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Court of Appeals of Texas, San Antonio.

DICEX INTERNATIONAL, INC., Appellant

v.

AMIGO STAFFING, INC., Appellee

No. 04-20-00018-CV

|

Delivered and Filed: March 24, 2021

From the 111th Judicial District Court, Webb County, Texas

Trial Court No. 2015CVT001668-D2

Honorable Monica Z. Notzon, Judge Presiding

Sitting: Beth Watkins, Justice

Liza A. Rodriguez, Justice

Lori I. Valenzuela, Justice

MEMORANDUM OPINION

Opinion by: Lori I. Valenzuela, Justice

AFFIRMED

Dicex International, Inc. (“Dicex”) appeals from a summary judgment rendered in favor of Amigo Staffing, Inc. (“Amigo”). We affirm.

FACTUAL BACKGROUND

In 2009, Dicex and Amigo entered into a temporary employment services (“TES”) agreement under which Amigo provided Dicex with temporary warehouse and clerical employees. Roberto Avila Rodriguez was assigned by Amigo to operate a forklift at a Dicex warehouse in Laredo, Texas. In 2013, Rodriguez was injured while operating the forklift. Based on this work-related injury, Rodriguez applied for and received workers’ compensation benefits from Amigo.

PROCEDURAL BACKGROUND

Rodriguez sued Dicex, Amigo, Panther Expedited Services, Inc. (“Panther”), and two drivers (“Ellis” and “Daly”) for his alleged injuries. After Rodriguez non-suited Amigo, Dicex filed a third party petition against Amigo, alleging breach of contract and reckless and/or negligent misrepresentation, and claiming contribution. Dicex and Panther each filed motions for summary judgment against Rodriguez. In its summary judgment motion, Dicex argued that, pursuant to Texas Labor Code section 93.004(b) of the Texas Workers’ Compensation Act (the “Act”), Rodriguez’s claims were barred by the Act’s exclusive remedy provision.1 See Rodriguez v. Panther Expedited Servs., Inc., 04-17-00291-CV, 2018 WL 3622066, at *2 (Tex. App.—San Antonio July 31, 2018, pet. denied) (mem. op.). A panel of this court held that the work-related injury upon which Rodriguez’s claims were based “occurred on May 19, 2013, almost four months before the effective date of section 93.004. Thus, section 93.004(b) was not effective at the time of the injury, and therefore, is inapplicable to this case.” Id. at *4. Because Dicex’s motion for summary judgment relied only on the exclusive remedy provision of section 93.004(b), which was inapplicable, this court concluded that section could not form the basis for the summary judgment in favor of Dicex. Id. Therefore, the court held “the trial court erred in granting summary judgment in favor of Dicex because in its motion for summary judgment, Dicex relied on the exclusive remedy provision of the TWCA as made applicable to temporary employment services through section 93.004(b) of the Labor Code, which was inapplicable due to its effective date.” Id. at *11. This court reversed the trial court’s summary judgment in favor of Dicex and remanded that portion of the matter to the trial court for further proceedings.2 Id.

On remand, Amigo filed a combined traditional and no-evidence motion for summary judgment against Dicex. In its traditional motion for summary judgment, Amigo asserted its defense that Dicex’s suit against Amigo was barred in its entirety by the exclusive remedy provisions of the Act pursuant to Texas Labor Code sections 408.001(a) and 417.004. In its no-evidence motion for summary judgment, Amigo asserted there was no evidence on Dicex’s causes of action for breach of contract and reckless/negligent misrepresentation, or on its claim for contribution.

Dicex responded to both motions asserting Amigo failed to meet its burden of proof on its defense, and maintaining it produced evidence raising genuine issues of material fact on the challenged elements of its causes of action. The trial court rendered a take-nothing summary judgment in Amigo’s favor against Dicex. After the court severed Rodriguez’s claims against Dicex, Dicex filed this appeal from the summary judgment rendered in favor of Amigo.

AMIGO’S TRADITIONAL MOTION FOR SUMMARY JUDGMENT

In its traditional motion for summary judgment, Amigo alleged (1) Dicex’s breach of contract and misrepresentation causes of action and its contribution claim were barred in their entirety by the exclusive remedy provisions provided in Texas Labor Code sections 408.001(a) and 417.004, and (2) the two-year statute of limitations on Dicex’s misrepresentation claim had expired.

A. Standard of Review

A traditional summary judgment is proper only when the movant establishes there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). A defendant who conclusively establishes an affirmative defense is entitled to summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). Unlike a no-evidence motion, a traditional motion for summary judgment must stand on its own merits; there is no right to a traditional summary judgment by default. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). “The nonmovant has no burden to respond to a summary judgment motion unless the movant conclusively establishes its cause of action or defense.” M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam). If the movant satisfies its burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). “In reviewing the grant of summary judgment, we must credit evidence favoring the nonmovant, indulging every reasonable inference and resolving all doubts in [its] favor.” Id.

B. Analysis

“Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.” TEX. LABOR CODE § 408.001(a). This section limits an employer’s liability for injuries sustained by its employees through the exclusive remedy provision. Here, because Amigo provided workers’ compensation insurance to Rodriguez, Rodriguez was not entitled to recover damages against Amigo in his lawsuit. Therefore, Rodriguez non-suited Amigo. However, Rodriguez’s negligence claim against Dicex continued after this court held Rodriguez’s claim was not barred by Labor Code section 93.004(b), and Dicex, in turn, sued Amigo for indemnity and contribution.

*3 In its motion for traditional summary judgment, Amigo relied on Labor Code section 417.4 to argue it was not liable to Dicex for reimbursement of any damages owed by Dicex to Rodriguez. Section 417.004 bars claims by third parties for reimbursement against employers who subscribe to workers’ compensation insurance and provides as follows:

In an action for damages brought by an injured employee ... against a third party liable to pay damages for the injury or death under this chapter that results in a judgment against the third party or a settlement by the third party, the employer is not liable to the third party for reimbursement or damages based on the judgment or settlement unless the employer executed, before the injury or death occurred, a written agreement with the third party to assume the liability.

TEX. LABOR CODE § 417.004 (emphasis added).

Under this statute, a subscribing employer, such as Amigo, has no liability to reimburse or hold another entity, such as Dicex, harmless for a judgment or settlement resulting from injury or death of an employee in the absence of a written agreement, executed prior to the injury, expressly assuming such liability. See Enserch Corp. v. Parker, 794 S.W.2d 2, 7 (Tex. 1990); Whiteco Metrocom, Inc. v. Tex. Utils. Elec. Co., 30 S.W.3d 421, 423 (Tex. App.—Dallas 2000, pet. denied) (“Under this statute, employers who subscribe to workers’ compensation insurance are immune from liability to third parties the employee might sue for their injuries.”). Therefore, Amigo is not required to indemnify Dicex unless the TES agreement is sufficient to overcome this bar. See Remedy Intelligent Staff, Inc. v. Drake All. Corp., 14-16-00241-CV, 2017 WL 4440484, at *4 (Tex. App.—Houston [14th Dist.] Oct. 5, 2017, no pet.) (mem. op.) (“It is undisputed in this case that Drake’s workers’ compensation provider paid benefits to Lopez. Thus, to recover against Drake for ‘the attorney’s fees it has incurred defending Lopez’[s] lawsuit, plus whatever damages it becomes obligated to pay, by judgment or settlement, to Lopez, Remedy must show that Drake executed a written agreement to assume such liability.”).

According to Amigo, nothing in the TES agreement supports the contention that Amigo assumed the liability of Dicex or any other third party. Dicex counters that (1) there exists a question of fact on whether Amigo is obligated to protect Dicex under the agreement and (2) the agreement clearly evidences the parties’ intent that Amigo indemnify Dicex.

1. Is there an executed agreement for indemnity?

Dicex relies only on the following language in the TES agreement to assert its entitlement to indemnity under section 417.004:

INSURANCE COVERAGES:

Commercial General Liability: 2,000,000.

Workers Compensation Insurance: 2,000,000.

CRIME: (Surety Bond): $10,000.

According to Dicex, the purpose of including such insurance coverage in the agreement was to protect Dicex from claims of assigned employees through workers’ compensation insurance, and from claims from third parties for the acts of assigned employees through the commercial general liability insurance, and a $10,000.00 surety bond for criminal acts of those employees concerning the theft of merchandise Dicex handles for its clients. Dicex contends that a “sensical and logical reading of” this coverage was to protect Dicex from any such claims.

Because the TES agreement is a contract, the principles of contract construction govern its interpretation. See Loya v. Loya, 526 S.W.3d 448, 451 (Tex. 2017). Applying these principles, the presence of ambiguities and the interpretation of an unambiguous contract are questions of law that we review de novo. URI, Inc. v. Kleberg Cty., 543 S.W.3d 755, 763 (Tex. 2018). “In construing a contract, we must ascertain and give effect to the parties’ intentions as expressed in the document.” Frost Nat’l Bank v. L & F Distributors, Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005). “We consider the entire writing and attempt to harmonize and give effect to all the provisions of the contract by analyzing the provisions with reference to the whole agreement.” Id. at 312.

A contract is not ambiguous simply because the parties differ on a term’s meaning; the competing definitions must be reasonable for an ambiguity to exist. Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex. 1996). Therefore, “[i]f the written instrument is so worded that it can be given a certain or definite legal meaning or interpretation, then it is not ambiguous and the court will construe the contract as a matter of law.” Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). Furthermore, “surrounding facts and circumstances cannot be employed to ‘make the language say what it unambiguously does not say’ or ‘to show that the parties probably meant, or could have meant, something other than what their agreement stated.’ ” URI, 543 S.W.3d at 757 (citations omitted). “In other words, extrinsic evidence may only be used to aid the understanding of an unambiguous contract’s language, not change it or ‘create ambiguity.’ ” Id. (citations omitted).

