identification section.

*2 Regarding his education and training, Carnero said that he has a bachelor’s degree in criminal justice and that two years prior to trial he had successfully completed a forty-hour fingerprint identification course. He also stated that he had attended a three-day seminar the previous year regarding how to correctly testify as a fingerprint examiner, but he agreed that the course did not entail learning fingerprint analysis. Carnero averred that he did not have any certifications in fingerprint analysis and that although he had read studies since his forty-hour training, he had not done so recently. Carnero did, however, confirm that he had previously testified “many” times in court as a fingerprint expert. Prior to testifying specifically about Morgan, defense counsel took Carnero on voir dire and then objected that Carnero had not met the qualifications of an expert witness. The trial court overruled the objection, and Carnero then testified regarding what he had learned about Morgan’s prior convictions.

Carnero testified that he had recently taken Morgan’s fingerprints so that he could compare them with known fingerprints “at the Tarrant County jail and known priors.” Using a “tenprint”1 card from the sheriff’s office, Carnero compared the fingerprints that he had taken from Morgan with the fingerprints on the tenprint card and determined that both sets of fingerprints matched. By Carnero’s account, when he examined a 1996 judgment for DWI misdemeanor repetition (State’s Exhibit 1), he determined that the fingerprint on State’s Exhibit 1 was “not readable.” Carnero was, however, still able to determine that State’s Exhibit 1 contained a judgment regarding Morgan because he was able to match Morgan’s name, date of birth, sex, race, and county ID number in the judgment to certified records from the Tarrant County jail. Carnero said that although he was able to match the fingerprint found on a 2002 judgment for DWI that the State introduced (State’s Exhibit 2) to the fingerprints found on the tenprint card, he was not able to match the fingerprints that he had taken from Morgan to the print found on State’s Exhibit 2.

C. Prior DWI Judgments and Charging Instruments

During Carnero’s time on the stand, the State sought to admit State’s Exhibits 1 and 2, but Morgan lodged a hearsay objection. Specifically, Morgan objected that in addition to the judgments of conviction, the exhibits contained their related charging instruments. Morgan specifically stated that he was not objecting to the judgments of conviction being admitted. The trial court overruled Morgan’s objection and admitted State’s Exhibits 1 and 2 for all purposes.

D. Defense Counsel’s Questioning of Do

Do testified at trial. During cross-examination, defense counsel began to question Do about whether he had filed for “workman’s comp”2 after the crash. The State objected. The trial court stated, “I’m going to let him answer the question asked, if he filed.” Do answered that he had filed for workers’ compensation. Defense counsel then asked Do whether he was currently receiving workers’ compensation to which the State objected again. Defense counsel argued that because the State was seeking a deadly-weapon finding—Morgan’s SUV—Do’s receiving workers’ compensation went “directly to the actual extent of his injuries and his motive for his testimony.” The trial court allowed Do to answer the question, and Do acknowledged that he was receiving workers’ compensation. Defense counsel then asked Do if he had ever previously filed for workers’ compensation. The State objected once more, the trial court sustained the objection, and defense counsel stated that he had no further questions of Do.

E. 911 Calls

*3 The State called Jill Nesbitt, the custodian of records for the Fort Worth Police Department’s communications section, for the purpose of authenticating a DVD (State’s Exhibit 20) the State sought to admit that contained two recordings of 911 calls made after Morgan crashed his SUV into Do’s mail van. Morgan objected that the calls were hearsay. The trial court overruled Morgan’s objection and admitted State’s Exhibit 20. The State did not seek to publish the 911 calls until after Nesbitt and two other witnesses had testified and during a fourth witness’s testimony. At that time, Morgan objected:

Your honor, we would renew our objection as to hearsay on the 911 call. And as far as the 911 call, that does not include this individual. We would object to it being played under -- it denies our right to confront the witness who is on it, it’s a Crawford3 violation, confrontation clause, and the predicate wasn’t properly laid.

The trial court overruled the objection, and the State published State’s Exhibit 20 for the jury. In one of the recordings, the caller described the accident and its immediate aftermath, including that Do was on the ground and in need of medical assistance.

F. Morgan’s Medical Records

The defense called Dr. Amy Gruszecki, a forensic pathologist, who testified about medical conditions that Morgan has that might explain his driving behavior, slurred speech, lack of balance, and bloodshot eyes on the night of the crash. Gruszecki also testified, from her review of the records, that Do’s injuries from the crash were not severe.

Gruszecki stated that in preparation for trial she had reviewed more than 2,000 pages of Morgan’s medical records. Prior to cross-examination, the State sought to introduce a DVD containing the 2,000 pages of Morgan’s medical records (State’s Exhibit 29). Morgan’s attorney said, “Your Honor, no objection as to the set of records she actually reviewed. This, however, contains additional records on it that she did not review, so we would object to those.” The trial court replied, “Well, you [prosecutor] can’t go into those records that she did not review.” After publishing State’s Exhibit 29 for the jury, the State elicited testimony from Gruszecki where she described that in 2012 Morgan had been treated for “headache, depression, and alcohol intoxication” and diagnosed as an alcoholic. She also averred that a 2013 lab test showed that Morgan’s blood alcohol level was 0.273.

G. Conviction and Sentence

The jury found Morgan guilty of DWI and felony repetition. The jury also found that Morgan had used or exhibited his SUV as a deadly weapon and that he had caused Do serious bodily injury. After the punishment phase of trial, the jury assessed punishment at thirteen years’ incarceration. The trial court rendered judgment accordingly, and this appeal followed.

III. DISCUSSION

A. The State’s Fingerprint Expert

In his first issue, Morgan argues that Carnero “was not an expert witness under the law and his testimony should have been excluded.” We disagree.

A person may be qualified to testify as an expert “by knowledge, skill, experience, training, or education.” Tex. R. Evid. 702. Our qualification inquiry asks whether the witness has a sufficient background in a particular field and whether that background goes to the very matter on which he will give an opinion. Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006). We are to focus on whether the expert’s background is “tailored to the specific area of expertise in which the expert desires to testify.” Id. at 133. “Because the possible spectrum of education, skill, and training is so wide, a trial court has great discretion in determining whether a witness possesses sufficient qualifications to assist the jury as an expert on a specific topic in a particular case.” Rodgers v. State, 205 S.W.3d 525, 527–28 (Tex. Crim. App. 2006).

*4 In determining whether an abuse of discretion occurred, we look to the complexity of the expert’s field, the conclusiveness of the opinion, and the dispositive nature of the testimony to the disputed issues. Id. at 528. The expert’s qualifications are less important if the complexity, conclusiveness, and dispositive nature of the expert’s opinion are low. Id. And the Texas Court of Criminal Appeals has explained that fingerprint comparison is not scientifically complex. Id.

Carnero testified that he had a bachelor’s degree in criminal justice and that he had successfully completed a forty-hour fingerprint identification course. At the time of trial, Carnero had worked for the Tarrant County Sheriff’s Office error resolution section for a year and three months. Carnero said that his main duty in the error resolution section was to compare fingerprints. Prior to that, Carnero had worked for the identification section comparing fingerprints. And by Carnero’s account, he had testified “many” times as an expert fingerprint witness. Carnero’s qualifications are similar to the qualification of expert witnesses from a number of cases where reviewing courts have held that the trial court did not abuse its discretion by allowing the expert to testify. Pender v. State, No. 02-13-00400-CR, 2014 WL 1859110, at *4 (Tex. App.—Fort Worth May 8, 2014, no pet.) (mem. op., not designated for publication) (holding that fingerprint expert qualified where expert had worked in fingerprint comparison for almost five years, had taken over forty hours of courses in fingerprint analysis, and was “more than halfway through” the coursework for obtaining a master’s degree in forensic science and toxicology); Fiscal v. State, Nos. 07-08-0193-CR, 07-08-0194-CR, 2009 WL 1393242, at *2 (Tex. App.—Amarillo May 19, 2009, pet. ref’d) (mem. op., not designated for publication) (holding that trial court did not err by allowing fingerprint expert to testify who had three years of experience comparing fingerprints, had taken a forty-hour course in fingerprint analysis, and was testifying in court for the first time); Harrison v. State, No. 2-02-339-CR, 2003 WL 21513618, at *2 (Tex. App.—Fort Worth July 3, 2003, no pet.) (mem. op., not designated for publication) (holding that witness was qualified to testify as fingerprint expert where State established that witness had been employed by police department for seventeen years and had forty hours of fingerprint training).

Morgan argues that because Carnero does not have a certification in fingerprint comparison and because Carnero was unable to match the fingerprints he took from Morgan to the prints found on State’s Exhibits 1 and 2, he was not qualified as a fingerprint expert. This court, however, has consistently held that certification or licensure is not a requirement for qualifying as an expert witness. See Pender, 2014 WL 1859110, at *4 (holding that certification was not a necessary requirement to qualify as a fingerprint expert); Duran v. State, 163 S.W.3d 253, 258 (Tex. App.—Fort Worth 2005, no pet.) (“Contrary to Appellant’s contention, licensure, or certification in the particular discipline is not a per se requirement.”).

Moreover, this court disagrees with Morgan’s characterization that Carnero lacked the skill to compare fingerprints given that he could not match the fingerprints he had taken with the ones found on State’s Exhibits 1 and 2. Indeed, Carnero testified that he was unable to match the fingerprint on State’s Exhibit 1 because it was “not readable” and of poor quality. He also testified that he was able to match the fingerprint found on State’s Exhibit 2 with Morgan’s fingerprints that were on file in the Tarrant County Sheriff’s Office.4 We conclude that the trial court did not abuse its discretion by allowing Carnero to testify as an expert in fingerprint comparison. See Pender, 2014 WL 1859110, at *4. We overrule Morgan’s first issue.

B. The Introduction of Prior Charging Instruments

*5 In his second issue, Morgan argues that the trial court abused its discretion by allowing the State to introduce the charging instruments related to the two judgments the State offered as proof of Morgan’s prior convictions for DWI. Like in the trial court, Morgan argues that these charging instruments contain inadmissible hearsay. We disagree.

In this case, the indictments were public records that “are not excluded by the rule against hearsay.” Tex. R. Evid. 803(8). As such, the charging instruments were admissible over Morgan’s hearsay objection. See Interest of A.W., No. 02-19-00057-CV, 2019 WL 2455610, at *2 (Tex. App.—Fort Worth June 13, 2019, pet. denied) (mem. op.) (holding that indictments are public records admissible under Rule 803(8)); Dotson v. State, No. 2-03-463-CR, 2008 WL 2780663, at *2 (Tex. App.—Fort Worth July 17, 2008, no pet.) (mem. op., not designated for publication) (same). We overrule Morgan’s second issue.

C. The Trial Court’s Limiting Morgan’s Questioning of Do

In his third issue, Morgan argues that his Sixth Amendment right to confrontation was violated and that relevant evidence was excluded at trial when the trial court forbid his attorney from asking Do about previous workers’ compensation claims. The State argues that Morgan has failed to preserve this issue for our review because he did not make a confrontation clause objection nor did he make an offer of proof at trial. We agree with the State.

To preserve a complaint for our review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds, if not apparent from the context, for the desired ruling. Tex. R. App. P. 33.1(a)(1); Thomas v. State, 505 S.W.3d 916, 924 (Tex. Crim. App. 2016). Further, the party must obtain an express or implicit adverse trial-court ruling or object to the trial court’s refusal to rule. Tex. R. App. P. 33.1(a)(2); Everitt v. State, 407 S.W.3d 259, 262–63 (Tex. Crim. App. 2013); Martinez v. State, 17 S.W.3d 677, 686 (Tex. Crim. App. 2000). To preserve a confrontation clause error, a party must object at the time the evidence is offered at trial. Craven v. State, 579 S.W.3d 784, 787 (Tex. App.—Houston [14th Dist.] 2019, no pet.). Because Morgan failed to lodge a confrontation clause objection when Do was testifying, he has failed to preserve this issue for our review.

Moreover, to preserve error regarding the exclusion of evidence, the offering party must make an “offer of proof” conveying the substance of the proffered evidence. Tex. R. Evid. 103(a)(2); see Roberts v. State, 220 S.W.3d 521, 532 (Tex. Crim. App. 2007). Because Morgan failed to make an offer of proof in the trial court, he has forfeited his complaint regarding the exclusion of evidence. We overrule Morgan’s third issue.

D. The Admission of 911 Calls

In his fourth issue, Morgan argues that the trial court allowed the State to play 911 calls for the jury without laying a proper predicate and that this “violates rules against hearsay, the Confrontation Clause, and Crawford ....” The State argues that Morgan has failed to preserve all but his hearsay objection because he did not lodge his Confrontation Clause, Crawford, or predicate objections until well after the DVD containing the 911 calls (State’s Exhibit 20) was admitted at trial. We agree with the State.

As noted above, to preserve a complaint for our review, a party must have (1) presented to the trial court a timely request, objection, or motion and (2) obtained a ruling. Tex. R. App. P. 33.1(a)(1); Thomas, 505 S.W.3d at 924; Everitt, 407 S.W.3d at 262–63. And a party must object as soon as the basis for the objection becomes apparent. Tex. R. Evid. 103(a)(1); London v. State, 490 S.W.3d 503, 509–10 (Tex. Crim. App. 2016). “The standard set by our high court for the timely assertion of objections is both demanding and unforgiving.” Jasso v. State, 112 S.W.3d 805, 813 (Tex. App.—Houston [14th Dist.] 2003, pet. ref’d) (citing Lagrone v. State, 942 S.W.2d 602, 617–18 (Tex. Crim. App. 1997)).

*6 Here, when the trial court admitted State’s Exhibit 20, Morgan objected only that the 911 calls contained hearsay. It was not until after multiple witnesses had testified that the State sought to publish the 911 calls for the jury. At that time, Morgan objected for the first time that playing the 911 calls was a violation of his confrontation clause rights, a Crawford violation, and a proper predicate had not been laid. Thus, Morgan has failed to preserve any objection except for his hearsay objection. See Burt v. State, 396 S.W.3d 574, 577–78 (Tex. Crim. App. 2013) (“An appellant fails to preserve error by failing to object when he had the opportunity ....”).

As to Morgan’s complaint that the 911 calls were inadmissible hearsay, we disagree that the trial court abused its discretion by allowing the recordings to be played. Generally, hearsay is inadmissible unless provided otherwise by a statute, the rules of evidence, or other rules prescribed under statutory authority. Tex. R. Evid. 802. But an exception to this rule against the admissibility of hearsay exists for statements that are present sense impressions. Tex. R. Evid. 803(1). A present sense impression is a “statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.” Id. Multiple Texas Courts of Appeals have held that 911 calls are admissible under the present sense impression exception to hearsay. See Reyes v. State, 314 S.W.3d 74, 78 (Tex. App.—San Antonio 2010, no pet.) (“The 911 recording includes statements by the caller that his mother was ‘limping’ and that she ‘needs’ an ambulance. These statements indicate the caller was describing events as they were happening and falls within the hearsay exception of present sense impression.”); see also Williams v. State, No. 02-17-00012-CR, 2018 WL 547598, at *8 (Tex. App.—Fort Worth Jan. 25, 2018, pet. ref’d) (mem. op., not designated for publication) (holding that 911 call was admissible under present sense impression exception to the hearsay rule); Rodriguez v. State, No. 07-14-00407-CR, 2016 WL 4254388, at *5 (Tex. App.—Amarillo Aug. 8, 2016, pet. ref’d) (same).

We have listened to the 911 calls, and the statements made by the callers were made immediately after the declarants observed Morgan crash his SUV into Do’s mail van. One caller described Do as she observed him on the ground in need of medical attention after the crash. Further, and to the extent that Morgan argues that the 911 calls contain both present sense impression statements but also non-present sense impression statements, a trial court does not abuse its discretion when it admits an exhibit in its entirety if the objecting party fails to request segregation of the admissible from the inadmissible. Reyes, 314 S.W.3d at 78. Here, Morgan objected only to the admission of State’s Exhibit 20, but he did not segregate any statements made in the calls found on State’s Exhibit 20. See id. (“Reyes objected to the entire recording and he did not request specific portions to be excluded. Because at least some statements in the recording appear to be a contemporaneous statement about an event the caller was witnessing, the trial court did not abuse its discretion by admitting the recording.”). We overrule Morgan’s fourth issue.

E. The Admission of Medical Records

In his fifth issue, Morgan argues that the trial court erred by allowing the State to introduce medical records the State utilized when cross-examining Gruszecki about Morgan’s alcoholism. Morgan argues that records pertaining to his “alcoholism and previous blood alcohol concentrations were irrelevant, not probative to the charge at hand, and were highly prejudicial to the jury.” The State contends that Morgan did not preserve these complaints for our review. We again agree with the State.

*7 In addition to the requirements of objecting and obtaining a ruling cited above, to preserve a complaint for appellate review, the complaint made on appeal must comport with the complaint made in the trial court, or the alleged error is forfeited. Clark v. State, 365 S.W.3d 333, 339 (Tex. Crim. App. 2012); Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009); see also Tex. R. App. P. 33.1.

Here, Morgan did not lodge a relevancy, probative, or prejudicial objection to the admission of the complained-of medical records. The only objection that Morgan asserted in the trial court regarding his medical records was that the State not be allowed to question Gruszecki about the “additional records on [State’s Exhibit 29] that [Dr. Gruszecki] did not review.” Notably, the trial court sustained this objection and ordered the State not to question Gruszecki about medical records she had not reviewed. See Ramirez v. State, 973 S.W.2d 388, 392 (Tex. App.—El Paso 1998, no pet.) (“[W]e note that a party cannot request something of the trial court and then complain that the court committed error in granting the relief.”). Because Morgan did not object in the trial court based on the grounds he now brings on appeal, and because the trial court granted him the specific relief he requested, he has failed to preserve this issue for our review. See Lovill, 319 S.W.3d at 691–92 (“A complaint will not be preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial.”). We overrule Morgan’s fifth issue.