Before we consider whether the isolated language on which Dicex relies is sufficient to raise a fact issue, we must examine the TES agreement, which states in full as follows:

BILL-RATES & TERMS:

Amigo Staffing, Inc. will supply Dicex International throughout its operation on a Temporary/Leasing and or long term basis at a 26% Mark up for Warehouse and 24% Clerical for the first 90 days equivalent to 3 months; after this time Warehouse personnel will be at a 25 % Mark up and 16 % Mark-up for Clerical.

Temp to hire will require a term of 120 days completion before transferring to Dicex International.

Note: This Mark up applies on volume from our client; Amigo Staffing, Inc. requires a minimum of (4) hours per employee per day unless employee leaves job-site or customers [sic] cancels order (2) hours in advance.

DIRECT PLACEMENT:

Amigo Staffing, Inc. will provide direct placement services at 8% of the initial starting salary, with a 30 day Guarantee. The services include Criminal Investigation, Previous Employment Verification, Verify Degrees/Licenses, Skills Assessments and Drug Screening.

INSURANCE COVERAGES:

Commercial General Liability: 2,000,000.

Workers Compensation Insurance: 2,000,000.

CRIME: (Surety Bond): $10,000.

DISCLAIMER:

When you require one of our employees to operate a vehicle, regardless of who owns the vehicle, client will insure the vehicle and the employee for any and all liability associated with the operation and/or the control of the vehicle. Further, client agrees to indemnify and hold our employee and Amigo Staffing, Inc., harmless from any and all liability that may arise from the operation and/or control of the vehicle by our employee.

SAFETY IS ALWAYS FIRST:

Please select the personnel Protective Equipment required for Dicex, International. Safety Glasses_ Safety Vests_ Hard Hat_ Safety Boots_

Back Brace_ Safety Gloves_ Hearing Protection_ Dust Mask_

Additional _______

The TES agreement unambiguously requires Amigo to carry certain levels of insurance, including workers’ compensation insurance for its employees such as Rodriguez. However, that requirement alone does not create a question of fact on whether the parties intended Amigo to indemnify Dicex because the agreement contains no express language requiring Amigo to indemnify Dicex. Therefore, Dicex’s contention that the coverage levels as stated in the agreement may be construed as evidencing an intent by Amigo to indemnify Dicex or raising a fact question on whether Amigo agreed to indemnify Dicex is without merit. See Remedy Intelligent Staff, 2017 WL 4440484, at *4 (noting that Remedy’s assertion of an “implied agreement arising out of the course of performance” lacks merit “because by definition an ‘implied agreement arising from a course of performance’ is not an executed written agreement for purposes of section 417.004”).

We conclude that because the agreement does not mention indemnity much less contain an express indemnity clause, it does not satisfy section 417.004’s requirement of “a written agreement with the third party to assume the liability.” As such, the agreement is insufficient to show Amigo expressly assumed liability to indemnify third parties for injuries to its employees. See Lee Lewis Constr., Inc. v. Harrison, 64 S.W.3d 1, 20 (Tex. App.—Amarillo 1999), aff’d, 70 S.W.3d 778 (Tex. 2001) (“Equally clear is that [the agreement] expressly mentions indemnification, the conditions which trigger the duty to indemnify, the party obligated to provide indemnity, and the party to be indemnified.... [Therefore,] ‘the indemnity language in the contract between’ LLC and KK ‘is sufficient to show that ... [KK] expressly assumed liability for injuries to its own employees.’ ”).

2. Conclusion

We conclude Amigo established its entitlement to summary judgment as a matter of law on its defense that it is not liable to Dicex for reimbursement or damages as a result of any judgment or settlement in favor of Rodriguez.3

AMIGO’S NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

In its no-evidence motion for summary judgment on Dicex’s breach of contract claim, Amigo alleged there was no evidence that (1) Amigo agreed to be contractually liable for all damages resulting to Dicex from an employee’s suit, (2) Amigo was not properly insured against workplace injuries alleged by employees, and (3) Amigo contracted with Dicex for capable, experienced, fully-trained employees or, alternatively, that Amigo failed to provide such employees. On Dicex’s negligent and/or reckless misrepresentation claim, Amigo alleged there was no evidence that: (1) Amigo represented to Dicex that Dicex was protected from assigned employee claims through the application of workers’ compensation insurance and (2) Amigo represented to Dicex that Rodriguez was a capable, experienced, fully-trained forklift operator or, alternatively, that any such representation was untrue or made with reckless disregard. Finally, Amigo alleged there was no evidence Dicex was entitled to contribution against Amigo or that the contract contained any language requiring Amigo to indemnify Dicex.

A. Standard of Review

A party is entitled to a no-evidence summary judgment if, “[a]fter adequate time for discovery, ... there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial.” TEX. R. CIV. P. 166a(i). The trial court must grant a no-evidence motion for summary judgment unless the nonmovant produces evidence raising a genuine issue of material fact. Id. “A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). “On the other hand, ‘[w]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.’ ” Id. at 601 (citations omitted). More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. Id. at 601. In determining whether the nonmovant has produced more than a scintilla of evidence, we view the evidence in the light most favorable to the nonmovant and disregard all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

B. Breach of Contract

Dicex alleged Amigo breached the contract by (1) failing to provide “the workers’ compensation insurance that was or should have been obtained by Amigo pursuant to their” TES agreement, and (2) by providing a forklift operator (Rodriguez) who lacked adequate experience, capability, and training. To satisfy its burden to produce evidence raising a genuine issue of material fact on its breach of contract claim, Dicex points to the agreement and the affidavit of Alberto Aranda, Dicex’s Director of Quality and Certifications and Human Resources Manager.

1. Failure to provide insurance for Dicex’s benefit

As discussed above, the TES agreement unambiguously states that Amigo will provide certain levels of coverage, including workers’ compensation insurance for its employees. However, nowhere in the agreement does Amigo contractually agree to include Dicex as an insured or otherwise protect Dicex from suit. Therefore, the TES agreement is insufficient to raise a genuine issue of fact. Aranda’s affidavit likewise is insufficient to raise a genuine issue of fact because it is conclusory. His affidavit states:

That [TES] agreement expressly provided, as part of the markup fees paid to Amigo Staffing, Inc., insurance coverage for commercial general liability and workers compensation insurance of $2,000,000.00 for each of such insurance policies, as well as surety bond of $10,000.00 for criminal acts of the employees, with theft of client’s merchandise in mind for such surety bond. The obvious purpose of the inclusion of such insurance coverage in the agreement, as discussed in negotiations, was to protect Dicex International, Inc., from claims by employees through workers compensation insurance, and from commercial claims from third parties such as clients for their merchandise, through commercial general liability insurance. It was so represented by Amigo Staffing, Inc., and pursuant to the Agreement it was incumbent upon Amigo Staffing, Inc., to ensure that Dicex International, Inc., was fully covered and protected. The only disclaimer was for vehicle related liability to third parties for harm caused by Amigo Staffing, Inc.’s employees in the scope of employment with Dicex International, Inc., for which Dicex had to obtain vehicle liability insurance, and indemnify Amigo Staffing, Inc., from any such claims by third parties. [Emphasis added.]

Affidavits containing unsubstantiated factual or legal conclusions that are not supported by the evidence are not competent summary judgment proof because they are not credible or susceptible to being readily controverted. See Ryland Grp. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam). Therefore, Aranda’s conclusion that the TES agreement was intended to protect Dicex is not competent summary judgment evidence.

2. Failure to provide employees with adequate experience, capability, and training

In its response to Amigo’s no-evidence motion for summary judgment, Dicex alleged as follows:

The fact is that it is [Rodriguez who] is claiming against Dicex that he was improperly trained. That claim is before the Court and the Court can take judicial notice of it. Certainly, Dicex, as the defendant, is controverting and disagrees with that claim. Nonetheless and to the extent Dicex is held liable for such claim by [Rodriguez], it was Amigo’s contractual duty to Dicex to assess [Rodriguez’s] skills as a forklift operator before being assigned to Dicex. The agreement states what it states, and the outcome of Plaintiff’s claims against Dicex will be what will be.

Other than alleging that Rodriguez contends he was not properly trained, Dicex points to no evidence (1) that Amigo contractually agreed to verify Rodriguez’s experience or to assess his skills or (2) that Rodriguez was, in fact, not properly trained.

C. Misrepresentation Claims

Dicex alleged Amigo made the following misrepresentations: (1) Dicex was protected from assigned employee claims through the application of workers’ compensation insurance and (2) Rodriguez was an experienced, capable, and fully-trained forklift operator. In response to the no-evidence motion, Dicex merely alleged (1) that “[t]he agreement clearly states that workers’ compensation insurance would be provided, and Alberto Aranda attests that such was discussed and agreed during the negotiation of the [TES] agreement” and (2) “[w]hat is undisputed is that there is an agreement that bounds Amigo to assess skill for assigned employees such as [Rodriguez], and if it turns out that [Rodriguez] was not skilled enough, then Amigo incurred [sic] in a misrepresentation by assigning [Rodriguez] as a forklift operator.” For the same reasons as above, we conclude Dicex’s reliance on the TES agreement and Aranda’s affidavit are insufficient to raise a genuine issue of fact.

D. Conclusion

On this record, we conclude Dicex failed to satisfy its burden in response to Amigo’s no-evidence motion for summary judgment on Dicex’s claims. Accordingly, the trial court properly rendered a no-evidence summary judgment on Dicex’s causes of action for breach of contract and misrepresentation.

CONCLUSION

For the reasons stated above, we conclude the trial court properly rendered a take-nothing summary judgment in favor of Amigo on all of Dicex’s causes of action.4

Footnotes

1

Specifically, Dicex argued it produced summary judgment evidence showing that at the time of the injury, Amigo was a TES that carried workers’ compensation insurance covering Rodriguez, and Dicex was Amigo’s client pursuant to the TES agreement. Therefore, according to Dicex, “under Chapter 93 of the Texas Labor Code, the workers’ compensation policy held by Amigo Staffing covered any injuries sustained by Rodriguez during his assignment with Dicex, and any action pursued against Dicex was barred by the exclusive remedy provision of the” Act. Id. at *2.

2

The Rodriguez court affirmed the summary judgment in favor of Panther and noted the record did not indicate the disposition of Rodriguez’s claims against Ellis or Daly. Id. at *11 & n.1.

3

Because of our disposition, we need not address whether the trial court properly rendered a traditional summary judgment in favor of Amigo on its assertion that Dicex’s misrepresentation claim is barred by the statute of limitations. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

4

Dicex asserted it was entitled to contribution against Amigo for Amigo’s percentage of responsibility for Rodriguez’s damages pursuant to Chapter 33 of the Texas Civil Practices and Remedies Code. On appeal, Dicex does not challenge the trial court’s summary judgment in favor of Amigo on this claim.

Court of Appeals of Texas, San Antonio.

Zaid TOZI, Appellant

v.

RJ & SONS LLC, Appellee

No. 04-19-00591-CV

|

Delivered and Filed: October 28, 2020

From the 111th Judicial District Court, Webb County, Texas

Trial Court No. 2018CVF001538D2

Honorable Monica Z. Notzon, Judge Presiding

Sitting: Luz Elena D. Chapa, Justice

Beth Watkins, Justice

Liza A. Rodriguez, Justice

OPINION

Opinion by: Liza A. Rodriguez, Justice

*1 REVERSED AND REMANDED

Zaid Tozi appeals the trial court’s judgment granting RJ & Sons, LLC’s (“RJ”) plea to the jurisdiction and dismissing all of Tozi’s claims. On appeal, Tozi argues that because RJ is an employer in Texas that is a non-subscriber under the Texas Workers’ Compensation Act, the trial court erred in determining that Tozi could not maintain his lawsuit in Texas. In response, RJ argues that Texas courts lack subject-matter jurisdiction over Tozi’s claims regarding an injury that allegedly occurred on the job because the Michigan Bureau of Workers’ Compensation has exclusive jurisdiction over Tozi’s claims. We reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

BACKGROUND

Tozi, a resident of San Antonio, Texas, saw a job listing on Craigslist for a commercial truck driver posted by RJ. While in San Antonio, Tozi completed and submitted the job application to RJ. He then began exchanging text messages with Charles Thompson, RJ’s safety manager, about the hiring process. RJ paid for Tozi to take a drug test at an urgent care clinic in San Antonio. A few days later, he was informed by Thompson that he had passed the drug test. Thompson told Tozi to be ready for a trip to Laredo, Texas. Thompson said that Tozi was being hired in Texas but explained that the main office for RJ was located in Michigan. Thompson then told Tozi to pick up a truck owned by RJ in Laredo, Texas, and take his first load, a load of auto parts, to Michigan. While in Michigan, Tozi underwent orientation and signed paperwork. He then left Michigan and drove an RJ truck back to Laredo, Texas. On July 11, 2017, while at a gas station in Laredo, Tozi fell out of the 18-wheeler truck. According to Tozi, the door of the truck “was jammed” and to exit the truck, he “had to push hard against the door to force it open.” “When the door finally opened [Tozi’s] weight was against it, and [Tozi] fell out of the tractor injuring [himself].” In falling, Tozi injured his knee and returned to San Antonio to get medical treatment. According to Tozi, RJ did not assist him in getting medical treatment and has disputed his claims. Tozi has not received any benefits from RJ.

On August 7, 2018, Tozi sued RJ in state district court in Webb County, Texas, for negligence, alleging that RJ was a non-subscriber to the Texas Workers’ Compensation Act. On October 3, 2018, RJ filed a general denial and a plea to the jurisdiction, arguing that Texas courts lack subject matter jurisdiction over Tozi’s claims. According to RJ, the Michigan Bureau of Workers’ Compensation has exclusive jurisdiction over Tozi’s claims. Tozi then amended his petition to add a claim for retaliation pursuant to chapter 451 of the Texas Labor Code. On June 18, 2019, the trial court held a hearing on RJ’s plea to the jurisdiction. On June 20, 2019, the trial court granted RJ’s plea to the jurisdiction and dismissed all of Tozi’s claims. Tozi then appealed.

DISCUSSION

Tozi argues the trial court erred in granting RJ’s plea to the jurisdiction and determining that the state district court in Webb County lacked subject matter jurisdiction over his claims. A plea to the jurisdiction challenges the trial court’s subject matter jurisdiction. City of Dallas v. Carbajal, 324 S.W.3d 537, 538 (Tex. 2010). We review the trial court’s ruling on a plea to the jurisdiction de novo. Id. “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.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). “We construe the pleadings liberally in favor of the plaintiff[ ] and look to the pleader[’s] intent.” Id. When 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.” Id. at 227. In doing so, our review of the evidence mirrors summary judgment standards. Id. at 228.

*2 We presume that state district courts are authorized to resolve disputes unless the constitution or other law conveys exclusive jurisdiction on another court or administrative agency. In re Sw. Bell Tel. Co., 235 S.W.3d 619, 624 (Tex. 2007); In re Entergy Corp., 142 S.W.3d 316, 322 (Tex. 2004). An agency has exclusive jurisdiction when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed. In re Sw. Bell, 235 S.W.3d at 624-25. Whether an agency has exclusive jurisdiction is a matter of law subject to de novo review. Id. at 625. If an agency has exclusive jurisdiction to resolve a dispute, a party must first exhaust administrative remedies before a trial court has subject matter jurisdiction. Id.

In the context of employee-related injuries suffered on the job, the Texas Workers’ Compensation Act vests the Division of Workers’ Compensation (“DWC”) within the Texas Department of Insurance with exclusive jurisdiction to determine a claimant’s entitlement to medical and income benefits. See TEX. LAB. CODE §§ 402.001, 408.001, 410.251, 413.031. Because the DWC has exclusive jurisdiction, a claimant must exhaust all administrative remedies in the agency before filing a claim in the trial court. In re New Hampshire Ins. Co., 360 S.W.3d 597, 601 (Tex. App.—Corpus Christi-Edinburg 2011, no pet.). “Until the party has exhausted all administrative remedies, the trial court lacks subject matter jurisdiction and must dismiss any claim within the agency’s exclusive jurisdiction.” Id. at 601-02 (quoting In re Entergy Corp., 142 S.W.3d at 321-22). “The exhaustion requirement ensures that the administrative agency has the opportunity to resolve disputed fact issues within its exclusive jurisdiction before a court must address those issues.” Id. at 602. With respect to Tozi’s injuries, it is undisputed in this case that RJ did not have workers’ compensation insurance in Texas that covered any claims brought by Tozi and thus is a nonsubscriber to the Texas Workers’ Compensation Act. Accordingly, the Texas Workers’ Compensation Act would not bar Tozi from filing suit against RJ in Texas state court.

Instead, in its plea to the jurisdiction, RJ argued that the Michigan Bureau of Workers’ Compensation has exclusive jurisdiction over Tozi’s claims and thus deprives a Texas court of jurisdiction. In support of this assertion, RJ in its brief points to Celadon Trucking Services, Inc. v. Martinez, 320 S.W.3d 377 (Tex. App.—El Paso 2010, pet. denied).

In Celadon, the El Paso Court of Appeals determined that the Indiana Workers’ Compensation Board had exclusive jurisdiction over claims brought by a truck driver against his employer for injuries suffered on-the-job during a vehicular accident in Texas. Id. at 380. In doing so, the court of appeals pointed to a Texas statute: section 406.073(a) of the Texas Labor Code. See Celadon, 320 S.W.3d at 383. Section 406.073(a) provides that “[a]n employee whose work requires regular travel between this state and at least one other jurisdiction may agree in writing with the employer on the principal location of the employment.” TEX. LABOR CODE § 406.073(a) (emphasis added). The employee in Celadon had signed an agreement that stated his employment was “principally localized in Indiana” and that “Indiana workers’ compensation law would apply to the settlement of any claim arising out of any job related injury.” Id. Because “Texas permit[ted] an employee to agree in writing with the employer on the principal location of the employment” pursuant to section 406.073(a), the court of appeals held that the employee was required to present his claims to the Indiana Workers’ Compensation Board before filing his lawsuit in court. Celadon, 320 S.W.3d at 384-85. Here, however, there is no such agreement signed by Tozi and RJ. Thus, section 406.073(a) does not apply to this case, making the holding in Celadon distinguishable from the facts presented here.