IV. CONCLUSION

Having overruled all five of Morgan’s issues on appeal, we affirm the trial court’s judgment.

Footnotes

1 Carnero explained to the jury that a tenprint card is a card that contains an “arrestee’s identifying information, name, date of birth, sometimes they’ll have the arrest on there, along with the roll prints, which are fingertip to fingertip each digit of each hand, and the bottom is just pat-down, and that happens during the booking process.”
2 Defense counsel referred to Do having filed for “workman’s comp” multiple times in the record. We use the term “workers’ compensation” throughout the remainder of this opinion. See Tex. Labor Code Ann. §§ 401.001 et seq.
3 See Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369 (2004).
4 Carnero testified that he was able to match the judgment in State’s Exhibit 1 with Morgan without matching fingerprints by using Morgan’s name, birthdate, race, gender, and county ID.

Court of Appeals of Texas, Fort Worth.

Sabrina TAYLOR, Appellant

v.

TRISTAR RISK MANAGEMENT, Appellee

No. 02-19-00398-CV

|

Delivered: May 7, 2020

Attorneys & Firms

ATTORNEY FOR APPELLANT: SABRINA TAYLOR, PRO SE.

ATTORNEYS FOR APPELLEE: CHARLES C. FINCH, ROBERT D. STOKES, FLAHIVE, OGDEN & LATSON, AUSTIN, TEXAS.

Before Gabriel, Bassel, and Womack, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice Gabriel

*1 Appellant Sabrina Taylor was injured on the job in two separate accidents. After disputes arose between herself and her employer—the Dallas Independent School District—a hearing officer with the Texas Department of Insurance issued a ruling mostly in DISD’s favor. Taylor eventually filed suit in the trial court against DISD’s third-party insurance administrator—appellee Tristar Risk Management—seeking a judicial review of the administrative determination. The trial court granted Tristar’s summary-judgment motion, and Taylor now argues that the summary judgment deprived her of the statutory and due-process right to judicial review and was based on inapplicable “rules.” Because we conclude that the summary-judgment rule applies to the judicial-review petition and because Tristar conclusively established an affirmative defense to Taylor’s claim, we affirm the trial court’s summary-judgment order.

I. BACKGROUND

Taylor was employed by DISD, which provides workers’-compensation insurance as a self-insurer. See Tex. Lab. Code Ann. § 504.011(1). She hit her head on November 24, 2014, by walking into a glass door, and on December 3, 2014, by running into a cabinet shelf.1 Taylor filed claims for workers’-compensation benefits from DISD. See id. §§ 408.021, 408.121, 409.003.

The hearing officer heard the claims for the November 24 and December 3 injuries as companion cases. Although the parties stipulated that Taylor had sustained compensable injuries, they disagreed about whether she had reached maximum medical improvement. See id. § 410.166. After a hearing held over multiple days in 2017 and 2018, the hearing officer issued a decision in which he determined that Taylor had reached maximum medical improvement on March 6, 2015, with a 0% impairment rating, and ordered DISD to pay Taylor the appropriate benefits. See id. § 410.168. The hearing officer specifically provided in his decision that the “true corporate name of the Self-Insured is DALLAS INDEPENDENT SCHOOL DISTRICT” and that DISD could be served through its superintendent. DISD, as the insurance carrier, similarly notified Taylor of its true corporate name and its registered agent for service of process. See id. § 410.164(c).

Taylor sought review before the appeals panel. See id. § 410.202. The panel did not issue a decision; thus, the hearing officer’s administrative decision became final and was considered to be the final decision of the appeals panel. See id. § 410.204(c); 28 Tex. Admin. Code § 143.5(b) (Tex. Dep’t of Ins., Decision of the Appeals Panel). On April 13, 2018, the appeals panel notified Taylor of the determination and that any lawsuit seeking judicial review was due no later than 45 days after April 18, 2018. See id. § 410.252(a).

*2 Taylor filed a petition for judicial review in a Dallas County district court on June 3, 2018, which was within the 45-day filing period. See Tex. R. Civ. P. 4; 28 Tex. Admin. Code § 102.3(a)(3) (Tex. Dep’t of Ins., Computation of Time). Taylor named Tristar as the sole defendant. The trial court clerk issued a citation to Tristar on November 26, 2018; Tristar received the citation by certified mail on November 29, 2018. Tristar filed an answer and pleaded, as affirmative defenses, the statute of limitations and that it was an improper party defendant. Tristar also moved to transfer venue to Tarrant County where Taylor lived, which the trial court granted. See Tex. Lab. Code Ann. § 410.252(b)(1).

Tristar moved for a traditional summary judgment, arguing that because Taylor failed to use due diligence and ensure Tristar had been served within the 45-day limitations period, her claims were time-barred. See Tex. R. Civ. P. 166a(c). Tristar also argued that because it was DISD’s third-party administrator and not the insurance carrier, it was not a proper defendant to Taylor’s suit seeking judicial review of the administrative determination of her workers’-compensation claims. Although Taylor responded to the motion, she asserted only her statutory right to judicial review. The trial court granted Tristar’s motion, without specifying the grounds upon which it was based, and dismissed Taylor’s suit with prejudice.

II. PROPRIETY OF SUMMARY JUDGMENT

Now on appeal, Taylor contends that the trial court abused its discretion by dismissing her claim “based on rules that do not govern this type of case” and by conducting the summary-judgment hearing with Taylor by telephone instead of in person. She also generally argues that the trial court’s summary judgment impermissibly “bypass[ed]” her right to judicial review. We liberally construe Taylor’s pro se brief and assume that she is challenging each ground upon which the trial court could have granted summary judgment in Tristar’s favor. See Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 480 (Tex. 2019).

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light most favorable to Taylor, indulging every reasonable inference and resolving any doubts in her favor. See 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). Tristar was entitled to summary judgment on an affirmative defense if it conclusively proved, through summary-judgment evidence, all elements of that defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508–09 (Tex. 2010); Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008) (per curiam) (op. on reh’g). And because the trial court’s order did not specify the grounds upon which summary judgment was granted, “we must affirm the trial court’s judgment if any of the theories advanced are meritorious.” W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).

Tristar’s assertion that it was an improper party is an affirmative defense; thus, we must determine whether Tristar conclusively established it.2 See Edlund v. Bounds, 842 S.W.2d 719, 725 (Tex. App.—Dallas 1992, writ denied). The Texas Labor Code provides that an “insurance carrier” is liable for compensation for an employee’s injury. Tex. Lab. Code Ann. § 406.031(a). The statutory definition of an insurance carrier does not include a third-party insurance administrator but it does include “a certified self-insurer for workers’ compensation insurance.” Id. § 401.011(27)(B); see also 28 Tex. Admin. Code § 41.30 (Tex. Dep’t of Ins., Self-insureds). Here, the undisputed summary-judgment evidence established that DISD was self-insured for purposes of the Texas Workers’ Compensation Act and that Taylor had been notified that DISD was the insurance carrier. Accordingly, Tristar was “not the proper defendant” to Taylor’s suit for judicial review of the administrative determination of her claim for workers’-compensation benefits. Flour Bluff ISD v. Bass, 133 S.W.3d 272, 273 (Tex. 2004) (per curiam). This legal theory, therefore, supports the trial court’s summary judgment.

*3 Taylor argues that the law applied by the trial court—presumably Rule 166a(c)—does not govern her judicial-review petition. She contends that such review instead is governed by Chapter 410, Subchapter G of the Texas Labor Code. See Tex. Lab. Code Ann. § 410.301. However, the Texas Rules of Civil Procedure apply to the extent they do not conflict with Subchapter G. Id. § 410.305(a); Adkins v. Ector Cty. ISD, 969 S.W.2d 142, 144–45 (Tex. App.—El Paso 1998), pet. denied & disapproved on other grounds, 989 S.W.2d 363 (Tex. 1999) (per curiam). Here, we find no conflict between the right to judicial review under Subchapter G and the application of the summary-judgment rule to that review.

Taylor finally argues that her attendance at the summary-judgment hearing by telephone violated her statutory right to judicial review and the right to a jury trial. But Taylor was not entitled to an oral hearing on Tristar’s motion; she was only entitled to timely notice that a hearing would occur, which she received. See Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (per curiam). This procedural complaint does not affect the propriety of the trial court’s summary judgment.

III. CONCLUSION

Although judicial review of a workers’-compensation, administrative determination is authorized by the Texas Labor Code, the summary-judgment rules apply to that review. Because Tristar conclusively established that it was an improper party defendant, the trial court did not err by granting summary judgment on this pleaded affirmative defense, which was apparent from the face of the record. Accordingly, we overrule Taylor’s issues and affirm the trial court’s summary-judgment order.

Footnotes

1

Taylor had previously injured her head on November 14, 2014, by falling out of a chair while at work. The May 2017 contested case hearing regarding this injury resulted in a determination that the injury “extend[ed] to include post-traumatic headaches, ... [but did] not extend to include disc bulges at C4-5 or C5-6, cervical radiculopathy, cognitive communication deficit disorder, major depressive disorder, or migraines.” The outcome of this hearing is not at issue in this appeal.

2

A parties defect, while an affirmative defense, is also subject to the rule requiring that the issue be raised in a verified pleading. See Tex. R. Civ. P. 93(4). Here, Tristar did not assert the parties defect in a verified pleading. But because the truth of the defect was apparent in the record and was before the trial court at the time summary judgment was rendered, the lack of a verified pleading does not waive the defense. See Tex. R. Civ. P. 93; Cantu v. Holiday Inns, Inc., 910 S.W.2d 113, 116–17 (Tex. App.—Corpus Christi–Edinburg 1995, writ denied).

Court of Appeals of Texas, Fort Worth.

ATMOS ENERGY CORPORATION, Appellant

v.

Charles L. PAUL, Appellee

No. 02-19-00042-CV

|

Delivered: March 5, 2020

On Appeal from the Probate Court, Denton County, Texas, Trial Court No. PR-2017-00587, HON. BONNIE J. ROBISON, Judge

Attorneys & Firms

ATTORNEYS FOR APPELLANT: BRETT KUTNICK, JACKSON WALKER LLP, DALLAS, TEXAS.

ATTORNEYS FOR APPELLEE: CHRISTOPHER S. JOHNS & CHRISTEN MASON HEBERT, JOHNS & COUNSEL PLLC, AUSTIN, TEXAS.

Before Wallach, JJ., and Gonzalez, J.1

OPINION

Opinion by Justice Bassel

I. INTRODUCTION

*1 This appeal involves a dispute over the interpretation of a 1960 easement agreement that grants a right-of-way for the grantee to construct, maintain, and operate pipelines over and through 137 acres of property. Appellee Charles L. Paul currently owns a portion of this property. Atmos Energy Corporation, the current owner of the easement, sued Paul for violating the easement agreement after he denied Atmos access to construct a new pipeline.

In a single issue, Atmos appeals the probate court’s granting of summary judgment in Paul’s favor and rendering judgment that Atmos take nothing. Atmos argues that the probate court erred because (1) under standard principles of contract interpretation, the unambiguous easement is a blanket easement that permitted Atmos to construct a new pipeline anywhere on the property, subject to the requirement that the use of the right does not unreasonably interfere with the property rights of the owner of the servient estate, and (2) Paul did not conclusively prove that the new line unreasonably burdened Paul’s property. We agree and reverse and remand.

II. BACKGROUND2

A. The 1960 Easement Agreement granted Atmos, as successor-in-interest to Lone Star Gas Company, a right-of-way and easement to lay multiple pipelines over and through 137 acres of land in Denton County.

In 1960, Atmos’s predecessor-in-interest, Lone Star Gas Company, entered into a right-of-way and easement agreement (the Easement Agreement) with Paul’s predecessors-in-interest. In exchange for ninety dollars, the predecessors granted, sold, and conveyed to Lone Star Gas and its successors and assigns,

the right of way and easement to construct, maintain and operate pipe lines and appurtenances thereto ... over and through the following described lands situated in Denton County, State of Texas, to-wit:

[137 acres.]

TO HAVE AND TO HOLD unto said Grantee, its successors and assigns, so long as such lines and appurtenances thereto shall be maintained, with ingress to and egress from the premises, for the purposes of constructing, inspecting, maintaining, and replacing the property of Grantee above described, and the removal of such at will, in whole or in part.

The said Grantor is to fully use and enjoy the said premises, except for the purposes hereinbefore granted to the said Grantee, which hereby agrees to bury all pipes to a sufficient depth so as not to interfere with cultivation of soil, and to pay any damages which may arise to growing crops or fences from the construction, maintenance and operation of said pipe.... Should more than one pipe line be laid under this grant at any time, the sum of one dollar per lineal rod for each additional line shall be paid, besides the damages above provided for.

B. Lone Star Gas laid Line W in 1960 along the southern border of Paul’s property, and then in 2017, Paul denied Atmos access to install a new Line WD diagonally across his property.

*2 The summary-judgment record reflects that in 1960, pursuant to the Easement Agreement, Lone Star Gas installed Line W, a twenty-four-inch diameter gas pipeline, along the southern boundary of Paul’s property.

At some point, the 137 acres burdened by the Easement Agreement were subdivided. According to the summary-judgment evidence, in 2001, Paul purchased 64 acres of this subdivided property. Atmos, as successor-in-interest to Lone Star Gas, currently owns the right-of-way and easement rights granted by the Easement Agreement.

Atmos alleged that in January 2017, it met with Paul about installing a new pipeline on Paul’s property. The summary-judgment evidence reflects that the new pipeline (Line WD) would enter Paul’s property approximately 950 feet north of Line W on his western boundary line and run diagonally southeast to approximately 575 feet north of Line W on his eastern boundary line. The cropped image below depicts the boundaries of Paul’s property in green, Line W in red, and Line WD in white.3

The Easement Agreement requires the payment of one dollar per lineal rod for any additional lines laid under that agreement. The summary-judgment record evidences that Atmos tendered Paul payment in the amount of $70.31 as payment for Line WD, which Paul rejected.

C. Atmos sued Paul for breach of contract for denying it access to his property to install Line WD.

In July 2017, Atmos sued Paul for breach of contract, alleging that Paul had violated the Easement Agreement “[b]y denying [Atmos] access to the [p]roperty,” “unlawfully interfer[ing] with [Atmos’s] [e]asement rights,” and threatening to delay the construction of the new pipeline. Atmos alleged that it was necessary for Atmos to construct a second pipeline because the demand for gas in Denton County and North Texas greatly increased such that Line W, by itself, could not continue to adequately provide natural gas to all areas that it was originally designed to serve. Atmos alleged that Paul had claimed that the new Line WD was in excess of the rights provided for under the Easement Agreement.

After Atmos filed suit, the parties entered into a “Right of Possession and Use Agreement” (PUA) that allowed Atmos to access Paul’s property to install Line WD, conditioned on the probate court’s ruling on Atmos’s right to use the land.4 Pursuant to the PUA, Atmos has constructed Line WD on Paul’s property.

D. Paul moved for a traditional summary judgment on Atmos’s claim for breach of contract, arguing that he negated the breach element to the claim as a matter of law.

1. In seeking summary judgment, Paul argued that the laying of Line W set the location and width of a single easement envisioned by the Easement Agreement and that Line WD is outside that easement.

Paul filed a traditional summary-judgment motion on Atmos’s breach-of-contract claim. He admitted that he had denied Atmos access to his property. But he argued that he did not breach the Easement Agreement in doing so because (under his interpretation of the agreement), as a matter of law, the Easement Agreement does not permit the installation of the new line, Line WD.

*3 Under Paul’s interpretation, the Easement Agreement is not ambiguous and created only “one ‘right of way and easement’ ” that “allows for multiple pipelines, [but] not multiple easements.” He acknowledged that the Easement Agreement “did not set [the easement’s] location.” But relying heavily on Houston Pipe Line Company v. Dwyer, 374 S.W.2d 662, 665–66 (Tex. 1964) (which we discuss in our analysis), Paul argued that Atmos’s predecessor, Lone Star Gas, set the easement’s location and the maximum pipeline diameter when it laid Line W in 1960. “Thus, when Atmos’s predecessor installed its first pipeline (Line W) along the southern boundary of the Property, this act forever set both the location of the easement and the maximum diameter (24 inches) of any future-laid pipelines within it.” He further argued that “[a]ny subsequent pipelines installed under the [Easement Agreement] must parallel the first pipeline and must be located within this easement.”

In support of his motion, Paul filed an affidavit stating that at some point between 2002 and 2004, he began installing dog kennels south of his barn (where Line W is located) when an Atmos agent told him that he could not place a structure within Atmos’s easement.5 The agent told him that Atmos’s easement was fifty-feet wide. Paul further stated by affidavit that between 2003 and 2004, Atmos installed another pipeline (Line X) parallel to and approximately ten feet south of Line W, between Line W and his property’s southern boundary line. Thus, he argued, Atmos knew that it had to build this Line X within the same right-of-way established by the placement of the original pipeline under the Easement Agreement.

As to the question whether Line WD unreasonably burdens his land, Paul stated in his affidavit that “[t]he location of [Line WD] severely impacts [his] ability to develop the [p]roperty to its highest and best use.” He argued generally that if the Easement Agreement authorized Atmos to “lay any number and diameter of new pipelines in any location on the [p]roperty every time an increased demand for gas made it necessary, the extent of its easement would never become fixed or definitely ascertainable.” Paul contended that “[n]o reasonable buyer would seriously consider buying land that could be spider-webbed with an unlimited number of new pipelines at the drop of a hat”; citing Dwyer, he argued that any interpretation that grants “Atmos such a boundless right [is] unreasonable.”6

2. Atmos responded to Paul’s summary-judgment motion by arguing that the Easement Agreement granted a “multiple pipeline blanket easement” that does not specifically designate where pipelines are to be constructed.