*3 RJ alternatively argues that Michigan law should apply to this case under the Restatement (Second) Conflict of Laws and that under Michigan law, Tozi cannot bring his claim in a trial court until he exhausts all his administrative remedies with the Michigan Bureau of Workers’ Compensation. In Texas, the applicable law is determined by the Restatement’s “most significant relationship” test. In re ENSCO Offshore Int’l Co., 311 S.W.3d 921, 928 (Tex. 2010) (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS §§ 6, 145 (1971)). In the context of a case involving issues of workers’ compensation, the Texas Supreme Court held in Hughes Wood Products, Inc. v. Wagner that a court should “consider which state has the most significant relationship to the issue to be resolved, that is the exclusive-remedy issue.” 18 S.W.3d 202, 203 (Tex. 2000) (emphasis added). The supreme court explained that “[s]ection 184 of the Restatement provides the standards by which a court is to determine immunity from a tort suit when an employee is covered by workers’ compensation insurance.” Hughes, 18 S.W.3d at 205 (citing RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 184 (1971)). Section 184 provides the following:

Recovery for tort or wrongful death will not be permitted in any state if the defendant is declared immune from such liability by the workmen’s compensation statute of a state under which the defendant is required to provide insurance against the particular risk and under which (a) the plaintiff has obtained an award for the injury, or (b) the plaintiff could obtain an award for the injury, if this is the state (1) where the injury occurred, or (2) where the employment is principally located, or (3) where the employer supervised the employee’s activities from a place of business in the state, or (4) whose local law governs the contract of employment under the rules of §§ 187-188 and 196.

RESTATEMENT (SECOND) OF CONFLICTS § 184 (1971).

In adopting section 184 of the Restatement, the Texas Supreme Court explained that application of section 184 “protects the parties’ justified expectations because ‘[i]t is thought unfair that a person who is required to provide insurance against a risk under the workmen’s compensation statute of one state which gives him immunity from liability for tort or wrongful death should not enjoy that immunity in a suit brought in other states.’ ” Hughes Wood, 18 S.W.3d at 206. “Section 184 also recognizes the relative interests of other states in providing an exclusive workers’ compensation remedy, because ‘to deny a person the immunity granted him by a workmen’s compensation statute of a given state would frustrate the efforts of that state to restrict the costs of industrial accidents.’ ” Id. (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 184 cmt. b (1971)). “Moreover, ‘[a]ll states are sympathetic with the policies underlying workmen’s compensation, and all states grant certain persons immunity from liability for tort or wrongful death.” Id. (quoting RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 184 cmt. b (1971)) (alteration in original). Thus, according to the supreme court, “section 184’s application (1) serves the needs of the interstate system, (2) applies the relevant policies of the forum, (3) promotes the basic policies underlying the workers’ compensation system, (4) protects justified expectations, (5) facilitates certainty, predictability, and uniformity of result, and (6) eases the determination and application of the law to be applied.” Id. (applying factors set forth in section 6 of the RESTATEMENT (SECOND) CONFLICT OF LAWS). In comparing the Texas Workers’ Compensation Act with the Louisiana version, the supreme court noted that “there is no policy reason to refuse to apply Louisiana’s exclusive workers’ compensation remedy.” Id. at 207.

The supreme court then considered whether the defendants in the trial court had met their summary judgment burden to show that they were entitled to section 184’s protection. Id. According to the supreme court, the defendants “had the burden under section 184 to show (1) that they would be immune from suit under Louisiana workers’ compensation law, and (2) that plaintiff has obtained or could obtain an award for his injury in Louisiana.” Hughes, 18 S.W.3d at 207. According to the supreme court, the defendants’ summary judgment proof had not established either requirement. Id.

*4 First, the supreme court noted that to establish they were immune under Louisiana’s workers’ compensation law, the defendants had to prove they were the plaintiff’s “employer, principal, or co-employee when the injury occurred.” Id. The supreme court criticized the defendants for relying exclusively on allegations in the plaintiff’s petition that the plaintiff was injured while employed by “HUGHES WOOD PRODUCTS, INC. and/or BAILEY WAGNER, individually and as Agent Representative of HUGHES WOOD PRODUCTS, INC.” Id. While the defendants argued this allegation in the plaintiff’s petition was “a judicial admission conclusively establishing their employer status under the Louisiana Workers’ Compensation Act,” the supreme court disagreed, explaining that only “assertions of fact, not plead in the alternative, in the live pleadings of a party are regarded as formal judicial admissions.” Id. (emphasis in original). According to the supreme court, because the plaintiff had pled in the alternative, his petition did not constitute a judicial admission. Id. at 207-08.

Second, the supreme court explained the defendants had “also failed to establish the second section 184 requirement, that plaintiff has obtained or could obtain an award for his injury in Louisiana.” Id. at 208. The court explained that it was undisputed that the plaintiff had not obtained an award for his injury under the Louisiana workers’ compensation scheme. Id. “The only summary judgment evidence that relates to whether plaintiff could obtain an award for his injury in Louisiana is the evidence establishing that Hughes had Louisiana workers’ compensation coverage in effect on August 13, 1992.” Id. The supreme court emphasized that this evidence did not “establish that plaintiff could get an award under Hughes’s policy.” Id. The court first noted that without proof the plaintiff was employed by Hughes or that Hughes was a principal, there was no evidence the plaintiff could obtain benefits under Hughes’s workers’ compensation coverage. Id. at 208-09. “Second, Hughes never filed a report of plaintiff’s injury with its workers’ compensation insurance carrier or with the office of workers’ compensation administration as required by Louisiana law.” Id. at 209. Thus, the supreme court held that because the defendants had failed in their burden “to show that they would be immune from plaintiff’s suit under Louisiana workers’ compensation statute and that plaintiff has obtained or could obtain an award for his injury in Louisiana, they failed to invoke the protections of Restatement section 184.” Id.

In applying Section 184 and the holding in Hughes to the facts of this case, we must consider whether RJ met its burden in its plea to the jurisdiction to show that (1) it would be immune from suit under Michigan workers’ compensation law, and (2) Tozi has obtained or could obtain an award for his injury in Michigan. Hughes, 18 S.W.3d at 207.

To be entitled to Michigan’s exclusive remedy provision, Michigan law requires the following:

(1) Each employer under this act, subject to the approval of the director, shall secure the payment of compensation under this act by either of the following methods:

(a) By receiving authorization from the director to be a self-insurer....

(b) By insuring against liability with an insurer authorized to transact the business of workers’ compensation insurance within this state....

(7) The director may review and alter a decision approving the election of an employer to adopt any [one] of the methods permitted by subsection (1), (2), or (4) if, in the director’s judgment, that action is necessary or desirable for any reason....

MICH. COMP. LAWS § 418.611 (1), (7) (emphasis added). RJ claims that it has shown it has obtained workers’ compensation insurance in compliance with subsection (1)(b). However, Tozi responds that by the plain language of section 418.611, obtaining workers’ compensation insurance is not sufficient for an employer to be entitled to exercise the exclusive remedy provision because subsection (1) requires “approval of the director.” See id. We agree with Tozi. While RJ argues that “approval of the director” applies only if an employer is seeking self-insurance under subsection (1)(a), the plain reading of subsection (1) applies “approval of the director” to both subsections (1)(a) and (1)(b). See MICH. COMP. LAWS § 418.611 (1). Further, subsection (7) discusses the ability of the director to “review and alter a decision approving the election of an employer to adopt any [one] of the methods permitted by subsection (1).” See id. § 418.611(7) (emphasis added). As evidence that it complied with section 418.611, RJ attached to its plea to the jurisdiction an affidavit by Stacy Klein and to its reply to Tozi’s response an amended affidavit of Stacy Klein. Klein is a claims manager with Grand River Services, the claims adjusting service for RJ’s insurance policy. Klein’s amended affidavit states that “[a]s a claims manager who specifically works with workers’ compensation policies, [she has] to be knowledgeable of the requirements relating to workers’ compensation of different states, including Michigan.” The affidavit further states that “[f]rom [her] experience and knowledge of workers’ compensation, RJ is required to carry workers’ compensation insurance in the State of Michigan.” The affidavit then states that at the time of Tozi’s injury, RJ “had in effect, a valid Workers Compensation and Employers Liability Insurance Policy.” RJ relies on these statements as proof they have complied with section 418.611 of the Michigan Compiled Laws. However, Klein’s statement that RJ’s policy is “valid” is conclusory in that it provides no factual basis of how such a policy is “valid” in Michigan or complies with section 418.611. See Weech v. Baptist Health Sys., 392 S.W.3d 821, 826 (Tex. App.—San Antonio 2012, no pet.) (“A conclusory statement is one that does not provide the underlying facts to support the conclusion.”); Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655, 669 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) (“The mere recitation that the affidavit is based on personal knowledge is inadequate if the affidavit does not positively show a basis for the knowledge.”); see also Coleman v. United Savs. Ass’n, 846 S.W.2d 128, 131 (Tex. App.—Fort Worth 1993, no writ) (explaining that requirement that an affidavit be made on personal knowledge is not satisfied “by a self-serving recitation by the affiant that she has ‘personal knowledge’ ”). Thus, we hold that RJ did not meet its burden under section 184 of the Restatement to show that it would be immune from suit under Michigan workers’ compensation law.1 See Hughes, 18 S.W.3d at 207.

*5 With regard to the second requirement under section 184 of the Restatement, it is undisputed that Tozi has not obtained an award for his injury in Michigan. Indeed, RJ filed a workers’ compensation claim on his behalf only after Tozi filed the underlying lawsuit. Tozi argues that under Michigan law, he will not be able to obtain an award for his injury because he is not a resident of Michigan and his contract of hire was not made in Michigan. Section 418.845 of the Michigan Compiled Laws provides that its

workers’ compensation agency shall have jurisdiction over all controversies arising out of injuries suffered outside this state if the injured employee is employed by an employer subject to this act and if either the employee is a resident of this state at the time of injury or the contract of hire was made in this state. The employee or his or her dependents shall be entitled to the compensation and other benefits provided by this act.

MICH. COMP. LAWS § 418.845 (emphasis added). It is undisputed that Tozi is not a resident of Michigan. Thus, the issue becomes whether RJ met its burden to show that Tozi’s contract of hire was made in Michigan.

As evidence that Tozi’s contract of hire was made in Michigan, RJ attached to its plea to the jurisdiction the December 11, 2018 affidavit of Charles Pointer, the Safety & Recruiting Manager at RJ. In his affidavit, Pointer states the following facts: (1) Tozi “was physically present in the State of Michigan when he was hired by RJ”; (2) Tozi “completed the application and employment process while physically present in Michigan”; (3) Tozi “attended orientation in Michigan”; (4) Tozi “performed his road driving test in Michigan”; and (5) Tozi “was made aware his employment began in Michigan.”

In response to the plea to the jurisdiction, Tozi attached his affidavit of February 19, 2019, in which he affirmed the following facts about his hire: (1) Tozi “started a job search while living in San Antonio, Texas, where [he] currently live[s] and ha[s] lived since 2009”; (2) he looked for “jobs listed on the Craigslist website” and “found a driver position job for RJ”; (3) he “responded to the ad and filled out an application for employment and began communicating with the agent for” RJ; (4) Charles Thompson, an agent for RJ, “coordinated [his] hiring and sent [him] for a urine test necessary for employment with RJ” to an urgent care clinic in San Antonio, Texas, and paid for the cost of the test; (5) Thompson later stated to him in a text message that his “test results came back and to be ready for [his] trip to Laredo, Texas”; (6) Thompson stated to Tozi that he “was getting hired in Texas but the main office for RJ was in Michigan”; (7) Thompson told Tozi that he “was all set and directed [him] to pick up his truck in Laredo, Texas, and to take [his] first load, which was a load of auto parts, to Michigan”; and (8) Tozi’s understanding was that he “was hired in Laredo, Texas because that [was] when [he] was given the truck, started being paid, took [his] first load and began [his] job.”

We conclude that Tozi’s affidavit presents disputed material facts regarding the location of his hire. See Miranda, 133 S.W.3d at 228 (explaining that when courts consider relevant evidence submitted by the parties to resolve a jurisdictional issue in a plea to the jurisdiction, an appellate court’s review of the evidence mirrors summary judgment standards). And, according to Michigan law, if his contract for hire occurred outside the state of Michigan, he would not be entitled to an award under Michigan’s workers’ compensation system. See MICH. COMP. LAWS § 418.845. Because of this issue of material fact surrounding the location of Tozi’s contract for hire, we hold RJ has also not met its burden under the second requirement of section 184 of the Restatement to show that Tozi could obtain an award for his injury in Michigan. See Hughes, 18 S.W.3d at 207.

*6 Because RJ has not met its burden to show it was entitled to the protections of section 184 of the Restatement, we hold the trial court erred in granting RJ’s plea to the jurisdiction. We therefore reverse the judgment of the trial court and remand the cause for further proceedings consistent with this opinion.

Footnotes

1

We note that RJ in its brief points to exhibits it has included in its appendix as evidence to support its plea to the jurisdiction. These exhibits, however, were not submitted in the trial court and are not part of the appellate record. Therefore, they cannot be considered on appeal. RJ claims these exhibits should be considered on appeal because Tozi has argued “for the first time in his Appellate Brief that the insurance policy produced by RJ was not enough to show compliance with Michigan workers’ compensation law.” Tozi’s argument, however, goes directly to the burden RJ was required to meet in the trial court. Under Hughes, to be entitled to dismissal of Tozi’s lawsuit, RJ had the burden to show it was entitled to protection under section 184 of the Restatement. Whether Tozi brought this specific argument in the trial court is irrelevant. RJ had the burden to show it was entitled to dismissal pursuant to its plea to the jurisdiction.

Court of Appeals of Texas, San Antonio.

Jerold GIVENS and Dinah Givens, Individually and as Representatives of the Estate of James Douglas Givens, Deceased; Beverly Brown, Johnny Scott Brown, and Andrew Brown, Individually and as Representatives of the Estate of Johnnie Lee Brown; Shannon Brown; and Wesley Brown, Appellants

v.

ANDERSON COLUMBIA CO., INC., Appellee

No. 04-19-00435-CV

|

Delivered and Filed: July 8, 2020

From the 293rd Judicial District Court, Maverick County, Texas, Trial Court No. 14-12-30420-MCV, Honorable Maribel Flores, Judge Presiding1

Attorneys & Firms

APPELLANT ATTORNEY: Jonathan Daniel Simon, Kevin Bush, Simon Law Firm, 5151 Katy Freeway, Suite 140, Houston, TX 77007, John D. Sloan Jr., Micah Satterwhite, Sloan, Hatcher, Perry, Runge, Robertson & Smith, P.O. Box 2909, Longview, TX 75606, Rachael Jones, P.O. Drawer 2909, Longview, TX 75606-2909, Rolando M. Jasso, Knickerbocker, Heredia, Jasso & Salinas, P.C., 468 East Main Street, Eagle Pass, TX 78852-4554, Brock C. Akers, Akers Law Firm, 3401 Allen Parkway, Suite 101, Houston, TX 77019.

APPELLEE ATTORNEY: Catherine M. Stone, Langley & Banack, Inc., 745 E. Mulberry Ave., Suite 900, San Antonio, TX 78212, Robinson C. Ramsey, 745 E. Mulberry Ave., Suite 900, San Antonio, TX 78212-3141, Heriberto Morales, Jr., Langley & Banack, Inc., 401 Quarry Street, Eagle Pass, TX 78852, Jennifer D. Aufricht, Thompson, Coe, Cousins & Irons, L.L.P., 700 N. Pearl St., 25th Floor, Dallas, TX 75201-2832, Jessica Z. Barger, Wright, Close & Barger, LLP, 1 Riverway, Suite 2200, Houston, TX 77056, Brian Cathey, Wright Close & Barger LLP, 1 Riverway, Suite 2200, Houston, TX 77056-1981.

Sitting: Sandee Bryan Marion, Chief Justice, Patricia O. Alvarez, Justice, Liza A. Rodriguez, Justice

OPINION

Opinion by: Sandee Bryan Marion, Chief Justice

*1 The appellants appeal a take-nothing judgment entered in favor of Anderson Columbia Co., Inc. based on a jury’s verdict. The appellants challenge the factual sufficiency of the evidence to support the jury’s findings. The appellants also contend the trial court erred in: (1) vacating an order granting a mistrial; (2) denying their motion for new trial; and (3) applying an order entered by this court in a prior mandamus proceeding. We affirm the trial court’s judgment.

BACKGROUND

James Douglas Givens, Johnnie Lee Brown, and Melissa Trevino died from injuries they sustained in an automobile collision. The van driven by Trevino and the pickup truck driven by Givens, in which Brown was a passenger, were struck from behind by an 18-wheel tractor-trailer driven by Salatiel Polanco.

Givens was slowing to a stop at a road construction site immediately behind Trevino’s van when Polanco crashed into the rear of Givens’s pickup truck. Polanco, who was consistently traveling at a speed of approximately 60 mph prior to the crash, did not apply his brakes until two seconds before the collision. The collision forced Givens’s pickup truck into the rear of Trevino’s van. Trevino’s van was also struck by Polanco’s tractor-trailer when the initial impact caused Givens’s truck to move sideways, thereby allowing the tractor-trailer to also directly impact Trevino’s van. At the time of the collision, Trevino’s van was stopped immediately behind another 18-wheel tractor-trailer driven by Mark Patrick. Patrick’s tractor-trailer, which also was damaged in the collision, was stopped behind a few other cars and a third tractor-trailer which were not impacted by the collision.

The collision occurred on a two-lane highway which had been reduced to one lane to accommodate the road construction. Road construction employees called “flaggers” were situated on both sides of the construction zone and would alternately stop traffic in one direction while allowing traffic from the other direction to drive past the construction zone in the one open lane.

The families of Givens, Brown, and Trevino sued Polanco and Anderson, the construction company engaged in the road construction, alleging their negligence caused the accident. Anderson was alleged to be negligent in failing to comply with the traffic control plan the Texas Department of Transportation prepared for the road construction project. Before trial, Trevino’s mother settled her claims against Anderson, and the Givens/Brown families settled their claims against Polanco. After a two-week trial, the jury found Polanco’s negligence caused the occurrence in question but Anderson was not negligent. The jury also found Anderson complied with the provisions of the traffic control plan that were “material to the condition or defect, if any, that was the proximate cause of the occurrence.”

After the jury’s verdict, the trial court granted a motion for mistrial filed by the Givens/Brown families. Anderson filed a petition for writ of mandamus in this court challenging the order granting the mistrial. Because a new trial judge assumed the trial court bench, this court abated the mandamus proceeding pursuant to rule 7.2 of the Texas Rules of Appellate Procedure and instructed Anderson to present to the successor trial judge “each issue made the subject of the pending petition for writ of mandamus and obtain a ruling on each.” After a hearing, the successor trial judge entered an order vacating the order granting the mistrial which effectively denied the motion for mistrial. The successor trial judge also denied the motion for new trial filed by the Givens/Brown families who appeal.

FACTUAL SUFFICIENCY

*2 In their first issue, the Givens/Brown families contend the evidence is factually insufficient to support the jury’s findings in favor of Anderson.

“When a party attacks the factual sufficiency of an adverse finding on an issue on which [the party] has the burden of proof, [the party] must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001). “The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.” Id.