Atmos argued that under governing contract-interpretation principles, the Easement Agreement granted a “blanket easement containing multiple pipeline rights” with “no limitations on where future pipelines can be placed”; it is a “multiple pipeline blanket easement.” In Atmos’s view, requiring all future pipelines to be laid within an arbitrarily imposed fifty-foot-wide area or “single and narrow easement corridor” improperly limits the number of pipelines that could be laid on the property, in direct violation of the express terms of the Easement Agreement.7

*4 Atmos argued that Paul misinterpreted Dwyer stands for the proposition that the location and size of an easement may become fixed once it is installed under a blanket easement that authorizes only one pipeline, that proposition does not apply to the Easement Agreement because it authorized multiple pipelines. In the view of Atmos, single pipeline easements are different from multiple pipeline easements because the latter are “not fixed unless the easement instrument expressly fixes them.” Atmos argued that the Easement Agreement granted the equivalent to “multiple floating easements.”

Atmos also filed an affidavit signed by Drake Miller, an Atmos engineer. As to the incident relating to the dog kennels, Miller stated that he found no record or evidence of (1) an Atmos agent ever stating that the Easement Agreement required Atmos to install pipelines within a fifty-foot-wide area around the existing Line W or that the easement was limited to fifty feet in width, or (2) that any Atmos agent was ever authorized to make such statements. As to Line X, Miller stated that although Atmos does operate a Line X pipeline, it is more than forty miles away from Paul’s property at its closet point. Although Atmos had installed a replacement Line W next to the original Line W, it had never built or operated any other pipeline on Paul’s property other than the new Line WD.

Miller’s affidavit also included an explanation of various factors that went into Atmos’s decision to route Line WD diagonally across Paul’s property. Such factors included, among other things, the location of homes, barns, a creek, a pond, and other pipelines. His affidavit included a map showing certain property boundaries in green, Line W in red, other pipelines in blue, Line WD in white, and yellow tacks for various obstructions:

According to Miller’s affidavit, the route chosen was the “best route to enable Atmos to construct, maintain, and operate Line WD while at the same time limiting the impact on the landowners [including Paul and surrounding landowners] burdened by the existing easements as much as reasonably possible.”

E. The probate court granted summary judgment and entered a final judgment that Atmos take nothing.

The probate court held a hearing, granted Paul’s summary-judgment motion, and entered a final judgment that Atmos take nothing. The probate court also

[found] and declare[d] that (1) the 1960 easement is not a blanket easement covering all of [Paul’s] property; (2) [Atmos] exceeded its rights under the 1960 easement by installing the pipeline known as Line WD in its current location on [Paul’s] property; and (3) [Paul] did not breach the 1960 easement by withholding his consent to the installation of Line WD in its current location on [Paul’s] property.

Atmos now appeals.

III. PRELIMINARY MATTER

We will first address the probate court’s “find[ings]” and “declar[ations]” before turning to the standard of review. Neither party filed a claim for declaratory judgment in the probate court,8 and the probate court’s “findings” and “declarations” do not separate any grounds on which it granted summary judgment from other grounds that Paul asserted in his motion. Thus, the probate court’s findings and declarations constitute findings of fact and conclusions of law that have “no place in a summary judgment proceeding.” See Peebles v. Advanced Wholesale Car Concepts, Inc., No. 05-99-00269-CV, 1999 WL 1212260, at *1 (Tex. App.—Dallas Dec. 17, 1999, no pet.) (mem. op., not designated for publication) (declining to address appellant’s points of error relating to probate court’s findings of fact when granting summary judgment).

IV. STANDARD OF REVIEW

*5 We review a summary judgment de novo. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).

If a defendant, such as Paul, conclusively negates at least one essential element of a plaintiff’s cause of action, then the defendant is entitled to summary judgment on that claim. Van v. Peña, 990 S.W.2d 751, 753 (Tex. 1999).

V. LAW GOVERNING EASEMENT INTERPRETATION

A property owner’s right to exclude others from his or her property is “one of the most essential sticks in the bundle of rights that are commonly characterized as property.” Marcus Cable, 90 S.W.3d at 700.

The law balances the rights of the parties to an easement by specifying that “[a] servient estate holder [the owner of the underlying fee] cannot interfere with the right of the dominant estate holder’s [the holder of the easement] use of an easement for the purpose for which it was granted or sought.” Severance v. Patterson, 370 S.W.3d 705, 721 (Tex. 2012) (op. on reh’g) (“Because the easement holder is the dominant estate owner and the land burdened by the easement is the servient estate, the property owner may not interfere with the easement holder’s right to use the servient estate for the purposes of the easement.”).

Our primary concern is to ascertain the true intentions of the parties as expressed in the instrument. See Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *6.

*6 We must read an easement agreement as a whole in determining the parties’ intentions and to carry out the purpose for which the easement was created. See Smith, 251 S.W.3d at 823.

The language in an agreement is to be given its plain, grammatical meaning unless to do so would defeat the parties’ intent. DeWitt, 1 S.W.3d at 100.

As specifically applicable to the present controversy, “Texas courts have held the failure to spell out all the terms in an easement with respect to the construction of additional pipelines does not render ambiguous or unenforceable the rights granted.” Strauch v. Coastal States Crude Gathering Co., 424 S.W.2d 677, 681 (Tex. App.—Corpus Christi–Edinburg 1968, writ dism’d)).

An easement’s express terms, interpreted according to their generally accepted meaning, delineate the purpose for which the easement holder may use the property. id.

The emphasis that Texas law places upon an easement’s express terms serves important public policies by promoting certainty in land transactions. Id.

A use that falls outside the assigned purpose of the grant is not permitted simply because it provides a public benefit; permitting that use would circumvent the contracting parties’ intent by disregarding the easement’s express terms and the specific purpose for which it was granted. See Marcus Cable, 90 S.W.3d at 703.

*7 But at the same time, Texas’s public policy “strongly favors freedom of contract.” Rubinstein, 497 S.W.3d at 625.

With these principles in mind, we turn to our analysis of the Easement Agreement.

VI. THE PROBATE COURT ERRED BY GRANTING SUMMARY JUDGMENT.

In its sole point on appeal, Atmos argues that the probate court’s granting of summary judgment on its breach-of-contract claim was error. Because Paul’s summary-judgment motion focused on the breach element to Atmos’s contract claim, our review is limited to whether Paul conclusively established that he did not breach the Easement Agreement when he refused Atmos access to install Line WD. To resolve this question: (1) we must interpret the Easement Agreement to determine whether it requires all pipelines to be laid along the same corridor that the original Line W was laid; and (2) if not, then we must determine whether the summary-judgment record conclusively established that Line WD unreasonably burdens Paul’s property. See Marcus Cable, 90 S.W.3d at 701, 703.

Because we conclude that the unambiguous Easement Agreement is a multiple pipeline blanket easement that does not require all pipelines to be laid along the same path as Line W and that Paul did not conclusively establish that Line WD unreasonably burdens his property, Paul did not conclusively negate the essential element of breach to Atmos’s breach-of-contract claim. Thus, the probate court erred by granting summary judgment and entering a final judgment that Atmos take nothing.

A. By its express terms, the unambiguous Easement Agreement granted a multiple pipeline blanket easement.

As an initial matter, there is no dispute in this case about whether the Easement Agreement authorizes Atmos to install a second line. By its express terms, the grant permits the grantee “to construct, maintain[,] and operate pipe lines” and to lay “more than one pipe line ... at any time.” [Emphasis added.] Thus, Atmos’s use of the easement (the installation of Line WD generally) is a purpose for which the easement was expressly granted, and Paul does not contend otherwise. See Taylor Foundry, 51 S.W.3d at 770. The dispute in this case focuses on where Line WD may, or must, be installed.

To answer that question, we look to the Easement Agreement because the original contracting parties’ intentions, as expressed in the grant, determine the scope of the conveyance. See Marcus Cable, 90 S.W.3d at 700–01. Atmos argues that the Easement Agreement is a “blanket easement” over the entire 137-acre tract of land, which includes Paul’s property, and that because the blanket easement allows Atmos to construct additional pipelines across the property in the future, it had the right to install Line WD without regard to the location where Line W was originally constructed. We agree.

*8 Under Texas law, a “blanket easement” is “[a]n easement without a metes and bounds description of its location on the property.” First Am. Title Ins. Co. of Tex. v. Willard, 949 S.W.2d 342, 344 n.2 (Tex. App.—Tyler 1997, writ denied) (op. on reh’g).9 “It is not necessary ... for the easement description to be a smaller area than the entire servient estate.” 2 Tex. Prac. Guide Real Estate Trans. § 15:19. “An easement over an entire servient tract is a ‘blanket easement.’ ” Id. “Blanket easements have been commonly used in Texas history, particularly for long route utility projects such as pipelines and electric power lines.” Id. “The purpose of a blanket easement is for the practical convenience of the easement holder to alter the exact location of the lines during construction.” Id.; see also Cunningham, supra note 9, at 183 (“Historically, it was not uncommon for utilities and other infrastructure developers to obtain from landowners blanket easements that allowed improvements to be located anywhere on the subject property.”). “The flip side of the flexibility provided for a blanket easement is the loss of control of exclusive use which the landowner otherwise enjoys.” 2 Tex. Prac. Guide Real Estate Trans. § 15:19.

Here, the Easement Agreement contains no metes and bounds description specifying the location of an easement on the property. Rather, it conveys “the right of way and easement to construct, maintain and operate pipe lines and appurtenances thereto ... over and through the following described lands situate[d] in Denton County, State of Texas, to-wit”:

137 acres, more or less, out of the A.C. Madden Survey, Abstract No. 852

R.M. Thompson Survey, Abstract No. 1578 and B.C. Barnes Survey, Abstract No. 85

more fully described in deed from Sarah Anna Knox to M.A. Knox recorded in Volume 325, Page 520, Deed Records of said County, to which reference is here made for further description.

The Easement Agreement’s reference to the entire 137 acres (of which Paul’s property is only part) fits squarely within the definition of a blanket easement. See First Am. Title, 949 S.W.2d at 344 n.2.

By its express terms, the Easement Agreement permits the grantee to lay “pipe lines” and “more than one pipe” at “any time.” [Emphasis added.] The Easement Agreement provides initial consideration of ninety dollars and then one dollar per lineal rod for any additional line laid in the future. There is no language limiting the location or width of the lines or requiring that any additional lines be parallel or adjacent to the first line laid. Rather, the Easement Agreement identified the entire 137-acre tract as the property burdened by the servitude.

As a matter of law, the face of the Easement Agreement created an expansible, or multiple line, blanket easement. See Boland, 816 S.W.2d at 845).

Under the plain language of the Easement Agreement, Paul’s predecessors-in-title intended to burden their entire 137-acre tract of land and for the grantee to have the right to lay an unlimited number of pipelines as it may reasonably demand across the entirety of the predecessors’ property by expanding the servitude each time upon the payment of the additional consideration of one dollar per lineal rod. See Phillips Petroleum Co. v. Lovell, 392 S.W.2d 748, 749–51 (Tex. App.—Amarillo 1965, writ ref’d n.r.e.).

B. Atmos’s use of the rights granted under the Easement Agreement, however, may not unreasonably interfere with Paul’s property rights.

*9 The grant of a multiple pipeline blanket easement does not mean, however, that Atmos may use Paul’s property however it deems fit without regard to the burden it places upon Paul’s use of his land.

The majority of states, including Texas, that have chosen to impose limits on existing easement rights adopt some version of the “reasonable necessity test.” See Cunningham, supra note 9, at 188–89. Under Texas law, “[a] grant or reservation of an easement in general terms implies a grant of unlimited reasonable use such as is reasonably necessary and convenient and as little burdensome as possible to the servient owner.Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *9.

As it pertains to this case, Atmos is restrained by this rule of reasonable necessity when it selects a route for Line WD. What constitutes an unreasonable use of easement rights such that the grantee is unreasonably interfering with the property rights of the servient estate is a question that is inherently fact intensive. Paul expresses fear that Atmos may “spiderweb” his property with numerous pipelines. But we are faced with no actual controversy involving any such threat by Atmos in this case. See Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *9 (“Because landowners purchase properties aware of any encumbrances, and easements are a common encumbrance, landowners are charged with notice of easements that may encumber their property, including easements that do not contain a specific width but instead include general language.”).

*10 Accordingly, we conclude that the Easement Agreement granted Atmos the right to lay additional pipelines anywhere on Paul’s property (which is only 65 acres out of the 137 acres in the grant) “as is reasonably necessary and convenient and as little burdensome as possible to [Paul,] the servient owner,” and that such additional lines do not have to be in the same corridor as Line W. See Taylor Foundry, 51 S.W.3d at 770. We address the question of whether Paul demonstrated that Atmos’s selected route for Line WD unreasonably burdens his property as a matter of law below.

C. Paul’s interpretation of the Easement Agreement is not reasonable.

Before turning to that question (unreasonable burden of Line WD), we explain in detail why we reject Paul’s interpretations of the Easement Agreement that underlie his contention that Atmos did not have the right to lay Line WD outside the corridor where Line W was originally laid. Paul argues that the Easement Agreement created a single path through the property, not a blanket covering all 137 acres. Although Atmos may install multiple “pipe lines,” he argues that it may do so only in this single corridor of reasonable width. He contends that this corridor was fixed when Lone Star Gas laid Line W along the southern boundary of his property.

Paul contends that his interpretation is the only reasonable one because it: (1) is consistent with the precedent established in Dwyer, 374 S.W.2d at 662–66 (discussed below); (2) is grounded in the generally accepted meanings of the terms “easement,” “right-of-way,” “over,” and “through”; (3) does not render the right of “ingress” and “egress” meaningless; (4) is consistent with the compensation terms of the grant; and (5) is consistent with a requirement in the grant that the grantee pay for damages to growing crops and fences. As we explain below, Paul’s interpretation is not reasonable because he misapplies the case law, misconstrues the nature of easements, and construes the language in the Easement Agreement too narrowly.

1. Paul’s interpretation is based upon a misapplication of Dwyer, which does not involve a multiple pipeline blanket easement.

Relying on his interpretation of Dwyer.

In Id.

*11 The pipeline company laid, in 1926, a line with an eighteen-inch diameter. Id.

The landowners sued to remove the easement as a cloud on their title and to obtain a declaration that the easement terminated as a result of the pipeline company removing the eighteen-inch pipe and replacing it with the thirty-inch pipe. Id. at 662, 666. The issues on appeal were whether the pipeline company had terminated the easement by removing the first pipe and exceeded its rights by installing the larger pipe.

The Supreme Court of Texas concluded that the pipeline company “was not authorized to remove this 18-inch line initially constructed and replace it with a line of substantially greater size.” Id. at 666. Quoting Thompson on Real Property, Perm. Ed. § 681, the court explained,

A grant in general terms of a right to lay a pipe for the purpose of conducting water across the land of the grantor without specifying the place for laying it or the size of the pipe is defined and made certain by the act of the grantee in laying down the pipe; and after he has once laid the pipe with the acquiescence of the grantor, the grant which was before general and indefinite becomes fixed and certain and the grantee [cannot] change the easement either by relaying the pipe in another place or by increasing its size.

Id. at 666.

Paul, applying Dwyer, argues,

The 1960 Easement Agreement does not define the metes and bounds of the easement. But when Atmos’s predecessor laid its pipeline with the acceptance of [Paul’s predecessors-in-title], the easement “which was before general and indefinite” became “fixed and certain.” Dwyer, 374 S.W.2d at 666. Atmos cannot chose a new easement route.

In other words, he argues that there is only one path or corridor for all pipelines to be laid under the Easement Agreement, and that this path or corridor was set by Line W. Dwyer.

We agree that, although not expressly noted by the Dwyer the flexibility to determine a location for the easement as it was laying the pipe with the acquiescence of the owner of the servient estate. See 2 Tex. Prac. Guide Real Estate Trans. § 15:19. The same is true with respect to Line W in the instant case.

*12 But the fact that Dwyer court did not address the question of whether the location of a first line laid under a multiple pipeline blanket easement set the location of additional pipelines laid under the grant; it addressed the location of the one and only pipeline permitted by the grant in that case and, more specifically, whether the easement had been terminated by the pipeline company’s removal and replacement of the first pipe with a larger pipe.

Lovell, 392 S.W.2d at 749–51. The omission of any specific location within the 137 acres for any of the pipelines was deliberate and forward-looking.

Other courts have distinguished Dwyer because it “involved a single line grant,” which is not “applicable to a multiple line grant”).

*13 Williams, 417 S.W.2d at 454–55.

A grant may authorize a use greater than the one actually used, and such prior use does not nullify the greater rights conveyed in the grant. See Id. (quotation marks omitted). Here, the Easement Agreement gives Atmos a right (to lay multiple lines at any time over and through 137 acres) in excess of the one actually used (laying only a single pipeline along the southern boundary line). Atmos still has the greater rights as conveyed in the Easement Agreement, despite the fact that Atmos (and its predecessors) had installed and operated only Line W since 1960.11

Accordingly, Paul’s analysis is grounded in a fundamental misunderstanding of what questions Dwyer.

2. We reject Paul’s argument that the right to lay “multiple pipelines” is distinct from “multiple routes” because it renders provisions of the Easement Agreement meaningless.

To reconcile his interpretation with the language authorizing the grantee to lay “pipe lines” and “more than one pipe line” “at any time” for “one dollar per lineal rod for each additional line,” Paul argues that the “right to lay multiple lines does not imply the distinct right to create multiple routes over the property.” Thus, he argues, although the Easement Agreement permits multiple pipelines, they must all be laid within a single corridor. We disagree.

To support his position, Paul cites our opinion in Id. at 845.

*14 Although the instrument in Boland included the language, “at route or routes selected by Grantee,” nothing in that opinion stands for the proposition that such language must be included in order to interpret an easement as permitting multiple routes. In the Easement Agreement, the right to multiple routes is embodied in the granting instrument itself by virtue of the fact it is a multiple pipeline blanket easement.