“A factual sufficiency challenge concedes the existence of conflicting evidence, yet maintain[s] that the evidence against the jury’s findings is so great as to make the finding erroneous.” Lamont v. Vaquillas Energy Lopeno Ltd., LLP, 421 S.W.3d 198, 209 (Tex. App.—San Antonio 2013, pet. denied) (internal quotation marks omitted). In conducting a factual sufficiency review, a reviewing court “must not merely substitute its judgment for that of the jury.” Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). Instead, the reviewing court must remain mindful that “the jury is the sole judge of the credibility of witnesses and the weight to be given to their testimony.” Id. Similarly, it is the jury’s role, not the reviewing court’s, “to resolve inconsistencies within or conflicts among the witnesses’ testimony.” Lamont, 421 S.W.3d at 209–10 (internal quotation marks omitted).

In their brief, the Givens/Brown families cite evidence that could have supported a jury finding that Anderson was negligent in failing to comply with the traffic control plan, including evidence that all required traffic control signs and rumble strips were not properly positioned at the time of the accident. The brief, however, ignores or attempts to discredit the conflicting evidence that the required traffic control signs and rumble strips were properly positioned. In doing so, the brief disregards it is the jury’s role, not this court’s, to assess the credibility of the witnesses and to resolve conflicts in the evidence. The Givens/Brown families also cite evidence that: (1) measurements of the distances between the required traffic control signs and rumble strips after the accident established a few variations from the distances required by the traffic control plan; and (2) flags were not attached to the first traffic control sign required by the traffic control plan which was the sign farthest away from the site of the collision. The jury, however, was asked whether Anderson was in compliance with the provisions of the plan “material to the condition of defect, if any, that was the proximate cause of the occurrence.” Based on its finding, the jury either believed the testimony that the traffic control signs and rumble strips were properly placed or that the variations in the required distances and missing flags were not material. Such a finding is supported by evidence that Polanco failed to slow his speed in response to any of the traffic control signs and rumble strips and failed to brake until two seconds before the collision. Having reviewed all of the evidence and deferring to the jury’s assessment of the credibility of the witnesses and the weight of the evidence, and further deferring to the jury’s resolution of the conflicts in the evidence, we hold the evidence is factually sufficient to support the jury’s findings.

*3 The Givens/Brown families’ first issue is overruled.

RULE 7.2

In their fourth issue, the Givens/Brown families assert the trial court erred in its application of this court’s abatement order in original proceeding cause number 04-18-00852-CV. Specifically, the Givens/Brown families contend the successor judge erred in independently ruling on the motion for mistrial as opposed to deferring to the prior judge’s ruling in reconsidering that ruling. We disagree.

Rule 7.2 of the Texas Rules of Appellate Procedure requires an appellate court to abate an original proceeding if a public officer ceases to hold office before the original proceeding is finally disposed. TEX. R. APP. P. 7.2. Pursuant to rule 7.2, the successor must “reconsider the original party’s decision.” Id. In this case, the “decision” to be reconsidered was the ruling on the motion for mistrial. Accordingly, the successor judge properly reconsidered whether the motion for mistrial should have been granted and effectively denied the motion by vacating the prior order.

Although the Givens/Brown families are critical of the successor judge making a decision based on a “cold record,” the Texas Supreme Court has recognized a successor judge may be “disadvantaged” in reconsidering rulings under rule 7.2. See In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204, 213 (Tex. 2009). However, the court noted “successor trial judges are disadvantaged in many, if not most, instances when they are called upon to step into pending cases.” Id. The court then concluded, “Part of being a trial judge is having to make difficult rulings in pending matters.” Id. at 214.

The Givens/Brown families’ fourth issue is overruled.

MISTRIAL

In their second issue, the Givens/Brown families contend the trial court erred in vacating the order granting the mistrial. The Givens/Brown families argue the mistrial was properly granted due to incurable jury argument, violations of motions in limine, and the consolidation of their lawsuit with the Trevino lawsuit. For the reasons previously stated, we consider whether the successor judge erred in effectively denying the motion for mistrial.

A. Standard of Review

“Only in extreme circumstances, where the prejudice is incurable, will a mistrial be required.” In re E.O.E., 508 S.W.3d 613, 624 (Tex. App.—El Paso 2016, no pet.) (internal quotation marks omitted). “We will not disturb a ruling denying a motion for mistrial absent a showing of an abuse of discretion.” Bazan v. Munoz, 444 S.W.3d 110, 123 (Tex. App.—San Antonio 2014, no pet.). “A trial court abuses its discretion if it acts without reference to any guiding rules and principles such that the ruling is arbitrary or unreasonable.” Pressley v. Casar, 567 S.W.3d 327, 333 (Tex. 2019). “When reviewing matters committed to the trial court’s discretion, a court of appeals may not substitute its own judgment for the trial court’s judgment.” Bowie Mem’l Hosp. v. Wright, 79 S.W.3d 48, 52 (Tex. 2002). Stated differently, a trial court does not abuse its discretion merely because it decides a discretionary matter differently than an appellate court would in a similar circumstance. In re Estate of Denman, 362 S.W.3d 134, 141 (Tex. App.—San Antonio 2011, no pet.).

B. Grounds for Ruling

*4 The parties disagree as to whether the Givens/Brown families are limited to the ground for mistrial asserted in their motion for mistrial, namely incurable jury argument. The argument arises from the Givens/Brown families’ assertion on appeal that the trial court erred not only in denying the mistrial based on incurable jury argument, but also based on violations of limine orders and the consolidation of the Givens/Brown and Trevino lawsuits for trial. The procedural history of this case makes the issue even more complex because the two additional grounds were asserted in the Givens/Brown families’ response to Anderson’s motion for reconsideration which were both filed after this court abated the original proceeding to allow the successor judge to reconsider the prior judge’s ruling.

The argument presented arises from a series of Texas Supreme Court decisions addressing the specificity required in a trial court’s order granting a new trial and the nature of the permissible review of such orders in mandamus proceedings. See In re Bent, 487 S.W.3d 170, 175–78 (Tex. 2016) (discussing the series of decisions). In one of the earliest opinions in this series of decisions, the court first noted trial courts are authorized to grant new trials for good cause on a party’s motion or on the trial court’s own motion. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d at 210 (quoting TEX. R. CIV. P. 320). The court also noted, however, that motions filed by a party “must be in such form that the bases for the motion can be clearly identified and understood by the trial court.” Id. (citing TEX. R. CIV. P. 322). Because the trial court’s order in that case failed to specify the reasons the trial court “refused to enter judgment on the jury verdict and ordered a new trial,” the court ordered the trial court to specify its reasons. Id. at 215. The court further admonished, “The reasons should be clearly identified and reasonably specific.” Id.

In reaching its holding, the majority rejected the dissenting justices’ argument that the trial court’s order was “presumably based on one of the grounds in the motion for new trial,” asserting “that presumption may not be correct.” Id. at 213. Instead, the majority reasoned the order could have been based “on other reasons not even urged by [the movant] and still unknown to both parties.” Id.; see also Steele v. Peurifoy, 585 S.W.2d 338, 340 (Tex. Civ. App.—Dallas 1979, no writ) (noting trial court could have granted mistrial “based on a ground not set out in plaintiff’s motion).

In this case, we are reviewing the successor judge’s order granting Anderson’s motion for reconsideration which effectively denied the motion for mistrial filed by the Givens/Brown families. Although the Texas Supreme Court’s decisions require specificity in an order granting a new trial, no similar specificity is required in an order denying a new trial. Although we see efficiencies could be gained by limiting appellate review of an order denying a mistrial to the grounds raised in the motion for mistrial, the trial court’s discretion in granting a mistrial is not so constrained. And, because the Givens/Brown families’ response to Anderson’s motion for reconsideration expressly presented their two alternative arguments to the successor judge, we conclude we must review each of the arguments challenging the successor judge’s order that the Givens/Brown families present on appeal.

C. Incurable Jury Argument

It is undisputed that no objection was made during trial to the jury argument the Givens/Brown families complain about on appeal. “Error as to improper jury argument must ordinarily be preserved by a timely objection which is overruled.” Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678, 680 (Tex. 2008). “In rare cases, an improper argument is considered incurable, and a contemporaneous objection is not required.” Hopkins v. Phillips, No. 05-18-01143-CV, 2019 WL 5558585, at *2 (Tex. App.—Dallas Oct. 29, 2019, pet. denied) (mem. op.). Instead, “[a] complaint of incurable jury argument may be asserted and preserved in a motion for new trial [or post-judgment motion for mistrial], even without a complaint and ruling during the trial.” Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).

*5 As previously noted, however, incurable argument is rare. Living Ctrs. of Tex., Inc., 256 S.W.3d at 681. The seminal case setting forth the test for determining whether jury argument is incurable is Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835 (Tex. 1979). In Reese, the court explained:

In the case of improper jury argument, the complainant must prove a number of things. He has the burden to prove (1) an error (2) that was not invited or provoked, (3) that was preserved by the proper trial predicate, such as an objection, a motion to instruct, or a motion for mistrial, and (4) was not curable by an instruction, a prompt withdrawal of the statement, or a reprimand by the judge. There are only rare instances of incurable harm from improper argument. The complainant has the further burden to prove (5) that the argument by its nature, degree and extent constituted reversibly harmful error. How long the argument continued, whether it was repeated or abandoned and whether there was cumulative error are proper inquiries. All of the evidence must be closely examined to determine (6) the argument’s probable effect on a material finding. (7) Importantly, a reversal must come from an evaluation of the whole case, which begins with the voir dire and ends with the closing argument. The record may show that the cause is weak, strong, or very close. From all of these factors, the complainant must show that the probability that the improper argument caused harm is greater than the probability that the verdict was grounded on the proper proceedings and evidence.