The language in Crawford v. Tenn. Gas Transmission Co., 250 S.W.2d 237, 237–41 (Tex. App.—Beaumont 1952, writ ref’d) (holding that instrument authorizing “one or more additional lines of pipe adjacent to and parallel with the first pipe line laid by grantee” with payment of one dollar per lineal rod for such additional lines did not “limit the pipe line operations of the [company] to any specific width” and “any attempt by the courts to limit the [company] to a certain portion of the land would alter the stated purpose for which the grant was made”).

Paul also cites to Cummings does not state that the appellate court limited the scope of the easement grant to a “reasonable width” of sixty feet.

Instead, Id.

*15 We disagree with Paul’s argument that the Easement Agreement permits only a single path or corridor for all pipelines for more reasons than it is unsupported by the cases that he cites. His interpretation also abrogates the provisions identifying the encumbered property as the entire 137-acre tract of land and authorizing the grantee to lay “pipe lines” and “more than one pipe line” “at any time” for “one dollar per lineal rod for each additional line.” Ignoring this language violates the well-established interpretation principles that prohibit us from disregarding the language of the grant. See Lovell, 392 S.W.2d at 750 (“For us to hold ... that the plural language ‘pipe lines’ was intended by the parties to mean only those laid in 1944 under that grant ... would be to completely disregard the language providing: ‘at any time or times’ and the provision for payment of the designated amount per rod for the laying of a pipe line or pipe lines at any time or times.”).

Other courts agree that the interpretation advanced by Paul would require us to abrogate the language of the Easement Agreement. For example, in Id. at 750. Paul’s interpretation likewise requires us to disregard and strike down the similar language in the Easement Agreement.

Similarly, in Id. at 937.

In reversing the trial court’s grant of injunctive relief to the landowners, the appellate court concluded that the trial court erred by “re-defin[ing] the terms of the grant and restrict[ing] the use granted by the instrument.” Harris v. Phillips Pipe Line Co., 517 S.W.2d 361, 362–65 (Tex. App.—Austin 1974, writ ref’d n.r.e.) (holding that Phillips could lay a new line fifteen feet from of an old line because the grant, which permits “pipe lines,” is broad and does not limit the number of lines or specify a width for the expansible easement).

*16 Paul seeks to redefine the nearly identical language in the Easement Agreement in a manner analogous to the landowners’ argument in Childress, 187 S.W.2d at 939–40.

Paul also tries to sidestep many of the cases we have cited to explain our interpretation of the Easement Agreement, such as Lovell, by claiming that they deal with whether an existing “easement strip was ‘expansible’ to accommodate new lines, not whether the pipeline company could create new paths anywhere on the property.” This argument misconstrues the nature of a multiple line, or expansible, easement. It is not the size of the original strip, as Paul calls it, that is expanding. Rather, it is the amount of land burdened with an actual pipeline that is being expanded, regardless of any “strips” used for prior pipelines.

Accordingly, we conclude that it is not necessary for a multiple pipeline blanket easement to expressly state that the grantee is entitled to multiple routes in order for the grantee to lay a subsequent line in a location different from the first line laid under the grant in the absence of express language in the grant imposing that limitation. We reject Paul’s argument that the “right to lay multiple lines does not imply the distinct right to create multiple routes over the property” under this Easement Agreement because it is contrary to the very nature of multiple pipeline blanket easements under Texas law.

3. Paul’s interpretation is inconsistent with the plain, ordinary, and generally accepted meanings of “over,” “through,” “right-of-way,” and “easement.”

We now turn to the root cause of Paul’s erroneous interpretation of the Easement Agreement. Paul focuses on the language in the Easement Agreement wherein the grantors conveyed “the right of way and easement” to contend that there was only one (the) path or route granted. [Emphasis added.] He contends that the plain, ordinary, and generally accepted meanings of “right-of-way” and “easement” were, in the 1960s, “a space of conventional width” for one or more lines and a “way” or path, respectively, according to a 1968 version of Black’s Law Dictionary. Paul parses the terms of the Easement Agreement too narrowly and misundertands the nature of easement rights.

First, Paul interprets “right-of-way” to mean “a space of conventional width” by cherry picking a portion of the 1968 definition relating to railroads that stated an easement for tracks is “a space of conventional width for one or more railroad tracks.” Right of Way, Black’s Law Dictionary (4th ed. 1968). But Black’s broader definition of “right-of-way” generally meant “a servitude ... by virtue of which one has a right to pass ... through the estate of another.” Id. (emphases added). “[It] is the right of passage over another [person’s] ground” and “the mere intangible right to cross, a right of crossing, a right of way.” Id. (emphases added). The term connoted the granting of a right to pass through, over, and to cross another’s property; it does not mean a specific path. The definition is the same today. See Right-of-Way, Black’s Law Dictionary (11th ed. 2019) (“The right to pass through property owned by another” and “The right to build and operate a railway line or a highway on land belonging to another”). Thus, the dictionary definition of “right-of-way” was not as narrow as Paul contends.

*17 Second, Paul likewise misconstrues the 1968 definition of “easement” to mean “way” or “path” by picking out the word “way” from a series of definitions of the term easement. Again, the 1968 Black’s Law Dictionary generally defined easement more broadly as “[a] right in the owner of one parcel of land ... to use the land of another for a special purpose not inconsistent with a general property in the owner.” Easement, Black’s Law Dictionary (4th ed. 1968) (emphasis added). Another definition stated that an easement was “[a] privilege, service, or convenience which one neighbor has of another ... as a way over his land, a gate-way, water-course, and the like.” Id. (emphasis added). And, among other things, an easement was defined as “[a] liberty, privilege, or advantage without profit, which the owner of one parcel of land may have in the lands of another.” Id. (emphasis added). Easement has the same meaning today. See Easement, Black’s Law Dictionary (11th ed. 2019) (“An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose....”). Once again, Paul focuses on narrow definitions that support his position while ignoring the more prevalent definitions that undermine his argument. An easement is a nonpossessory interest in real property; it is not simply a synonym for “way” or “path.”

Third, Paul is impermissibly giving the term “the” in reference to “right-of-way” and “easement” controlling effect while disregarding the broader meaning of these terms and the additional plain language of the Easement Agreement permitting multiple pipleines to be laid “over” and “through” the entire 137-acre tract for new compensation. See Coker, 650 S.W.2d at 393. We interpet “the right-of-way and easement” in the Easetment Agreement to mean that the grantors conveyed the right “to construct, maintain and operate pipe lines ... over and through” the 137-acre tract. Our construction gives effect to all provisions in the agreement whereas Paul’s does not.

Paul similarly argues that the terms “over” and “through” generally mean path, not a spiderweb.12 But he again selects a meaning that suits his purposes while ignoring others. “Over” means, among other things, “from one point to another across an intervening space,” “above,” “so as to cover, conceal, or affect the whole surface,” and “from beginning to end.” Over, Webster’s Third New Int’l Dictionary (2002). “Through” indicates, among other things, “from one side to another,” “from one end or boundary ... to another,” “over the whole distance,” and “from beginning to end.” Through, Webster’s Third New Int’l Dictionary (2002). The broader definitions of “over” and “through” embody the entirety of the land identified in the easement—the 137-acre tract.

When we apply the generally accepted definitions of the words, the language “the right of way and easement” “over” and “through” the 137-acre tract does not limit the grantee’s right to use only a single corridor of reasonable width to lay multiple pipelines. The generally accepted meanings of these terms are consistent with our interpretation of the Easement Agreement as granting a multiple pipeline expansible blanket easement above the whole surface, from one end of the property to the other. “The right of way and easement” meant that the grantors conveyed to the grantee the right to pass over and through the property (right-of-way) and to use the 137-acre tract (easement) for the purposes expressly set out in the Easement Agreement. “The” right is exercised and the amount of the servient estate used (and the easement) is expanded every time Atmos pays the “one dollar per lineal rod” for each additional line. See Lindemann Props., 524 S.W.3d at 881 (rejecting landowner’s argument that the easement’s use of “a” and “said” authorized the placing of only a single tower because, although they are singular words, the landowner’s interpretation focused exclusively on the meaning and effect of only those terms while completely disregarding the meaning and effect of others).

*18 Accordingly, we reject Paul’s argument that “the right of way and easement” “over and through” the lands restricted Atmos to a single path that was established by the first line laid for all pipelines laid under the grant because his interpretation is contrary to the generally accepted meanings of these terms.

4. Paul’s contention that our interpretation renders the right of “ingress” and “egress” meaningless is incorrect.

Paul argues that interpreting the Easement Agreement as granting a blanket easement over the entire 137 acres renders the reference to “ingress” and “egress” held by the grantee to be meaningless because these rights are “completely unnecessary and meaningless” if the “right-of-way” and “easement” were the “entire 137 acres.” Again, we disagree.

Paul’s argument mistakes “blanket easement” to mean the existence of an easement that grants unrestricted use of the entire 137-acre tract. This is not what “blanket easement” means. As we explained above, a blanket easement affords the grantee the flexibility to select a route for the pipeline (or other utility) being installed. The grantee does not have a free-ranging use of the remainder of the land described in the granting instrument. In the case of instruments granting the right to lay multiple lines, once the grantee installs a line under the blanket easement, the location of the easement with respect to that line becomes fixed and certain. The grantee still does not have an easement on the remainder of the land described in the granting instrument—it merely has a vested interest in such land to use it for the purposes authorized by the instrument.

An easement authorizes its holder to use another’s property only for a “particular purpose.” Marcus Cable, 90 S.W.3d at 700. Because “blanket easements” do not equate to easements over the entire property regardless of where a line is actually installed, instruments like the Easement Agreement grant the grantees the incidental right of ingress and egress so that the holder of the easement can reach the line it has installed. Here, the pipelines installed do not cover the entirety of Paul’s property. The right of ingress and egress expressly grants Atmos the incidental right to enter and exit the premises, including the portion were no pipeline is located, “for the purpose of constructing, inspecting, repairing, maintaining, ... replacing,” and “remov[ing]” each pipeline. See Egress, Black’s Law Dictionary (11th ed. 2019) (“The act of going out or leaving” and “The right or ability to leave; a way of exit”); Ingress, Black’s Law Dictionary (11th ed. 2019) (“The act of entering” and “The right or ability to enter; access”). So while “the right of way and easement” granted Atmos the right to “construct, maintain[,] and operate pipe lines and appurtenances thereto” over and through the 137-acre tract, the right of ingress and egress delineates the incidental purposes for which Atmos may enter Paul’s property under the grant (i.e., to construct, inspect, repair, maintain, replace, and remove the pipelines).

Accordingly, we reject Paul’s argument that interpreting the Easement Agreement to mean that additional lines laid under the grant are not tied to the location of Line W, the first line laid, renders the right of ingress and egress meaningless. Our interpretation continues to give effect to all terms in the grant, including the right of ingress and egress.

5. Paul’s interpretation impermissibly requires us to rewrite or ignore the compensation terms of the Easement Agreement.

*19 Paul next argues that the amount of compensation in the Easement Agreement (ninety dollars) supports his interpretation that the Easement Agreement provides for only a single corridor or path rather than “a grant of power to consume the entire 137 acres.” He cites Dwyer, 374 S.W.2d at 665–66. Paul also argues that the consideration of one dollar per lineal rod is a “pittance” and does not evidence an intent to give “the pipeline company the right to effectively take the entire property.” This is not persuasive.

First, the initial ninety dollars was the consideration that Lone Star Gas (Atmos’s predecessor) paid in exchange for the multiple pipeline blanket easement vesting it with an interest in the 137 acres and the installation of the first pipeline. Atmos must pay one dollar per lineal rod for each additional pipeline laid. By calling this subsequent consideration a “pittance,” Paul is essentially asking us to ignore or render meaningless this language, which we cannot do. See Smith, 251 S.W.3d at 823.

Second, Paul is taking his quotation from Dwyer, 374 S.W.2d at 666).

Third, Paul is overstating the implications of a multiple pipeline blanket easement, as we discuss more specifically below. Atmos is not “consum[ing] the entire 137 acres” or “effectively tak[ing] the entire property” by claiming the Easement Agreement is a blanket easement. Atmos merely has the right to determine a reasonable route for additional pipelines, if it installs additional lines under the Easement Agreement. Our ruling does not alter the fact that Atmos may not turn its nonpossessory interest in Paul’s property into a possessory one. See Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *9.

Accordingly, we reject Paul’s argument that the consideration set forth in the Easement Agreement requires us to interpret the grant as requiring all lines laid under it to be in the same corridor as Line W.

6. Paul’s interpretation impermissibly turns a damages provision into a controlling provision that limits the property that may be burdened by the Easement Agreement.

*20 Finally, Paul points to the language in the Easement Agreement requiring Atmos “to pay any damages which may arise to growing crops or fences from the construction, maintenance and operation of said pipe” to argue that the “parties only intended the easement to be a single lane through the back farmland” where it would “only impact crops or fences.” He contends that under Atmos’s reading, Atmos could lay a pipeline even through his house and barn. The implication that Paul draws from the damage provision is illogical and ignores the remaining language of the grant.

Paul cites no law supporting his position and provides no explanation as to why the damages provision should be given a controlling effect. Paul’s use of the damages provision is contrary to the well-established principle that no provision taken out of its context within all the agreement’s terms will be given controlling effect. See Coker, 650 S.W.2d at 393.

We recognize that “general provisions of the easement ... cannot override other, more specific provisions of the easement that spell out in detail the parties’ respective rights.” Smith, 251 S.W.3d at 823.

Further, the fact that the grantor is not required to maintain crops and fences in any specific location in perpetuity (when the property description contains no reference to crops and fences) bolsters our conclusion that this damages provision does not limit the location of pipelines. Interpreting this Easement Agreement as wedding the location of pipelines to the location of movable crops and fences is not reasonable because, among other reasons, it contains no description of where such crops and fences are located or that any such items even existed at the time. Moreover, Paul owns only a portion of the 137 acres. There is no summary-judgment evidence as to the location of any crops, fences, houses, or barns, if any, in 1960 anywhere along or within the 137 acres.13

Finally, the omission of houses and barns in the Easement Agreement’s damage provision cannot be construed as evidencing an intent that the pipelines be laid only where no such structures exist. “[E]asements must be construed most strongly against the grantor, and most favorably to the grantee, so as to confer the largest estate which a fair interpretation will permit.” 124 Tex. 190, 76 S.W.2d 471 (Tex. [Comm’n Op.] 1934) (“It is especially the rule applicable to the construction of grants that a deed will not be construed to create an estate on condition or limitation unless language is used which, according to the rules of law, from their own force, imports a condition or limitation or the intent of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated.”). Thus, if the parties intended to limit the location of pipelines to where the grantor had crops and fences, then they needed to state so expressly in the instrument. They did not.

*21 Accordingly, we reject Paul’s argument that the fact that the Easement Agreement requires the pipeline company to pay for damages only to “growing crops or fences” evidenced the original contracting parties’ intent that all pipelines laid under the grant would be in “a single lane through the back farmland.”

D. We can construe the Easement Agreement as a matter of law because it is not ambiguous.

Both parties assert that their interpretation of the Easement Agreement is the only reasonable one; neither party contends that the Easement Agreement is ambiguous. Paul, however, half-heartedly makes one ambiguity argument, which we must address.

Paul briefly contends “at worst ... the easement agreement is ambiguous” and cites Harrington to argue that the Easement Agreement is ambiguous, we disagree with that case’s holding.

The Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *8 (“The use of a general easement without a fixed width is a strategic decision that does not render an easement ambiguous or require a court to supply the missing term.” (citing Restatement (Third) of Property (Servitudes) § 4.10 (2000))).

In another section of his brief, Paul makes another argument suggesting that the Easement Agreement is ambiguous. He argues that the probate court’s ruling must be affirmed because Atmos “failed to challenge [his] construe-against-the-drafter ground for awarding judgment,” and he had argued in the probate court that any ambiguity must be resolved in his favor because Atmos drafted the agreement. We disagree. Paul moved for summary judgment on only a single ground: “As a matter of law, the 1960 Easement Agreement does not cover the New Pipeline.” Paul’s construe-against-the-drafter argument was merely a rule of construction that he advanced in connection with his ambiguity arguments; it was not an independent ground for summary judgment. Atmos adequately addressed this argument in its opening brief by arguing that the Easement Agreement is not ambiguous and that easements are to be construed most strongly against the grantor, and most favorably to the grantee, so as to confer the largest estate that a fair interpretation will permit. See Gladewater, 59 S.W.2d at 354. As Atmos also points out on appeal, there is no summary-judgment evidence demonstrating who drafted the agreement to support Paul’s argument.

*22 Accordingly, we reject Paul’s ambiguity argument and conclude as a matter of law that the Easement Agreement is not ambiguous because it can be given a certain, definite meaning and is susceptible of only one reasonable interpretation. For all the reasons set forth above, Paul’s predecessors-in-title agreed to a multiple pipeline blanket easement. Atmos is authorized to install Line WD, an additional line, under the Easement Agreement, and the new line’s location is not defined by the location of Line W, the first line laid. See Sw. Elec. Power Co., ––– S.W.3d at ––––, 2020 WL 960993, at *8 (“Consistent with the recognition of general easements in Texas, courts have long been reluctant to write fixed widths into easements when the parties to the easements never agreed to a particular width.”).

E. Because the Easement Agreement is not ambiguous, we cannot look to extrinsic evidence to vary its terms or to create an ambiguity. The parties’ disputes about the location of Line X and statements made by an Atmos agent regarding the width of an easement are irrelevant.

In an attempt to support his interpretation of the Easement Agreement, Paul goes beyond its four corners to argue that evidence of Atmos’s past conduct evidences the “parties’ intended meaning of the agreement.” Specifically, he argues that “the use of the pipeline easement confirms the parties’ intended meaning of the agreement.” He points to the installation of Line W along the southern boundary of his property in 1960, the alleged more recent statements of Atmos’s agent about the easement being a fifty-foot strip of land running with Line W and that Paul could not build dog kennels within that strip, and the installation of Line X ten feet away from and parallel to Line W. Other than the location of Line W, Atmos disputes these facts.

The evidence on which Paul relies is inadmissible parol evidence because, as we conclude above, the Easement Agreement is not ambiguous. See Kachina Pipeline Co. v. Lillis, 471 S.W.3d 445, 453 (Tex. 2015) (op. on reh’g) (rejecting a party’s acquiescence to disputed fee as informing the meaning of a disputed contract term because “[a] party’s interpretation of an agreement is parol evidence and cannot be used to create ambiguity or show motive”).

*23 Thus, facts about the location of Line X and statements made by an Atmos agent about the width of the easement are not admissible to ascertain the intent of the parties, to create an ambiguity, or to vary the terms of the Easement Agreement. See Nat’l Union Fire Ins. Co., 907 S.W.2d at 520. This evidence is immaterial, and we cannot consider it when interpreting the Easement Agreement.

Moreover, the evidence relating to the location of Line X and the statements of an Atmos agent would not change the outcome even if it had been uncontroverted, although it was. At the time the Atmos agent supposedly told Paul that the easement was a fifty-foot strip of land running with Line W, the only pipeline that Atmos had installed at that time was Line W. Under Paul’s evidence, Atmos installed Line X after these events. At best, the agent’s comments were nothing more than evidence of his understanding about the width of the easement that Atmos claimed was reasonable and necessary to maintain and operate Line W. It was not a comment about the width of an easement with respect to any other pipelines because no other Atmos pipelines existed yet. His statements do not constitute limitations on Atmos’s rights under the Easement Agreement, nor do they demonstrate that what Atmos did later with respect to Line WD contradicted what the agent said.

The same is true with respect to Line X. Even if the evidence had been uncontroverted that Atmos installed a new Line X ten feet away from and parallel to Line W, it would not mean that Atmos had no right to lay Line X, Line WD, or any other line on any other reasonable location on Paul’s land under the Easement Agreement. As the Supreme Court of Texas has acknowledged, a grant may give a grantee a right in excess of the one actually used. See Kachina Pipeline Co., 471 S.W.3d at 453. The language of the Easement Agreement still controls the scope of the conveyance.

Accordingly, we reject Paul’s argument that Atmos’s alleged prior actions (in installing Line X along the same path of Line W and in stating, through an agent, that its easement was fifty-feet wide) may be used to interpret the Easement Agreement as limiting the location of Line WD to the same corridor as Line W. The evidence is inadmissible to vary the terms of the Easement Agreement or to create an ambiguity because the grant is unambiguous.

F. Paul’s arguments about whether Atmos may “spiderweb” or “consume” his property are not persuasive.

Like in the probate court, on appeal Paul makes numerous statements about the potential consequences of reversing the probate court’s summary-judgment ruling. He argues that under Atmos’s interpretation, “it has the right to take all of Paul’s property,” it may create a “spiderweb covering the entire property,” that his predecessors-in-title “implicitly gave away the farm[ ] and the ability to develop it,” and that Atmos may “lay its pipelines anywhere on Paul’s property, even through Paul’s house and barn.” He further contends,

Atmos’s spiderweb reading ... would have terrible implications far beyond this case. Landowners across Texas would wake up to find that decades-old easement agreements ... prevent them from developing their property, ... decimate the value of their land, ... render their land unsuitable as collateral for loans, and ... give pipeline companies a massive windfall by enabling them to lay new lines along new routes for pocket change.14

*24 Other than citing Section 111.0194(a) of the Texas Natural Resource Code, Paul cites no authority to support his predictions.15 We do not consider these arguments relevant or persuasive.

We are sympathetic to Paul’s concerns. But we are guided by long-standing precedent of Texas law governing multiple pipeline blanket easements. We must be wary of working a sea change in precedent, especially one that disturbs the principles of property law. See Couch v. S. Methodist Univ., 10 S.W.2d 973, 974 (Tex. Comm’n App. 1928, judgm’t adopted) (“[P]ublic policy ... favors the utmost liberty of contract and freedom of land titles from conditions or restrictions which would work a forfeiture or materially impair their values.”). Our interpretation of the Easement Agreement changes nothing about the status of that law.

Paul’s protection comes from the fact that Atmos remains bound by Texas’s version of the rule of reasonableness, which we discuss above. 374 S.W.2d at 665.16

*25 This court is precluded from rendering void by judicial decree the rights Paul’s predecessors granted to Atmos. It is the function of the legislature to declare the public policy of this state.17 See Town of Flower Mound v. Stafford Estates Ltd. P’ship, 135 S.W.3d 620, 628 (Tex. 2004) (“Generally, the State’s public policy is reflected in its statutes.” (quotation marks omitted)). Our interpretation of the Easement Agreement is consistent with well-established Texas law governing property rights, contract interpretation, and the freedom of contract.

We cannot alter the express terms of the Easement Agreement based on Paul’s fears about a hypothetical future. It is not the function of this court to judicially insert a limitation upon the location of all pipelines that may be (or have already been) laid under all easements worded like the Easement Agreement, let alone to do so retroactively. Today, we are asked to decide only whether Paul conclusively established that he did not breach the agreement as a matter of law by refusing Atmos access to his property to install Line WD.

Accordingly, for all the foregoing reasons, we hold that as a matter of law, the plain language of the Easement Agreement unambiguously evidenced the original contracting parties’ intent for the grantor to convey to the grantee a multiple pipeline blanket easement that does not require all pipelines laid under the grant to be laid in the same corridor as the first line laid.

G. Paul did not conclusively establish that Atmos’s installation of Line WD unreasonably burdens his property.

*26 We now turn to the question of whether Paul conclusively established that the route selected by Atmos for Line WD unreasonably burdens his property. See San Jacinto Sand Co., 426 S.W.2d at 344–45. We conclude that (1) Paul did not raise this issue in his summary-judgment motion and (2) even if he had, he did not carry his summary-judgment burden.

Paul based his motion solely on his contention that the Easement Agreement does not cover Line WD—a position that we reject above. When Paul moved for summary judgment, he did not argue in the alternative that if the Easement Agreement permits Atmos to install Line WD outside the corridor of Line W, then the location of Line WD unreasonably burdens his estate. Paul raised his unreasonable-burden argument for the first time in his summary-judgment reply. But “new grounds for summary judgment asserted by a movant in a reply ... are not properly considered on appeal.” Sanchez v. Mulvaney, 274 S.W.3d 708, 711 (Tex. App.—San Antonio 2008, no pet.) (“[A] movant may not use a reply brief to meet the specificity requirement or to assert new grounds for summary judgment.”). Because we resolved the interpretation question against Paul and because Paul did not address the reasonableness question in his motion, he failed to conclusively establish as a matter of law that he did not breach the Easement Agreement by denying Atmos access to install Line WD. Thus, we conclude that the trial court erred by granting a take-nothing summary judgment against Atmos.

We reach the same result even if we construe the arguments in Paul’s summary-judgment motion as fairly including a challenge to whether Line WD unreasonably burdened his property. He submitted an affidavit wherein he referred to a map showing Line WD’s location on his property:

He then simply testified by affidavit, “the location of [Line WD] severely impacts [his] ability to develop the [p]roperty to its highest and best use,” without explanation.

Paul’s testimony is not competent summary-judgment evidence because it is conclusory. See Jimmie Luecke Children P’ship, Ltd. v. Pruncutz, No. 03-03-00388-CV, 2005 WL 910144, at *3 (Tex. App.—Austin Apr. 21, 2005, pet. denied) (mem. op.) (holding that affiant’s statement that “the highest and best use of the property would be to maintain it as one large tract” was conclusory because it presented “his subjective beliefs and conclusions without providing supporting facts”). Paul did not submit any summary-judgment evidence on any attempted development of his property that was thwarted by Line WD. To the contrary, the summary-judgment evidence reflects that pursuant to the PUA (which is not part of the record), Paul allowed Atmos access to his property to install Line WD after Atmos filed suit.18

*27 Moreover, the Miller affidavit offered controverting testimony explaining the many factors that Atmos considered when deciding upon the route of Line WD, including—as Paul’s own image shows—planning around obstacles such as Paul’s barn and home. Thus, even if Paul did submit competent summary-judgment evidence, a genuine issue of material fact existed regarding the reasonableness of route Line WD, precluding summary judgment on this basis. See Van, 990 S.W.2d at 753.

For the above reasons, we conclude that Paul did not meet his initial summary-judgment burden to conclusively establish as a matter of law that Line WD unreasonably burdens his property. Tex. R. Civ. P. 166a(b), (c).

Because the Easement Agreement does not require Line WD to be laid in the same corridor as Line W, and because Paul failed to conclusively establish that the route of Line WD unreasonably burdens his property as a matter of law, we conclude that the probate court erred by granting summary judgment and rendering a take-nothing judgment against Atmos. We sustain Atmos’s sole issue.

Atmos requests that we remand this case for further proceedings. Accordingly, we will reverse the judgment of the probate court and remand this case for further proceedings.

VII. CONCLUSION

Having sustained Atmos’s sole issue, we reverse and remand this case to the probate court for proceedings consistent with this opinion.

Footnotes

1 The Honorable Ruben Gonzalez, Jr., Judge of the 432nd District Court of Tarrant County, sitting by assignment of the Chief Justice of the Texas Supreme Court pursuant to Tex. Gov’t Code Ann. § 74.003(h).
2 We draw these allegations and facts from the parties’ live pleadings and the summary-judgment evidence. We refer to allegations in the pleadings only to more clearly outline the context for this dispute; we do not consider them evidence supporting summary judgment. See Laidlaw Waste Sys. (Dall.), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995).
3 The blue lines depict a pipeline owned by an unrelated entity.
4 Atmos initially asserted a claim for violations of the Texas Utilities Code and requested a temporary injunction. It nonsuited these claims after the parties entered into the PUA. Atmos also asserted an alternative claim for condemnation; the parties agreed to sever that claim into a separate action pursuant to the PUA.
5 The probate court sustained Atmos’s objection to excerpts from Paul’s deposition that Paul untimely filed on the day of the summary-judgment hearing. Paul does not challenge this ruling on appeal. Thus, we do not consider these excerpts on appeal.
6 Paul also cited Tex. Nat. Res. Code Ann. § 111.0194. We address this statute in our discussion below.
7 Atmos filed excerpts from Paul’s deposition wherein he had called the easement a “blanket easement.” It also attached Paul’s responses to Atmos’s request for admissions wherein Paul had admitted that “the Easement does not purport to expressly provide for a defined area on the [property] in which a pipeline must be laid.”
8 Paul erroneously requested summary judgment on Atmos’s claim for declaratory judgment in his summary-judgment motion; but Atmos asserted no such claim. Paul likewise did not assert a declaratory-judgment claim and, consequently, did not request that the probate court make any specific declarations in his summary-judgment motion.
9 See also Megan M. Cunningham & Thomas J. Dougherty, Unbounded Interests: The Limits of Blanket Easements, Pratt’s Energy Law Report, Jun. 2018, Vol. 18-6 at 184 (citing Law Easements, § 7.4 (2018)).
10 On March 2, 2020, Atmos filed Appellant’s Unopposed Motion for Leave to File Post-Submission Letter Brief Regarding New Opinion from the Texas Supreme Court, requesting leave to file a post-submission letter brief to apprise this court of Southwestern Electric Power Company. Because this opinion addresses that case, the motion is denied.
11 The same is true even if we assume that Atmos installed Line X parallel with and ten feet south of Line W, as Paul contends.
12 Paul cites no “authority” for this proposition and instead offers an illustration by quoting a song: “Over the river, and through the wood, to Grandmother’s house we go; the horse knows the way to carry the sleigh through the white and drifted snow.” His analogy is both unhelpful and inapt. Among other things, while a horse carrying a sleigh may make or follow a path along its journey, neither the making nor following of a path defines “over” and “through.” The horse may make or follow any path “over” the river and “through” the woods, including by making or following a spiderwebbed path, by making or following one of many different paths, or by making a new path.
13 Some instruments may specify a location for an easement by referencing movable objects or landmarks, such as a fence, existing at the time of the grant. Nothing in our opinion should be construed as rendering such easements invalid or ambiguous.
14 The Texas Farm Bureau filed an amicus brief arguing that Atmos’s theory of easement interpretation is unreasonable because it “threatens countless Texas landowners with the possibility [and extreme degrees of uncertainty and unpredictability] that new pipelines can pop up anywhere on their property at any time” without fair compensation, if any.
15 id. § 111.0194(a). The plain language of the statute does not retroactively render void multiple pipeline blanket easements or require all pipelines laid under such an easement to be laid within the same fifty-foot-wide corridor.
16 See Vinson v. Brown, 80 S.W.3d 221, 228 (Tex. App.—Austin 2002, no pet.) (same).
17 Some states have passed legislation prohibiting or inhibiting blanket easements created after a certain date. See, e.g., Tex. Nat. Res. Code Ann. § 111.0194.
18 Paul admitted in response to a request for admission, “Atmos currently uses part of [his] land under [the PUA] that is conditioned on the Court’s rulings on Atmos’s right to use the land, either under the Easement (as Atmos contends) or through its power of eminent domain (which [Paul] insists is the only possible basis for Atmos’s continued use of the land).”

Court of Appeals of Texas, Fort Worth.

TARRANT COUNTY, Texas, Appellant

v.

Tony Lee GREEN, Appellee

No. 02-19-00159-CV

|

Delivered: October 24, 2019

|

Rehearing Denied November 14, 2019

On Appeal from the 141st District Court, Tarrant County, Texas, Trial Court No. 141-294259-17

Attorneys & Firms

Niles Illich, for Green, Tony Lee.

Christopher Taylor, Kimberly Colliet Wesley, for Tarrant County, Texas.

Before Wallach, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Chief Justice Sudderth

*1 Appellee Tony Lee Green sued Appellant Tarrant County, Texas, alleging in his original petition that while he was in the Tarrant County Jail, Corporal James Davis, a sheriff’s department employee, pointed a laser temperature gun directly at Green’s left eye.1 Green alleged that Corporal Davis had been acting in the course and scope of his county employment when he “negligent[ly] use[d]” the laser temperature gun and referenced the Texas Tort Claims Act (TTCA). See Tex. Civ. Prac. & Rem. Code Ann. §§ 101.001(2), .002, .021. Green specifically “denie[d] and disavow[ed] any claim or allegation that the damages [he] suffered ... [were] the result of any intentional tort.” See id. § 101.057(2) (stating that the TTCA does not apply to a claim “arising out of assault, battery, false imprisonment, or any other intentional tort”).

Tarrant County filed a plea to the jurisdiction in which it argued that the trial court lacked subject matter jurisdiction because—among other things—Green had pleaded an intentional tort and it is immune from suit for intentional torts. See id. To its plea, Tarrant County attached a portion of Green’s deposition in which, when asked whether he believed that Corporal Davis had accidentally used the laser on his eye, Green replied,

I don’t think so. Again, I don’t think that he intended to do me harm, but I believe that he intended to shine it at me. It was a little bit too direct and he was just way too close for it to have been an absolute accident.

....

So I don’t -- I -- to answer your question just dead on, no, I don’t think it was an accident. I believe the injury was an accident. I don’t think he intended to do it, like, to harm me.

Green responded that Tarrant County’s interpretation of the intentional-tort exception would “effectively eviscerate the Legislature’s express waiver of sovereign immunity for the negligent use or misuse of tangible personal property” and was unjust and unreasonable outside the context of an arrest. Green asserted that although Corporal Davis’s decision to point the laser at Green—a person not under arrest and already in custody—was intentional, a rational jury could conclude that his decision to point it at Green’s eye was negligent. Green attached Corporal Davis’s deposition to his response. In the deposition, Corporal Davis denied any interaction with Green that involved pointing the laser at him, but he admitted he could have pointed it in Green’s direction.

At the hearing on Tarrant County’s plea, Green argued that there was no implicit battery because no intentional contact was made and that the officer did not intend to hurt him because he did not understand that the laser was hazardous.2 Green acknowledged that he had not brought a failure-to-train claim.3 The trial court denied Tarrant County’s plea.

*2 In a single issue, Tarrant County brings this interlocutory appeal, arguing that the trial court erred as a matter of law by denying its plea to the jurisdiction because Corporal Davis committed an intentional tort and because Green did not allege a claim involving a condition or use of the county’s tangible personal property. See id. § 51.014(a)(8). Green responds that to commit either an assault or a battery,4 there must be an intentional act accompanied by an intent to create a harmful or offensive contact and admits that while there was an intentional act, Corporal Davis had no intent to commit a harmful or offensive contact.

A plea to the jurisdiction challenges the trial court’s authority to determine an action’s subject matter. Tex. Nat. Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

When a plea to the jurisdiction challenges the pleadings, we determine if the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the cause, construing the pleadings liberally in the plaintiff’s favor and looking to the pleader’s intent. Id. at 226–27.

If, however, a plea to the jurisdiction challenges the existence of jurisdictional facts, we consider relevant evidence submitted by the parties when necessary to resolve the jurisdictional issues raised, taking as true all evidence favorable to the nonmovant, indulging every reasonable inference, and resolving any doubts in the nonmovant’s favor. Id. at 228.

*3 The State and its political subdivisions are generally immune from suit and liability absent a constitutional or statutory waiver of their immunity. See Univ. of Tex. Med. Branch v. York, 871 S.W.2d 175, 177 (Tex. 1994) (“Under the doctrine of sovereign immunity, the State is not liable for the negligence of its employees absent constitutional or statutory provision for liability.”).