584 S.W.2d at 839–40. Although the Givens/Brown families argue in their brief that incurable jury argument cannot be invited, this argument is contrary to the holding in Reese explaining a complainant asserting incurable jury argument has the burden to first establish improper jury argument by establishing the argument “was not invited or provoked.” Id. at 839; see also Zurita v. Lombana, 322 S.W.3d 463, 482 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (“For an argument to be considered incurable, the complaining party must not have invited or provoked the improper argument.”).

To rise to the level of incurable jury argument, therefore, the argument must “strike[ ] at the very core of the judicial process.” Phillips, 288 S.W.3d at 883. “In Reese, [the Texas Supreme] Court discussed different types of jury argument that constitute incurable error.” Living Ctrs. of Tex., Inc., 256 S.W.3d at 681. “For example, appeals to racial prejudice adversely affect the fairness and equality of justice rendered by courts because they improperly induce consideration of a party’s race to be used as a factor in the jury’s decision.” Id. “Unsupported, extreme, and personal attacks on opposing parties and witnesses can similarly compromise the basic premise that a trial provides impartial, equal justice.” Id. “Further, accusing the opposing party of manipulating a witness, without evidence of witness tampering, can be incurable, harmful argument.” Id. Finally, inflammatory epithets such as “liar,” “fraud,” “faker,” “cheat,” and “imposter” can constitute incurable argument. Ramirez v. Welch, No. 05-16-00681-CV, 2018 WL 3725254, at *16 (Tex. App.—Dallas Aug. 6, 2018, no pet.) (mem. op.).

*6 On the other hand, hyperbole is “generally a permissible rhetorical technique in closing argument.” PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 721 (Tex. App.—Dallas 2011, pet. denied); see also Reese, 584 S.W.2d at 838 (“Hyperbole has long been one of the figurative techniques of oral advocacy.”). Similarly, commenting on a statement made by opposing counsel during trial, as opposed to an unsupported accusation of wrongdoing, is also permissible. Ramirez, 2018 WL 3725254, at *17; Metro. Transit Auth. v. McChristian, 449 S.W.3d 846, 855–56 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (making reference to opposing counsel and asking “what kind of snake oil is he selling you” held not to be incurable jury argument); Rebel Drilling Co., L.P. v. Nabors Drilling USA, Inc., 14-02-00841-CV, 2004 WL 2058260, at *10 (Tex. App.—Houston [14th Dist.] Sept. 16, 2004, no pet.) (mem. op.) (holding reference to “smoke and mirrors” was not incurable argument).

1. Ethnic Prejudice

In arguing Anderson’s counsel made an “incurable appeal to ethnic prejudice or solidarity during closing argument, the Givens/Brown families primarily rely on this court’s decision in Tex. Employers’ Ins. Ass’n v. Guerrero, 800 S.W.2d 859 (Tex. App.—San Antonio 1990, writ denied). Accordingly, we first examine the Guerrero opinion.

In Guerrero, Roman Guerrero was injured in January of 1982 when he fell from a tractor and injured his tailbone while working for H.G. Farms. 800 S.W.2d at 860. For three months Guerrero was treated by a doctor, and H.G. Farms’s insurance company, Texas Employers’ Insurance Association, paid Guerrero workers’ compensation benefits and also paid his medical expenses. Id. “On April 15, 1982, Guerrero returned to work, and he continued to work for H.G. Farms until the company closed in October 1984.” Id. at 860–61. “On January 19, 1985—three years after the January 1982 injury—Guerrero saw [another doctor], who diagnosed a herniated lumbar disc and operated four months later.” Id. at 861. At the conclusion of a subsequent trial, a jury found Guerrero’s January 1982 injury occurred “in the course of his employment for H.G. Farms, and that the injury caused total and permanent incapacity.” Id.

One of the issues TEIA raised on appeal was incurable jury argument, asserting “Guerrero’s counsel made an appeal for ethnic unity in his closing jury argument.” Id. at 862. This court first noted, “The record shows that eleven of the twelve jurors had Spanish surnames, as did Guerrero, his trial attorney, and his treating doctor.”2 Id. The court next noted the challenged argument read as follows:

MR. BARRIENTOS (Guerrero’s counsel): I am tickled to death to be here and I will represent him and any man like him in Zavala, Maverick, Dimmit, Cameron, any county in the State of Texas any time.

Octavio Paz, a well-known author said one time, and I will quote him and I already translated it. He said, “Things that unite us far exceed those things that divide us.

You apply that to evidence. The things, the preponderance of the evidence, that unite in favor of Mr. Guerrero, far exceed those inconsistencies, the legal problems. He is not a perfect man, neither is his medical. But heck, he went back to work after he got cut, things of this nature. The things that unite us, exceed those that divide us. There is a time to be united. Right now is a time to be united.

An example is politics. We don’t have to agree with all the candidates, with the same ones. But by golly there comes a time when we have got to stick together as a community. We have to stick together as a jury of peers of a man to pass judgment and help that person if he is entitled to [sic] under the evidence.

*7 MR. KURTH (TEIA’s counsel): Your Honor, this is getting a little inflammatory in asking the jury to take that position—

MR. BARRIENTOS: No, No. I didn’t ask them, sir, I said, We. I think that is proper.

THE COURT: Well, you have got two minutes.

MR. BARRIENTOS: Thank you, your Honor. Because if one is united, one has hope. And with hope, one can live. He still has a lot of years to live. And it is all going to depend on you.

Id. (emphasis added in original). TEIA asserted the argument “was a subtle but nonetheless real request for the jury to be united and on Guerrero’s side for ethnic reasons.” Id. The court agreed, asserting, “We think the argument was a request for ethnic solidarity that cannot be plausibly explained away as a suggestion that the jury simply remember the things that ‘unite’ Guerrero’s case.” Id. The court acknowledged the ethnic references were “veiled and subtle” but asserted:

The law should not stoop to evaluating subtle distinctions such as whether an argument was too crude and revolting, or on the other hand sufficiently slick and artful to pass muster. To permit the sophisticated ethnic plea while condemning those that are open and unabashed would simply reward counsel for ingenuity in packaging. Inevitably, lawyers representing their clients zealously within the bounds of the law would test the limits and fine-tune their arguments to avoid being too explicit. Courts would be asked to label some arguments permissible and uphold them with a wink when everyone knew that an ethnic appeal had been made. That course would demean the law and perhaps deepen the divisions from which society already suffers.

Id. at 864–65. The court then held “reversible error occurs whenever any attorney suggests, either openly or with subtlety and finesse, that a jury feel solidarity with or animus toward a litigant or a witness because of race or ethnicity.” Id. at 866.

Having examined the holding in Guerrero, we turn our attention to the argument in the instant case. Although the Givens/Brown families’ brief expressly quotes the comments they contend were incurable in making their personal attack and inflammatory language arguments, their brief is less precise in arguing that the closing argument by Anderson’s counsel was an “incurable appeal to ethnic prejudice or solidarity.” The only citation to the alleged “appeal to ethnic prejudice” in the brief is a global citation to thirty-seven pages of argument by one of the two attorneys who presented closing argument on behalf of Anderson, noting that attorney “had a Hispanic surname.”

The Givens/Brown families’ brief contends Anderson’s attorney with the Hispanic surname “began his closing argument by immediately attempting to rally the jury’s support for ‘our people,’ and seeking to create and encourage division between ‘our people’ on one side and the Givens-Brown Parties and their counsel on the other.” Just as the Guerrero court considered the specific argument made within its proper context, we also must examine the specific argument made in this case within its proper context. 800 S.W.2d at 863 (basing conclusion on a “realistic assessment of the argument in context”).

*8 First, we note the attorney whose argument is globally cited in the Givens/Brown families’ brief began his argument asserting Anderson’s position throughout the litigation was that the traffic control signs and rumble strips were properly in place at the time of the collision. We do not see any reference to any comment analogous to “our people” until about ten pages into the argument when the attorney stated he was “disappointed by certain comments made about our town and what they implied about our people, our troopers, our EMS” and then asserted:

But I know our town is not perfect, but it’s still our town. And I know that there is room for improvement, but it’s our town.

What saddened me the most was to hear those attorneys get up in voir dire and ask for $200 million from the 60-plus of you that were here.

To think of all the progress we have made as a community and for out-of-towners to still see us as naive, gullible, or easily fooled, and to be easily fooled and persuaded to give millions and millions of dollars, it’s beyond me.

The attorney then returned to arguing the traffic control signs were properly placed and referring to the evidence. Approximately twenty pages later, in referring to the effort by the Givens/Brown families’ attorney to discredit a trooper’s testimony based on his inexperience, the attorney asserted:

This is a veteran that they are now trying to malign and painting a picture of being young and incompetent and not knowing what they were doing. That’s what these out-of-towners are trying to say about our people.

The attorney then again returned to arguing what the evidence showed. Approximately seven pages later at the conclusion of his argument, the attorney argued, “In conclusion, our town needs to let corporations in Texas and throughout the country know that they will be treated fairly and will be given a fair shake in the community.” Referring to the evidence introduced by the plaintiffs that one of Anderson’s employees had served a prison sentence for a prior felony, the attorney argued corporations giving young kids a second chance should be welcomed “in this community with open arms.” The attorney further argued a corporation willing to defend its employees in litigation is “the type of corporation that we need here in this community.” Finally, the attorney asserted the jury should reject the Givens/Brown families’ conspiracy theory that the witnesses conspired to testify the traffic control signs and rumble strips were properly in place to show:

That we are not the Maverick County of the past. That we are intelligent, thoughtful, and thorough in our deliberations. And we will not be fooled by multiple conspiracy theories. And that we can distinguish between those that are seeking rightful justice against the empty-chair defendant that couldn’t even come, Defendant Polanco.