Section 101.021 of the TTCA, “Governmental Liability,” expressly waives a governmental unit’s immunity from suit for personal injury

proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

(A) the ... personal injury ... arises from the operation or use of a motor-driven vehicle or motor-driven equipment; and

(B) the employee would be personally liable to the claimant according to Texas law; and

... personal injury ... so caused by a condition or use of tangible personal ... property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.

McKenzie, 578 S.W.3d at 513.

Tarrant County refers us to Gordon in support of its argument that Green’s claim reflects an intentional tort that falls outside of the TTCA’s limited immunity waiver. In Gordon, the court considered handcuff-related injuries suffered by a drunk-driving suspect and determined that, although the injuries had been accidentally caused, and although the complainant alleged that the officers’ use of handcuffs had been negligent and that they had not intended to injure him, the cause of action was for an intentional tort (battery) rather than negligence; thus, the TTCA’s limited waiver did not apply. 434 S.W.3d at 587–89, 591–92.

Gordon had argued that because the injury was accidental, it had to have been the result of negligence. Id. at 588, 594.

*4 Green responds that Gordon does not apply here because nothing indicates that Corporal Davis intended a harmful or offensive contact that would establish an assault or a battery and that the evidence creates a fact issue as to jurisdiction.

The record reflects that Green alleged the negligent infliction of an injury and specifically disavowed any intentional tort in his pleadings, and in his deposition, he stated that he did not believe that the officer had intended to harm him, although he thought that the officer had intended to shine the laser in his eye. Corporal Davis denied any such action. Green argues that his pleadings establish a negligence cause of action, not an intentional tort disguised as a negligence claim, and that viewing his pleadings liberally, nothing indicates that Corporal Davis intended a harmful or offensive contact or Green’s immediate apprehension thereof. See Gordon, 434 S.W.3d at 589–90 (explaining that Texas civil courts have melded the common law concepts of assault and battery under assault’s rubric).

While the fundamental difference between a negligent injury and an intentional injury is the specific intent to inflict injury, 434 S.W.3d at 592. Thus, the fact that Corporal Davis did not intend to hurt Green, assuming that he pointed the laser temperature gun at Green, does not preclude the gravamen of Green’s claim from setting forth an intentional tort. See id.

Green alleged that Corporal Davis intentionally caused a physical contact with him in response to his joke, “He’s got a [T]aser, please don’t tase me!” And he alleged that the physical contact (via the laser) harmed him. The gravamen of these allegations constitute a common law battery claim because the contact—either offensive or provocative—was an intentional act made in response to Green’s own provocative statement. See City of Fort Worth v. Deal, 552 S.W.3d 366, 368–69 (Tex. App.—Fort Worth 2018, pet. denied) (holding that a sufficiently close connection between the deceased’s person and his vehicle existed such that an unknown police officer’s deployment of a tire-deflation device that caused the vehicle to crash constituted a battery). Because the gravamen of Green’s complaint is an intentional tort, the limited TTCA immunity-waiver does not apply, and the trial court erred by denying Tarrant County’s plea to the jurisdiction.

Accordingly, we sustain this portion of Tarrant County’s sole issue and do not reach its “use” argument. See Tex. R. App. P. 47.1. We reverse the trial court’s order denying Tarrant County’s plea to the jurisdiction and render a judgment of dismissal.

Footnotes

1

Green alleged that when he saw Corporal Davis with the laser temperature gun, he jokingly said, “He’s got a [T]aser, please don’t [T]ase me!”

2

The trial judge indicated that he understood Green’s argument, stating, “I intend to drive my car to work, and I may be negligent while I’m intending to drive here.”

3

Corporal Davis stated in his deposition that he had never seen the temperature device’s instruction manual and that his training to use the device had been by “[w]ord of mouth.” When shown the manual, he acknowledged that it contained a warning that said, “Laser light, do not stare into the beam,” but he said that he had been taught that the device was not dangerous and that, when he asked the medical staff if the device could damage someone’s eye, he was told no. He asked the medical staff about it when he took Green to see the jail’s medical staff after Green complained about his eye.

4

Under the Penal Code, a person can commit an assault (1) by intentionally, knowingly, or recklessly causing bodily injury to another; (2) by intentionally or knowingly threatening another with imminent bodily injury; or (3) by intentionally or knowingly causing physical contact with another when he “knows or should reasonably believe that the other will regard the contact as offensive or provocative.” 434 S.W.3d 586, 590 (Tex. 2014).

Court of Appeals of Texas, Fort Worth.

HAWK STEEL INDUSTRIES, INC., Appellant

v.

Willie James STAFFORD, Jr., Appellee

No. 02-19-00040-CV

|

Delivered August 15, 2019

On Appeal from the 236th District Court, Tarrant County, Texas, Trial Court No. 236-302552-18, Hon. Thomas Wilson Lowe, III, Judge.

Attorneys & Firms

R. Michael Perez, Owen & Fazio, P.C., Dallas, TX, for Appellant.

Bart Behr, Behr Law Firm, Wimberley, TX, for Appellee.

Before Birdwell, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Chief Justice Sudderth

*1 Appellant Hawk Steel Industries, Inc., appeals the trial court’s order denying its request to compel arbitration. Because Hawk failed to show that Stafford’s claims are subject to a valid arbitration agreement, we hold that the trial court did not abuse its discretion and affirm the trial court’s order.

Background

Stafford, an employee of Hawk, a nonsubscriber to workman’s compensation, filed suit against Hawk alleging that he suffered an on-the-job injury while unloading a truck. Hawk answered and moved to compel arbitration. In support of its motion, Hawk attached a business records affidavit that authenticated three documents as records made and retained by Hawk in the regular course of business:

(1) a document entitled “Receipt of SPD and Mutual Agreement to Arbitrate Acknowledgment” (Receipt and Acknowledgment),

(2) the “Summary Plan Description” of Hawk’s occupational injury employee benefit plan (SPD), and

(3) a “Mutual Agreement to Arbitrate” (MAA).

The Receipt and Acknowledgment states in full:

RECEIPT OF SPD AND MUTUAL AGREEMENT TO ARBITRATE ACKNOWLEDGEMENT

RECEIPT OF MATERIALS. By my signature below, I acknowledge that I have received and read (or had the opportunity to read) the Summary Plan Description (the “SPD”) for the Hawk Steel Industries, Inc. Occupational Injury Employee Benefit Plan, effective March 1, 2008.

ARBITRATION. I also acknowledge that this SPD includes a mandatory company policy requiring that certain claims or disputes relating to an on-the-job injury (that cannot otherwise be resolved between the Company and me) must be submitted to an arbitrator, rather than a judge and jury in court. I understand that by receiving this SPD and becoming employed (or continuing my employment) with the Company at any time on or after March 1, 2008, I am accepting and agreeing to comply with these arbitration requirements. I understand that the Company is also accepting and agreeing to comply with these arbitration requirements. All covered claims brought by my spouse, children, beneficiaries, representatives, executors, administrators, guardians, heirs or assigns are also subject to the SPD’s arbitration policy, and any decision of an arbitrator will be final and binding on such persons and the Company. [emphasis added]

Except for the title of the document, the Receipt and Acknowledgment does not reference any document entitled “Mutual Agreement to Arbitrate.” The SPD, which is specifically referenced, does not address arbitration for on-the-job injuries.1

Hawk argues that the terms of the arbitration agreement are set out in the MAA. The MAA filed by Hawk provides for an effective date of March 1, 2008, and would purport to cover on-the-job-injury disputes. However, Hawk provided no evidence that the MAA it produced was the same MAA that is referenced in the title of the Receipt and Acknowledgement or the MAA that governs this dispute. Neither Hawk nor Stafford are identified anywhere in the MAA. Instead, the MAA defines the agreement as between the “Company” and the “Claimant” and defines “Company” as an entity listed on an attached “Schedule A.” But there are no schedules attached to the version of the MAA submitted by Hawk in support of its motion.

*2 While Stafford admitted that he had signed the Receipt and Acknowledgment and received the SPD, he denied ever having received or been notified of the existence of the MAA. Stafford also asserted that Hawk had objected to and refused to answer Stafford’s discovery requests seeking information about Stafford’s receipt of the MAA and whether the MAA was part of the SPD.

At the hearing on Hawk’s motion to compel arbitration, no witnesses testified and no additional evidence was offered or admitted. After the trial court denied Hawk’s motion to compel arbitration, this appeal followed. See Tex. Civ. Prac. & Rem. Code Ann. § 171.098.

Discussion

Although framed as two separate issues, Hawk’s argument on appeal is that the trial court abused its discretion by denying its motion to compel arbitration because Stafford was bound by the terms of the MAA that was attached to Hawk’s motion. We disagree. Hawk neither met its evidentiary burden of establishing the contents of the MAA referenced in the Receipt and Acknowledgement nor established that Stafford’s claims could be subject to arbitration based solely on the arbitration paragraph of the Receipt and Acknowledgment. Thus, the trial court did not abuse its discretion by denying the motion to compel arbitration.

I. Standard of review and applicable law

We review a trial court’s ruling on a motion to compel arbitration for an abuse of discretion. Doe v. Columbia N. Hills Hosp. Subsidiary, L.P., 521 S.W.3d 76, 80 (Tex. App.—Fort Worth 2017, pet. denied). Whether a valid arbitration agreement exists is a question of law that we review de novo. Id. at 80–81.

In the trial court, motions to compel arbitration are treated somewhat similarly to motions for summary judgment. Id. at 81 (citing In re Estate of Guerrero, 465 S.W.3d 693, 700 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)).

As the party seeking to compel arbitration, Hawk bore the burden to establish the existence of a valid arbitration agreement. Wetzel v. Sullivan, King & Sabom, P.C., 745 S.W.2d 78, 81 (Tex. App.—Houston [1st Dist.] 1988, no pet.).

*3 Once the existence of a valid arbitration agreement has been established, we apply traditional contract principles to interpret the agreement. Fox v. Thoreson, 398 S.W.2d 88, 92 (Tex. 1966)).

II. No evidence of notice or receipt of MAA

Hawk argues that the parties agreed to arbitrate claims related to on-the-job injuries and that Stafford’s signature on the Receipt and Acknowledgment clearly establishes that Stafford received and accepted the terms of the MAA. Yet, other than in the title of the document itself, the Receipt and Acknowledgment makes no reference to a document entitled “Mutual Agreement to Arbitrate.”

To interpret the Receipt and Acknowledgment, we need look no further than the plain words used by the parties. See Stine v. Stewart, 80 S.W.3d 586, 589 (Tex. 2002).

The title of the one-page Receipt and Acknowledgment is “Receipt of SPD and Mutual Agreement to Arbitrate Acknowledgment.” Hawk argues that the title should be read to expressly reference Stafford’s receipt of the MAA as a separate document. But we must read the title in the context of the content of the document. See RSUI Indem. Co. v. The Lynd Co., 466 S.W.3d 113, 121 (Tex. 2015) (explaining that while courts may consider the title of a contract provision or section to interpret a contract, “the greater weight must be given to the operative contractual clauses of the agreement”). Below the title, the first paragraph is labeled “Receipt of Materials” and states that Stafford has received and read the SPD, which is a capitalized, defined term in the document. It does not state that Stafford has received the MAA; in fact, it makes no mention of the MAA at all or attempt to define the MAA.

To make up for this, Hawk relies on the second paragraph, titled “Arbitration.” It states:

I also acknowledge that this SPD includes a mandatory company policy requiring that certain claims or disputes relating to an on-the-job injury (that cannot otherwise be resolved between the Company and me) must be submitted to an arbitrator, rather than a judge and jury in court. I understand that by receiving this SPD and becoming employed (or continuing my employment) with the Company at any time on or after March 1, 2008, I am accepting and agreeing to comply with these arbitration requirements.

Certainly in this paragraph Stafford acknowledges that the SPD contains an arbitration provision as to certain claims or disputes relating to on-the-job injuries. And in the sentence that follows, Stafford acknowledges that he agrees to comply with the arbitration requirements in the SPD. But the SPD actually contains no provision regarding arbitration of injury claims.

The SPD is 21 pages long and contains no reference to the MAA. The only mention of arbitration within the SPD is a provision that if an employee disagrees with a determination of ERISA benefits, the disagreement is subject to nonbinding arbitration prior to filing a civil action. The SPD refers to and includes only one appendix, which provides notice in compliance with the Health Information Portability and Accountability Act (HIPAA).

*4 Nor does the MAA contain any reference to the SPD. And the MAA and the SPD do not appear to be part of the same document. The format of the SPD differs from that of the MAA: the SPD is formatted in a single column while the MAA is written in two columns; the SPD is written in a different font than the MAA; section headings in the SPD are in bold, capitalized letters and centered on the page, while the section headings in the MAA are underlined and left-justified; every page of the SPD—including the appendix—includes a footer that states, “Summary Plan Description of the Occupational Injury Employee Benefit Plan,” while the MAA’s footer states “Copyright 2003 Gibson, McClure, Wallace & Daniels, L.L.P.” Finally, the MAA is completely divorced from the SPD, making no mention of the SPD, of Hawk, or of Stafford. While it identifies a “Company” and defines it as the entity set forth on “Schedule A” to the MAA, no such schedule was attached to the version of the MAA that was filed as part of Hawk’s motion to compel arbitration. Indeed, the only commonality the SPD and MAA appear to share is their effective dates of March 1, 2008.

Stafford agreed that “by receiving th[e] SPD and becoming employed (or continuing [his] employment) with the Company at any time on or after March 1, 2008, [he was] accepting and agreeing to comply with these arbitration requirements.” In other words, Stafford agreed to accept and comply with the ERISA arbitration provisions provided for in the SPD. But Stafford’s agreement as to the SPD provides no evidence that he agreed to or had any notice of the MAA which was offered by Hawk in support of its motion to compel arbitration.

Other than offering the MAA into evidence through a business records affidavit, Hawk provided no additional evidence that Stafford received or otherwise had notice of the MAA in question. See Big Bass Towing Co. v. Akin, 409 S.W.3d 835, 840 (Tex. App.—Dallas 2013, no pet.) (rejecting argument that employee had notice of arbitration agreement based on affidavit which claimed that agreement was discussed at a company meeting but provided no basis for the affiant’s personal knowledge and did nothing to establish employee attended meeting).

These facts are strikingly similar to those in Big Bass Towing, a case decided by our sister court in Dallas. In that case, the employer argued that the employee acknowledged and agreed to the existence of a binding arbitration policy to resolve all workplace injury disputes. Id. at 837. The employer argued that its “Occupational Injury Employee Benefit Plan” (of which the employee did not dispute he had notice) and “Mutual Agreement to Arbitrate” were one document. Id. at 839. The Dallas court determined that the employer had not established that the Mutual Agreement to Arbitrate was part of the Occupational Injury Employee Benefit Plan and noted that the employee benefit plan made no mention of the agreement to arbitrate; that the only reference to arbitration in the benefit plan related to ERISA disputes; that the benefit plan was formatted in a single column whereas the arbitration agreement was formatted in a two-column layout; that the benefit plan utilized a different font than the arbitration agreement; that the benefit plan included a footer that stated, “Occupational Injury Employee Benefit Plan,” whereas the arbitration agreement included a footer that stated, “Copyright 2003 Gibson, McClure, Wallace & Daniels, L.L.P.”;3 and that the last five pages of the benefit plan were an appendix regarding HIPAA requirements. Id. at 839–40. The employer also argued that the two documents were related because they both had the same effective dates. Id. at 840. The Dallas court summarily rejected this argument, stating, “The fact that two documents have the same effective date does not imply they are the same document or otherwise related.” Id. The court concluded that the arbitration agreement and the benefit plan were separate documents, and “for purposes of notice, any reference to the occupational benefits injury plan did not provide notice of the arbitration agreement.” Id.

*5 Likewise, we conclude that any reference in the Receipt and Acknowledgment to the SPD did not provide notice of the MAA. Hawk offered no evidence at trial that would support a conclusion that the MAA was part of the SPD and thereby incorporated into the Receipt and Acknowledgment.4 Their matching effective dates do not alone conclusively render them as one document. See id. We therefore reject Hawk’s argument that the Receipt and Acknowledgment established that Stafford agreed to or had notice of the terms of the MAA.

III. Ambiguous arbitration paragraph

To the extent that Hawk argues that the arbitration paragraph of the Receipt and Acknowledgment itself constitutes an arbitration agreement that covers Stafford’s claims, that argument fails because that paragraph is ambiguous as to which claims are subject to arbitration. The question of arbitrability of a claim or dispute is a threshold matter for the court to decide. J.M. Davidson, 128 S.W.3d at 231 (“While we generally favor arbitration agreements, we should not reflexively endorse an agreement so lacking in precision that a court must first edit the document for comprehension, and then rewrite it to ensure its enforceability.”). We therefore hold that the trial court did not abuse its discretion by denying Hawk’s motion to compel arbitration.

Conclusion

Having held that Hawk has failed to establish that Stafford’s claims are subject to a valid arbitration agreement, we affirm the trial court’s order denying arbitration.

Footnotes

1

The only time arbitration is mentioned in the SPD is in reference to filing suit under section 502(a) of ERISA. See 29 U.S.C.A. § 1132(a)(1)(B).

2

In fact, Stafford testified through his affidavit that he had “never seen, read[,] or received a copy of the [MAA].”

3

It appears the same form arbitration agreement was used in both cases.

4

We further note that Hawk made no effort to show that the version of the MAA submitted at trial was still in effect at the time of Stafford’s injury.

Court of Appeals of Texas, Fort Worth.

Kyle TAWIL, Appellant

v.

COOK CHILDREN’S HEALTHCARE SYSTEM, Appellee

No. 02-18-00298-CV

|

Delivered: May 30, 2019

*674 On Appeal from the 236th District Court, Tarrant County, Texas, Trial Court THOMAS WILSON LOWE, III, Judge

Attorneys & Firms

ATTORNEY FOR APPELLANT: ERIC H. MARYE, THE MARYE LAW FIRM, DALLAS, TEXAS.

ATTORNEYS FOR APPELLEE: PAIGE P. BIGGS, KELLY HART & HALLMAN LLP, FORT WORTH, TEXAS.

Before Bassel, JJ.

OPINION

Opinion by Justice Bassel

I. Introduction

After Appellant Kyle Tawil’s employment as a rehabilitation technician with Appellee Cook Children’s Healthcare System ended, Tawil sued, claiming that Cook Children’s terminated his employment in retaliation for filing a workers’ compensation claim. Cook Children’s responded with a combined traditional and no-evidence motion for summary judgment. The trial court granted the motion. Tawil appealed.

Cook Children’s presented a legitimate reason why it terminated Tawil’s employment—he repeatedly violated a hospital policy that required him to notify his supervisor if he would not be reporting to work. The summary-judgment record does not raise a fact issue to support Tawil’s claim that Cook Children’s claimed reason *675 to terminate his employment was a pretext and that it fired him in retaliation for having filed a workers’ compensation claim. We affirm.

II. Procedural and Factual Background

A. Tawil’s suit, Cook Children’s summary-judgment grounds, the trial court’s ruling, and Tawil’s issues on appeal

Tawil sued Cook Children’s raising the single claim that he was discharged because he filed a workers’ compensation claim due to an on-the-job injury. He pleaded that Cook Children’s actions violated section 451.001 of the Texas Labor Code.

Cook Children’s answered and later filed a combined no-evidence and traditional motion for summary judgment. The motion’s no-evidence grounds turned on whether Cook Children’s claimed reason for separating Tawil from his employment was pretextual:

• “Defendant is entitled to no-evidence summary judgment because there is no evidence in the record to establish Tawil’s [prima facie] case of worker[s’] compensation retaliation because there is no evidence of any of the ... factors [that establish his employer’s stated reason for termination was pretextual].”

• “Further, there is no evidence that Defendant’s legitimate, non-retaliatory reasons for termination are pretextual.”

Cook Children’s based its traditional summary judgment on similar grounds, asserting that it had a legitimate reason to separate Tawil’s employment:

Defendant is also entitled to traditional summary judgment because the facts in the record establish that there is no causal link between Tawil’s worker[s’] compensation claim and his termination because the facts negate the ... factors [reviewed to determine whether the employer’s stated reason for termination was a pretext] and because [Cook Children’s] terminated Plaintiff for legitimate, non-retaliatory reasons, which were not pretext[,] and [that] no genuine issue of material fact exists with respect to the reasons for [Cook Children’s] decision.

The trial court granted Cook Children’s motion “in all respects” and dismissed all of Tawil’s claims with prejudice.

Tawil challenges the trial court’s granting of summary judgment in three issues, contending that (1) he was not terminated “pursuant to a well-established, uniformly applied termination policy,” (2) circumstantial evidence establishes the existence of factors showing his termination was a pretext, and (3) the policy that Cook Children’s relied on to terminate him “was not in effect during a pending workers’ compensation case.”

B. Tawil’s employment, injury, medical treatment, and relationship with his supervisors

In August 2016, Tawil began his employment with Cook Children’s as a rehabilitation technician at Cook Children’s Rehab-South Forth Worth Clinic. The controversy at issue began with an injury he suffered in mid-November of that year and ended when he was separated from employment a few weeks later on December 6.

Tawil injured himself moving several heavy items at the clinic. His shoulder was sore for several days afterwards. On November 11, he felt a pop in his shoulder that caused him severe pain.

*676 After experiencing the pop, Tawil’s supervisor instructed him to contact the occupational health department of Cook Children’s and to fill out an employee report of his injury. He made contact with occupational health, filled out the required form, and was instructed to see a doctor, which he did. After examining Tawil, the physician prepared a work-status report and placed him on work restrictions that limited his physical activities but that allowed him to return to work. The report did not impose any medication restrictions. Tawil received a prescription for a limited amount of narcotic pain medication, which was apparently refilled once.

The physician examined Tawil again three days after the initial examination. The physician prepared another work-status report that allowed him to return to work with restrictions on his activities. After the second examination, the physician did not believe that Tawil required narcotic pain medication while working. Another work-status report prepared by the physician approximately two weeks later, a few days before Tawil’s separation from employment, placed restrictions on Tawil’s work activities but again cleared him to return to work and expressed the physician’s belief that Tawil did not need to take narcotic pain medication at work.

A few days after the initial examination of Tawil’s injury, Cook Children’s made a “bona fide offer of employment” to Tawil, which offered a temporary modified-duty position to accommodate the restrictions established by his physician. His supervisor stated that she planned to accommodate the restrictions by assigning Tawil limited work activities. After the last documented visit to his physician, Cook Children’s made another bona fide offer of employment to Tawil that accommodated the restrictions contained in the later work-status report. Tawil rejected both offers.

Tawil testified that he continued to take the prescribed narcotic pain medication with the exception of the one day that he returned to work approximately a week after his injury. That day, Tawil left work early because he was in pain. Tawil stated that he did not want to drive and was unable to work while taking the medication. Taking the medication was one of the reasons why Tawil stated he could not work under the restrictions established by his physician.

The written policies of Cook Children’s state that an employee may not report

to work or perform[ ] other job duties while under the influence of other drugs, including prescription or over-the-counter drugs, when there is any possibility that such use may adversely affect the employee’s ability to safely perform his/her job, or may adversely affect his/her safety or that of patients or other employees.

And Tawil’s supervisor also testified that he would not be allowed to work in her department while under the influence of narcotic pain medication.

Tawil described what he viewed as the negative attitude of his supervisors toward him because of his claim that he could not work without taking narcotic pain medications. In his deposition, he described the attitude of his main supervisor as being “snappy and stern” during the partial day that he worked after his injury. In addition, she ignored him and was “rude and ugly” in an unspecified way in text messages. He also responded to a question asking who else acted unprofessionally or inappropriately by saying that the clinic lead who oversaw rehabilitation technicians acted in that fashion on the day that he worked. But he did not give any details *677 describing how her behavior was unprofessional or inappropriate.

Tawil also characterized the attitude of a person with whom he dealt in the occupational health department as aggressive and rude. In Tawil’s view, this person wanted him to sign the initial bona fide offer of employment that accommodated the restrictions placed on his job duties by his physician. His complaint focused on her alleged attitude about his refusal to accept the offer of employment and the pain medication that he was prescribed. He stated, “[S]he said that they have a no-narcotics policy and [that] she would not take no for an answer and said that I had to come back or I would be fired.” In an affidavit that Tawil filed in support of his response to Cook Children’s motion for summary judgment, he stated that the occupational health department representative “kept threatening me that she didn’t want me to lose my job and she didn’t want me to get fired for simply being out on workers’ compensation.” The affidavit also described a phone call during which his supervisor and the occupational health department representative were “very stern” in telling him that he was not protected by FMLA and that he was going to lose his job if he did not come back to work.

C. Communications between Cook Children’s and Tawil about his employment, Cook Children’s employment policies, Tawil’s separation from employment, and Cook Children’s enforcement of its attendance policies

From the beginning of his employment, Tawil understood that if he was going to be absent from work, he was required to notify his supervisor. Further, Tawil acknowledged that when he began working for Cook Children’s, he signed an acknowledgement that he would fully abide by Cook Children’s handbook of policies and procedures. The summary-judgment record contains a new-hire acknowledgement electronically signed by Tawil.

Cook Children’s maintains an attendance policy with two provisions relevant to this controversy. First is a policy that provides as follows, “No Call – When an employee fails to come in for a scheduled shift and fails to notify [his] supervisor by the start of [his] shift, [he] will be considered a no call for the shift. This will count as three occurrences.” Second is a policy that provides, “Job Abandonment – Failure to report to work for two consecutive days without personally notifying supervisor.” We will refer to both policies collectively herein as the “No Call-No Show Policy.”

Tawil’s supervisor testified that a few days after his injury, she reminded Tawil that he still needed to follow Cook Children’s attendance policy:

I sent Tawil a text message on November 17, reminding him that he was still required to follow [Cook Children’s] attendance policy[,] which included calling in each day prior to the start of the shift to advise whether he would be reporting to work or not.... I also verbally counseled him on multiple occasions of the need to follow the attendance policy by calling in prior to the start of his shift if he would be absent.

The text message referred to in the quoted paragraph stated, “Kyle, you still need to follow the PTO / Attendance policy, and notify us of any schedule changes an hour prior to your expected shift[.]” Tawil acknowledged that the supervisor “told [him] on November 17th [that he] needed to follow the attendance policy.”

At some point after the injury, Tawil’s supervisor spoke with Tawil by phone and reminded him of the need to follow Cook Children’s attendance policy.

*678 A few days after sending Tawil the text message on November 17, his supervisor sent Tawil a letter dated November 23, which reiterated the need for him to comply with the No Call-No Show Policy and how he had failed to comply in the days after his supervisor’s November 17 reminder:

In accordance [with] the attendance policy of Cook Children’s Medical Center, each employee is required to notify [his] supervisor if [he is] unable to report to work as scheduled. As of this date, I have not received any notification from you since our last conversation on 11/17/16. Since that time, you were scheduled to work and failed to call or show up on the following dates:

Friday 11/18/16

Monday 11/21/16

Tuesday 11/22/16

Wednesday 11/23/16

The attendance policy states the following: Job Abandonment – Failure to report to work for two consecutive days without personally notifying supervisor will result in administrative review.

Upon receipt of this notice, you have 5 days to notify me of your intent to return to work. If you fail to reply, your silence and failure to comply with the attendance policy will be accepted as your intent to resign your position[,] and your termination will be processed.

Please contact me at my work number. Please note that my work number has changed. The new number is: ....

Tawil did not challenge the letter’s claim that he had failed to call his supervisor on the listed dates. Also, he did not work on November 24, 25, or 28, and he did not call and could not recall texting his supervisor before the scheduled start of his shift on those dates.

Tawil followed the same pattern after his physician examined him on November 29 and again cleared him to return to work with limited activity and no medication restrictions. Tawil stated that he could not recall and did not have records showing that he made any call to Cook Children’s for the period between November 29 and December 6. The testimony of Cook Children’s Employee Relations Director confirmed that “Tawil had not had any contact or communication with [Cook Children’s] between November 29 to December 6 and was not following the call[-]in procedures by notifying his supervisor each day prior to the start of the scheduled shift that he would not be reporting to work.”

On December 6, Cook Children’s wrote Tawil notifying him that it considered his actions to be a voluntary resignation of his employment:

You have not reported to work since November 15, 2016, nor have you provided medical documentation excusing you from work. You are required to report each day that you are going to be absent to your Supervisor. In accordance with the attendance policy[,] two days of no call and no show to work is considered job abandonment. As a result[,] we have accepted your continued silence as such and will accept this as your voluntary resignation of employment.

The decision to separate Tawil’s employment was not made by his supervisor but by Cook Children’s Employee Relations Director. The Employee Relations Director acknowledged that she had spoken to the supervisor. But Tawil’s supervisor testified that the decision to separate Tawil’s employment was “HR’s” and that her involvement was only to report his attendance and call-in history. In Tawil’s supervisor’s words, “It was not my decision. I did not ask somebody to do that, no.”

*679 Because he had filed a workers’ compensation claim, Tawil disputed that the No Call-No Show Policy applied to him. During his deposition, he could not recall “what policy says that when you are under a doctor’s orders you don’t have to follow the generalized call-in procedures.” He also claimed that he was initially told by the representative in occupational health that because his physician “had [him] off of work, ... all I was required to do was keep in touch with occupational health.” That conversation predated the various communications that he received from his supervisor reminding him of the need to comply with the attendance policy.

Cook Children’s Employee Relations Director also stated that the attendance policy applied to all employees, “regardless [of] the reason for the absence.” Tawil’s response to the motion for summary judgment countered this assertion with testimony from Cook Children’s employees in which they could not cite a policy provision that specifically stated the No Call-No Show Policy applied to an employee who had filed a workers’ compensation claim.

Tawil also contended that Cook Children’s policies demonstrated that the No Call-No Show Policy did not apply to him after he filed his workers’ compensation claim. The policy that he relied on states:

ATTENDANCE

If an employee requires time off because of a current, on-going, verified work-related injury or illness, the period will not be considered an occasion of absence. Once a workers’ compensation claim is closed, CCHCS policy HR 110 - Attendance will be applicable.

Tawil’s summary-judgment response cited a provision in the attendance policy containing the No Call-No Show Policy that provides:

Each department will establish guidelines for its employees to notify the department when they are unable to report to work as scheduled and how they are to schedule time off. Employees are expected to hold to those guidelines to allow for alternate staffing.

This does not include lost time due to on-the-job injuries, bereavement leave, or emergency hospitalization. Illness or injuries [that] are classified as Family and Medical Leave (FMLA) time will not be considered an unscheduled absence (refer to CCHCS policy HR 140 – Family and Medical Leave for required medical documentation).

In his deposition, Tawil stated that he did not stop communicating with his supervisor because the No Call-No Show Policy did not apply to him but instead because of the attitude of his supervisors:

Q. Why did you stop calling and texting [your supervisor] each morning as you had done several times during your absence?

A. Because that is when they started threatening me, telling me that I had to come to work or they were going to fire me, and going against doctor’s orders.

Tawil also asserted that Cook Children’s had failed to follow its policies because he did not receive any warnings or any type of discipline short of termination. In his words, “[N]obody notified me of anything.” He amplified this claim in his summary-judgment response, where he noted that the No Call-No Show Policy does not mandate termination and that other Cook Children’s policies provided for a graduated response to policy infractions.

Cook Children’s responded to the contention that Tawil’s termination was premature by noting that the No Call-No Show Policy provided that the failure to call in constitutes job abandonment; that its December 6 letter notified Tawil that his actions were construed as job abandonment; *680 and that “when an employee has failed to respond to warning letters and is not in contact with [Cook Children’s] at all, no administrative review is performed because there is no opportunity to schedule and coordinate the review with the employee.” Cook Children’s explanation for the lack of an administrative review continued, “Due to the fact that Tawil was not in contact with [Cook Children’s], he was not entitled to go through an Administrative Review of his separation[,] and Tawil never requested to have an administrative review or otherwise appeal that decision.” Tawil did not contend that he had communicated with Cook Children’s after the December 6 letter; he was not able to recall any communication that he had with Cook Children’s after November 28, other than his receipt of the letter that separated his employment.

Further, Cook Children’s attendance policy notified employees that discipline could begin at any step. Specifically, it stated, “Although many behaviors may be dealt with in a progressive manner, the disciplinary process can begin at any step, including termination.”

Tawil alleged that no other employee of Cook Children’s with an open workers’ compensation claim had been terminated for violation of the No Call-No Show Policy. But Cook Children’s Employee Relations Director testified that employees without workers’ compensation claims were terminated for the failure to follow the attendance policy and that those employees did not receive an administrative review before Cook Children’s accepted their resignation:

I also have knowledge of [Cook Children’s] uniform application of its Attendance Policies. During Tawil’s employment, 10 employees other than Tawil ... were terminated by [Cook Children’s] due to job abandonment because they failed to follow [Cook Children’s] call[-]in procedures under the Attendance Policies. None of those employees were injured on the job or made worker[s’] compensation claims. These employees also did not go through the administrative review process prior to [Cook Children’s] acceptance of their resignation because they were not in contact with [Cook Children’s]. Accordingly, Tawil was treated the same as other employees who were not injured and did not make worker[s’] compensation claims.

Tawil could not identify another employee who had failed to follow the attendance policy for more than a week of consecutive days and who had kept his job.

III. Standard of Review

We review a summary judgment de novo. Travelers Ins. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).

Usually, when a party moves for summary judgment under both rules 166a(c) and 166a(i), we will first review the trial court’s judgment under the standards of rule 166a(i). Reynolds v. Murphy, 188 S.W.3d 252, 258 (Tex. App.—Fort Worth 2006, pet. denied) (op. on reh’g) (reviewing the propriety of traditional summary judgment first despite fact that both no-evidence and *681 traditional summary-judgment motions were filed).

In a traditional summary-judgment case, the issue on appeal is whether the movant met the summary-judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. City of Keller v. Wilson, 168 S.W.3d 802, 822–24 (Tex. 2005).

A defendant that conclusively negates at least one essential element of a plaintiff’s cause of action is entitled to summary judgment on that claim. Neely, 418 S.W.3d at 59.

IV. Applicable Law

A. The statutory prohibition against retaliation for filing a workers’ compensation claim

“A person may not discharge or in any other manner discriminate against an employee because the employee has[ ] filed a workers’ compensation claim in good faith....” (b).

B. The shifting burdens that apply to a retaliatory-discharge claim

To recover for a retaliatory discharge, the employee has an overall burden of proof to “show that the employer’s prohibited action ‘would not have occurred when it did’ absent the employee’s protected conduct.” Melendez, 477 S.W.3d at 312.

A burden-shifting analysis applies to workers’ compensation-retaliation claims. Datar, 518 S.W.3d at 479.

When an employee relies on circumstantial evidence to establish the causal link between the filing of a workers’ compensation claim and a termination, courts look to the factors enumerated by the supreme court in Continental Coffee:

Circumstantial evidence sufficient to establish a causal link between termination and filing a compensation claim includes: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false.

Willis v. Nucor Corp., 282 S.W.3d 536, 544 (Tex. App.—Waco 2008, no pet.).

*683 Where the Continental Coffee factors enter the process in the burden-shifting regimen is not always clear from the opinions applying them. Some cases mention the factors early in the burden-shifting analysis and look for the causal link in the employee’s prima facie case. For example,

[t]he plaintiff has the burden of making a prima facie showing that he, in good faith, filed a workers’ compensation claim and that there is a causal link between his filing of the claim and his discharge or other act of discrimination by the employer. To establish a causal connection between his firing and his filing of a workers’ compensation claim, an employee must demonstrate that, but for the filing of the claim, the employer’s action would not have occurred when it did.

Dallas Cty. v. Holmes, 62 S.W.3d 326, 329 (Tex. App.—Dallas 2001, no pet.).

Other cases hold off on an analysis of the Continental Coffee factors come into play as being after the employer states a non-discriminatory reason for the termination:

But, when an employer moves for summary judgment asserting that the employee’s termination was unrelated to his compensation claim, the employee has not been called on to produce evidence of the employer’s motive. Only after the employer’s summary[-]judgment evidence establishes a legitimate, non-discriminatory reason for the termination[ ] is the employee required to come forward with summary[-]judgment evidence of a retaliatory motive, i.e., the causal link. The ultimate question will be whether the evidence of a causal link is so strong as to justify a finding that the employer had a retaliatory motive.

Avila v. United Parcel Serv., Inc., No. 03-18-00233-CV, 2018 WL 4100854, at *10 (Tex. App.—Austin Aug. 28, 2018, pet. filed) (mem. op.) (“The causal link required at the prima facie stage does not rise to the level of a ‘but for’ standard.”).

Contrary to the approach of the parties before us, we view the Avila, 2018 WL 4100854, at *10–11.

As set forth above, the existence of a prima facie case triggers only the second step in the process—the requirement that the employer produce a legitimate, non-discriminatory reason for its actions. id.

The employer may make one showing that pretermits further controversy. Proof that termination occurred because it was required by the uniform enforcement of a reasonable absence-control policy meets the employer’s burden and puts an end to the employee’s claim. See Tex. Dep’t of Family & Protective Servs. v. Parra, 503 S.W.3d 646, 666–67 (Tex. App.—El Paso 2016, pet. denied).

Nevertheless, the failure to establish that an employee was terminated pursuant to a uniform absence-control policy does not “compel[ ] the conclusion that an injured employee was terminated in retaliation for the filing of a claim.” Datar, 518 S.W.3d at 480–81 (explaining that the failure to follow progressive discipline policy or even an erroneous decision by employer does not free employee from proving stated reason for termination was pretext).

At the step of applying the Parker, 365 S.W.3d at 67) (internal quotation marks omitted)).

To avoid summary judgment, the employee need not produce evidence on all the Armendariz v. Redcats USA, L.P., 390 S.W.3d 463, 469 (Tex. App.—El Paso 2012, no pet.).

Each of the Continental Coffee factors has its own parameters:

• With respect to knowledge of the compensation claim by those making the decision on termination, “the fact that the person making the termination decision has knowledge of the worker[s’] compensation claim, standing alone, is not evidence sufficient to establish a causal connection.” Willis, 282 S.W.3d at 546 (same).

• With respect to negative comments made about the injured employee’s condition:

[Those comments] may provide some evidence of discriminatory intent if they are: (1) related to the protected class of persons of which the plaintiff is a member; (2) proximate in time to the termination; (3) made by individuals with authority over the employment decision; and (4) related to the employment decision at issue. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 25 (Tex. 2000).

AutoZone, 272 S.W.3d at 593 (emphasis added).

• With respect to a failure to adhere to employment policies, that failure *686 does not necessarily suggest a pretextual motive. For example, failing to strictly follow a progressive disciplinary policy does not establish that the stated reason for termination was pretextual:

The issue at the pretext stage is not whether the employer made an erroneous decision; it is whether the decision, even if incorrect, was the real reason for the employment determination. Id.

Kariotis v. Navistar Int’l Transp. Corp., 131 F.3d 672, 677 (7th Cir. 1997)).

• With respect to the treatment of similarly situated employees, to establish that another similarly situated employee received dissimilar treatment, the complaining employee must establish that his circumstances match those of the employee being compared. “Employees are similarly situated if their circumstances are comparable in all material respects, including similar standards, supervisors, and conduct.” Love, 2013 WL 1223870, at *4 (“To prove discriminatory treatment in comparison to similarly situated employees, [the employee is] required to demonstrate that the circumstances of the other employees were nearly identical to his circumstances.”).

• With respect to the temporal proximity of the workers’ compensation claim and the termination, temporal proximity may be sufficient to establish an employee’s prima facie case in the first step of the burden-shifting analysis, but temporal proximity alone is not sufficient to raise a material fact issue on the issue of whether the stated reason for termination was a pretext. Willis, 282 S.W.3d at 546).

V. Analysis

Though Cook Children’s filed both a no-evidence and a traditional motion for summary judgment, we will not segregate our review to address the unique burdens associated with each type of motion. Cook Children’s motion was a hybrid that combined both no-evidence and traditional grounds. As we noted when reciting the standard of review, in reviewing a hybrid motion in which both parties brought forth summary-judgment evidence, the differing burdens are immaterial, and the ultimate issue is whether fact issues exist. See Neely, 418 S.W.3d at 59. Thus, our approach will be to review the full summary-judgment record to determine whether fact issues exist.

*687 A. Tawil established a prima facie case that required Cook Children’s to present a legitimate reason for his termination.

We agree that Tawil presented a prima facie case. As we have noted, that prima facie link may be established by closeness in time between the filing of a compensation claim and termination. See id. Thus, the burden of production shifted to Cook Children’s to present a legitimate reason for his termination.

B. Cook Children’s presented a legitimate reason for Tawil’s termination.

Cook Children’s presented a legitimate, non-discriminatory reason for Tawil’s termination—his refusal to abide by the No Call-No Show Policy. We do not read either Tawil’s response to Cook Children’s motion for summary judgment or his brief as contending that Cook Children’s claimed reason for his termination was not facially legitimate. Instead, the issue is joined as to whether the facially valid reason was a pretext.

C. We agree with Tawil that Cook Children’s cannot rely on the enforcement of a mandatory absence-control policy as the basis for his termination.

In his first issue, Tawil argues that the policies of Cook Children’s and his termination showed that Cook Children’s was exercising a measure of discretion in its decision to terminate him. He relies on two arguments. First, various hospital policies vest it with discretion regarding whether it will immediately terminate the employee or begin with a lesser sanction. Second, the No Call-No Show Policy provides that the employee has abandoned his employment after two infractions. Here, Cook Children’s relied on four infractions.

Courts have refused to hold that a termination has occurred pursuant to a mandatory policy if the employer had discretion in how it applied the policy or did not apply it uniformly. See Echostar Satellite LLC v. Aguilar, 394 S.W.3d 276, 287 (Tex. App.—El Paso 2012, pet. denied) (holding that sufficient evidence demonstrated that employer did not terminate plaintiff in strict compliance with its absence-control policy’s unambiguous terms, and thus plaintiff’s termination was not required by the policy’s uniform enforcement).

We agree that Cook Children’s policies vested it with a level of discretion and that it did not terminate Tawil at its earliest possible opportunity. Thus, we will not hold that Tawil was terminated in accordance with a mandatory attendance policy. Again, this holding does not invalidate the trial court’s summary-judgment ruling in favor of Cook Children’s. Instead, we now turn to the application of the Continental Coffee factors to determine whether *688 Tawil presented sufficient circumstantial evidence to raise a fact question on whether Cook Children’s proffered reason for his termination was a pretext. Thus, we sustain Tawil’s first issue but only to the extent that it is not sufficient, in and of itself, to sustain the trial court’s granting of summary judgment.

D. After applying the Continental Coffee factors, we conclude that the trial court properly granted summary judgment dismissing Tawil’s retaliation claim.

We will examine in turn the five Cont’l Coffee, 937 S.W.2d at 451. We conclude that the summary-judgment record does not create a fact question that Cook Children’s offered reason for Tawil’s termination was a pretext.

1. The summary-judgment record is unclear whether the person responsible for terminating Tawil knew of his compensation claim, but mere knowledge of the claim is not sufficient to establish that Cook Children’s stated reason for this termination was a pretext.

Cook Children’s Employee Relations Director testified that she made the decision to separate Tawil’s employment. Tawil highlights that his supervisor had discussed his attendance with the Employee Relations Director. The Employee Relations Director testified that she could not remember the specifics of the conversation but that they related to Tawil not reporting to work, the number of days that he had missed, and Cook Children’s policies. The portions of the testimony cited by Tawil do not establish the full extent of the Employee Relations Director’s knowledge of his compensation claim. But even if the Employee Relations Director had knowledge of the claim, that knowledge, standing alone, is not sufficient to establish a causal connection between the filing of the compensation claim and termination. See Love, 2013 WL 1223870, at *3.

2. The summary-judgment record contains no cognizable evidence of a negative attitude expressed towards Tawil’s workers’ compensation claim.

Tawil’s brief claims that his supervisor’s positive attitude toward him changed after his injury. As noted above, he characterized the attitude of his supervisor as “snappy and stern” after the injury. Without any detail or examples, he characterized her text messages as “rude and ugly.” Again, without specifics, he characterized the clinic lead as acting unprofessionally and inappropriately.

As to specifics, Tawil claimed that he was told that he would be fired if he did not come to work against the orders of his doctor. He attributed to both his supervisor and the representative of occupational health the pressure for him to return to work even though he claimed that he could not do so without taking narcotic pain medication. The occupational health representative *689 allegedly told him that she “didn’t want [him] to lose [his] job and [that] she didn’t want [him] to get fired for simply being out on worker[s’] compensation.”

We attribute no evidentiary weight to Tawil’s generalized characterizations of his supervisors’ attitudes or text messages. These characterizations are “merely [the kind of] conclusory allegations, improbable inferences[,] and unsupported speculation” that cannot support a finding of retaliatory intent even in a summary-judgment context. Chhim v. Univ. of Houston, 76 S.W.3d 210, 218–19 (Tex. App.—Texarkana 2002, pet. denied) (“[Employee’s] assertions amount to nothing more than conclusory allegations and unsupported speculation. The nonmovant must come forward with more than mere conclusory allegations, improbable inferences, and unsupported speculation to survive summary judgment.”).

Moreover, as noted above, to be probative, the negative remarks must be made both by individuals with authority over the employment decision and must relate to the employment decision at issue. Aranda v. Willie Ltd. P’ship, No. 03-15-00670-CV, 2016 WL 3136884, at *2 (Tex. App.—Austin June 1, 2016, no pet.) (mem. op.) (collecting cases demonstrating that when summary-judgment evidence raised equally plausible inferences, it did not raise a fact issue, and summary judgment was properly granted). Urging Tawil to conform to the instructions of his doctor might well be something that he found uncongenial, but in the context of the information that had been provided to Cook Children’s, we do not view it as an expression of a negative attitude toward Tawil for having filed a workers’ compensation claim.

Finally, we note again that the supervisor and the representative of occupational health were not the ones who made the decision to separate Tawil’s employment. Tawil apparently never spoke to and offers no evidence that the Employee Relations Director manifested a negative attitude toward his injury or his workers’ compensation claim. Usually, for a negative attitude to be probative of a pretextual motive, that attitude must come from the person making the employment decision. AutoZone, 272 S.W.3d at 593. Again, Tawil notes that his supervisor and the Employee Relations Director spoke, but the description of those conversations and the statements of the Employee Relations Director do not point to any leverage or influence exerted on the Employee Relations Director by the supervisor. Tawil’s *690 evidence fails to demonstrate a negative attitude that circumstantially establishes that the reason Cook Children’s offered for his termination was a pretext attempting to hide a motive to retaliate for the filing of a workers’ compensation claim.

3. Tawil’s argument that Cook Children’s did not terminate him at its earliest possible opportunity does not demonstrate a lack of adherence to hospital policies that is evidence of a pretext.

Tawil’s argument is counterintuitive—Cook Children’s offered him a measure of grace by terminating him after four violations of the No Call-No Show Policy. This was not a strict adherence to the policy’s provision that job abandonment occurs after two violations. But we do not accept the argument that application of a policy in a fashion that benefits the employee may be used as evidence of a pretext. We have agreed with Tawil that the failure to terminate an employee in strict adherence with a mandatory termination policy may deprive the employer of the safe harbor found in Love, 2013 WL 1223870, at *4 (“However, the delay in placing Love in the TAP program benefitted Love by providing him additional time in an alternative position. Such evidence is simply not probative of retaliation, and does not establish a causal connection between the filing of Love’s worker[s’] compensation claim and his termination.”).

4. The summary-judgment record contains no proof that an employee similarly situated to Tawil was treated differently than Tawil.

Tawil’s brief cites only the testimony of the Employee Relations Director to establish that he was the only employee “out on a workers’ compensation claim” who was separated from employment for violation of the No Call-No Show Policy. In our view, this is only half an answer for the point that he is trying to make. He offers no evidence that another employee who was out on a compensation claim violated the No Call-No Show Policy and was not separated from employment. Indeed, he admitted in his deposition that he had no knowledge of any employees who violated that policy and were able to keep their jobs or who violated the No Call-No Show Policy in any regard.

Cook Children’s provided a list of ten former employees who had been terminated for “job abandonment” because they had violated the call-in procedures. The evidence established that none of these employees had been injured on the job or had made a workers’ compensation claim. In essence, “Tawil was treated the same as other employees who were not injured and did not make worker[s’] compensation claims.”

The summary-judgment record contains no evidence that an employee whose circumstances are comparable to Tawil’s in all material aspects—including similar standards, supervisors, and conduct—was treated differently than Tawil. See Parker, 365 S.W.3d at 69.

5. Tawil’s claim that Cook Children’s failed to strictly adhere to its attendance policy is not evidence that its stated reason for his termination was a pretext.

Tawil asserts that Cook Children’s stated reason for his termination was a pretext because its policies can be read to exclude those with open workers’ compensation claims from the attendance *691 policy’s application. We agree that the policies are not models of clarity. But the question is not whether Cook Children’s made a mistake in applying the policy but whether the stated reason for Tawil’s termination was a pretext. And if Tawil contends that the offered explanation was so unreasonable that it must be a pretext, he must offer evidence creating a fact question of that unreasonableness. See Datar, 518 S.W.3d at 481.

Tawil’s physician cleared him to work; his supervisor needed to know whether he was coming to work; she told him repeatedly that he had to comply with the No Call-No Show Policy; and compliance with the policy was not arduous, but he simply refused to comply. This set of circumstances does not hint that Cook Children’s acts were so unreasonable as to suggest a pretext lurked in its decision to separate Tawil’s employment.

And Tawil’s focus on the vague verbiage of policies and a lack of conversance with each policy provision by Cook Children’s employees does not change our view. Tawil highlights three points:

• Cook Children’s attendance policy provides that each department will establish guidelines for its employees to notify the department when they are unable to report and “how they are to schedule time off,” but “this does not include lost time due to on-the-job injuries.”

• Hospital employees testified that they could not identify specific provisions of the attendance policy that made it applicable to those with open workers’ compensation claims though the Employee Relations Director testified that the policy did not exempt anyone.

• Another policy provision stated that the attendance policy does not apply “[i]f an employee requires time off because of a current, on-going, verified work-related injury.”

We agree that the policies do not appear to envision a situation in which an employee is released by his doctor to return to work but claims that he cannot do so. But we also cannot agree that the policies absolve an employee who has been released to work from following the No Call-No Show Policy if he does not want to follow the doctor’s release to return to work. In that situation, the department where the employee works still needs to know if alternate staffing arrangements need to be made, which is the very purpose of the No Call-No Show Policy.

If Tawil had any question about the application of the policy, the repeated reminders that he received of his need to conform to the policy should have answered that question. He refused to comply with the policy not because he questioned its application to him but instead because he believed that he was being mistreated. And to the main point, it is not a legitimate circumstantial inference that Cook Children’s was using the attendance policy as a subterfuge to set up Tawil for firing when it warned him repeatedly of what he had to do to avoid that result.

The argument that the attendance policy’s application to him was a subterfuge is further undermined by how simply he could have avoided the rule’s impact. If Cook Children’s had contorted the rule in a way to make Tawil’s compliance difficult, then that behavior might have some circumstantial evidentiary value to establish that the rule was being used as a pretext for termination. Instead, the record shows that compliance by Tawil was not difficult and that he could have satisfied the rule’s application to him by simply calling his supervisor to tell her that he would not be coming to work. Whatever his excuse or motive, he refused to do so. Here, Cook *692 Children’s behavior is not of a type that raises a circumstantial inference that Cook Children’s applied the attendance rule to Tawil for any other reason than ensuring it was adequately and efficiently staffed. No matter the fact that the attendance policy may have not been written to precisely deal with Tawil’s status, Cook Children’s did not use that policy so unreasonably that it prompts an inference that it was using the attendance policy as a pretext to fire Tawil because he had filed a workers’ compensation claim.2

Earlier, we noted that to avoid summary judgment, Tawil did not have to produce evidence on all the Continental Coffee factors and certainly not the majority of them. Therefore, the trial court did not err by concluding that Tawil had failed to raise any fact question on the issue that Cook Children’s proffered reason to separate Tawil’s employment was a pretext. We overrule Tawil’s second issue.

VI. Conclusion

The first core issue in this appeal is whether Cook Children’s presented a legitimate reason for Tawil’s termination. It did. The second core issue is whether the summary-judgment record contains evidence that implicates the Continental Coffee factors to such a degree that a fact question arises regarding whether the legitimate reason presented by Cook Children’s was a pretext. It does not. Accordingly, we affirm the trial court’s granting of Cook Children’s no-evidence and traditional motion for summary judgment and its dismissal of Tawil’s claims.

Footnotes

1 The burden-shifting process used to analyze summary-judgment procedures in various types of discrimination cases has its origins in the United States Supreme Court’s opinion in McDonnell Douglas:

Under the Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App.—Houston [1st Dist.] 2000, no pet.)).

Datar, 518 S.W.3d at 478.

2 Tawil’s brief raises a third issue that rehashes almost verbatim the argument made under the fifth element of the Tex. R. App. P. 47.1.
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