Having reviewed the argument about which the Givens/Brown families complain in its proper context, we disagree that the argument was an appeal to ethnic prejudice or solidarity. Although phrased in terms of “community,” the argument was directed at preventing “out-of-towners” from discrediting the local community, not in racial or ethnic terms but in terms of defending the people who work in the community and whose testimony the Givens/Brown families sought to discredit.

During the closing argument by the Givens/Brown families’ attorney, which preceded the argument by Anderson’s attorney, the attorney suggested one trooper changed the testimony he gave in his deposition after meeting with Anderson’s attorneys despite evidence that the trooper’s change in testimony was based on a crucial portion of his report that was missing during his deposition. The attorney also suggested that the testimony of the inspector from the Texas Department of Transportation “should be given no credibility whatsoever” because, with three people dead, “he’s going to say he did his job even though he didn’t.” The attorney further argued the testimony by Anderson’s employees was “false, false, false.” Finally, the attorney asserted, “The company that thinks this way is going to continue to think this way until one voice stands up.... There is 12 of you, one voice.”

*9 Therefore, considering the argument in its proper context, we hold the trial court did not abuse its discretion in concluding the argument by Anderson’s counsel was not an appeal to ethnic prejudice. Even if, however, it could be construed as such, we hold the argument was not so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” See Phillips, 288 S.W.3d at 883.

2. Personal Attacks/Inflammatory Language

In asserting Anderson’s counsel engaged in personal attacks or used inflammatory language, the Givens/Brown families first cite to references Anderson’s counsel made to greed and money and to distinctions between Trevino’s approach to her case and the Givens/Brown families’ approach to their case. Specifically, the Givens/Brown families’ brief cites five specific comments made during Anderson’s closing argument referring to: (1) greed starting and being the downfall of the Givens/Brown litigation; (2) distinguishing between seeking rightful justice for the Trevino family and those in it for greed and money; (3) referring to a reference to the value of a Picasso by the Givens/Brown families’ attorney during his closing argument in suggesting a damage amount and stating the attorney was planning to spend his legal money on a Picasso; (4) referring to the Givens/Brown families starting with money in voir dire and ending with talking about money; and (5) referring to Trevino not including any questions in the jury charge about gross negligence because she is not greedy. Having reviewed the record as a whole, the trial court could have believed the comments were references back to comments and remarks made throughout trial during voir dire, opening argument, and by Polanco’s attorney during his closing argument.

Beginning with voir dire, Trevino’s attorney first addressed the possibility of “astronomically” high requests for damages with the venire, commenting:

You can probably figure out that there, because of the enormous losses that everybody has suffered, that there will be requests at the end of the case for you to consider significant amounts of money for compensation. It’s going to happen.

***

Moving beyond that, does anybody believe that in lawsuits like this you’ve heard of money damages that are just so astronomically high, that you just wonder how in the world that happened and I would never do something like that if I get a chance?

***

Okay. Does anybody have a belief, because of anything you have heard or experienced in the past in lawsuits like this, that the numbers that jurors in Maverick County or any other county have awarded are just astronomical, out of sight, crazy, whatever words you want to use, if you believe that, would you please tell me?

The Givens/Brown families’ attorney continued along this same theme and was the first to actually use the word “greed” during voir dire, commenting:

And I always have a hard time standing in front of a jury and saying here is what I believe you should do as a result of this, because it kind of makes me feel like a greedy lawyer. It makes me feel like you look at me and say this is one of those ambulance-chasing, greedy lawyers. But that’s my job.

And I believe that for these lives, the jury in this case should find compensation in the amount of $200 million. And I want to know right now how you feel about that. Anyone?

The second day of voir dire, questioning by the attorney for the Givens/Brown families returned to questions regarding damages, and one of the venire members commented,

*10 I believe I think the 200 million they are asking for is exorbitant. I don’t believe, like, in a person’s lifetime they would make that money. So I don’t know exactly what their professions were, but I don’t believe that that would be — I think it’s just too much money.

Trevino’s attorney began distinguishing Trevino’s approach to the case from the Givens/Brown families’ approach during opening argument, commenting:

It’s important, given what has happened in the last couple [of] days, for me to make sure you understand this. Folks, there is only one team that speaks for Ms. Trevino, and that’s these folks here with me. Nobody else speaks for her other than us.

And I’m telling you now, based upon that, we are not part of that $200 million number that you were given earlier; we are not.

We believe that the injuries and damages are substantial. But we are not part of that. So please don’t bump us into that category.

Anderson’s attorney continued drawing the same distinction between the plaintiffs’ cases during her opening statement, asserting:

Apparently, you’re not going to meet Mr. Polanco.3 But is it odd that the Brown and Givens families accept Mr. Polanco’s testimony?

They are defending the man who killed their families. Ms. Trevino is not doing that.

***

And isn’t it odd, after voir dire by the Brown-Givens families, not the Trevinos, but the Brown and Givens family where there was all this talk about money, money, and big figures, that they are defending Mr. Polanco and suing Anderson Columbia?

Interesting, because it’s about money.

Finally, during closing argument, Polanco’s attorney made the first reference to “justice” in comparing Polanco’s testimony that the road construction signs were not present with the other evidence, asserting:

They want to defend themselves by making up things about Mr. Polanco to get you to believe that, well, it doesn’t matter that we didn’t comply with the traffic control plan. Mr. Polanco should have stopped anyway. That’s the purpose.

And, ladies and gentlemen, I’m going to suggest to you, that’s not justice, and that’s not right.

Therefore, having reviewed the record as a whole, even if we assume the comments were improper, we hold the references to greed and money and the comments made distinguishing between Trevino’s case and the Givens/Brown case were not so extreme that a “juror of ordinary intelligence could have been persuaded by that argument to agree to a verdict contrary to that to which he would have agreed but for such argument.” See Phillips, 288 S.W.3d at 883; see also Queen City Land Co. v. State, 601 S.W.2d 527, 530 (Tex. Civ. App.—Austin 1980, writ ref’d n.r.e.) (holding counsel’s use of the term “greed,” while improper, “was curable by instruction”).

D. Violations of Orders on Motions in Limine

The Givens/Brown families also contend the trial court erred in not granting a mistrial because Anderson’s counsel repeatedly violated the trial court’s orders on Trevino’s and Polanco’s motions in limine. The purpose of a motion in limine “is to prevent the asking of prejudicial questions and the making of prejudicial statements in the presence of the jury without seeking the trial court’s permission.” Wackenhut Corp. v. Gutierrez, 453 S.W.3d 917, 920 n.3 (Tex. 2015) (internal quotation marks omitted). “[A] protective limine order alone does not preserve error.” In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 760 (Tex. 2013). Stated differently, a violation of a limine order does not preserve error for appellate review absent further objection. Pool v. Ford Motor Co., 715 S.W.2d 629, 637 (Tex. 1986) (noting “to preserve error as to an improper question asked in contravention of a sustained motion in limine, a timely objection is necessary”). The record does not show any objections were made to the alleged violations the Givens/Brown families cite in their brief.

*11 More importantly, the citations to the record in support of the Givens/Brown families’ argument are to Anderson’s closing argument, which we already held did not constitute incurable jury argument. We do not evaluate those arguments differently based on an assertion that they also violated a ruling on a motion in limine. See UMLIC VP LLC v. T & M Sales & Envtl. Sys., Inc., 176 S.W.3d 595, 617 (Tex. App.—Corpus Christi 2005, pet. denied) (evaluating contention that argument violated motion in limine under incurable jury argument standard).

The only exception to the record citations referencing closing argument is the record citation to a portion of the record in which the parties were discussing the admissibility of a redacted version of a mug shot of Polanco taken the day of the collision when he was arrested for criminally negligent homicide. The redacted version showed only Polanco’s face. From the discussions, it appears the mug shot was on a power point slide shown by Anderson during opening argument.4 The motion in limine the Givens/Brown families assert Anderson violated precluded Anderson from mentioning any of Polanco’s arrests or convictions. The parties argued extensively at trial regarding the admissibility of the redacted mug shot, which the trial court ultimately excluded. During those arguments, counsel for the Givens/Brown families conceded “[y]ou really can’t see very much” on the power point slide. Given the foregoing, even if the complaint had been preserved, we would overrule the Givens/Brown families’ argument that a mistrial should have been granted based on the alleged violation of the limine order precluding Anderson from mentioning any of Polanco’s arrests or convictions.

E. Consolidation of Trials

The Givens/Brown families finally make a one sentence reference to the consolidation of their lawsuit and the Trevino’s lawsuit for trial purposes as a proper basis for granting a mistrial. As Anderson notes in its brief, however, the Givens/Brown families filed the motion to consolidate the trials. “[A] party cannot complain on appeal that the trial court took a specific action that the complaining party requested, a doctrine commonly referred to as ‘the invited error’ doctrine.” Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005).

F. Conclusion

The Givens/Brown families’ second issue is overruled.

MOTION FOR NEW TRIAL

In their third issue, the Givens/Brown families assert the trial court abused its discretion in denying their motion for new trial because the evidence is factually insufficient to support the jury’s verdict and the mistrial order should not have been vacated. Having previously addressed and rejected these arguments, we overrule this issue.

CONCLUSION

The trial court’s judgment is affirmed.

Footnotes

1

The Honorable Cynthia L. Muniz signed the order consolidating the two underlying lawsuits. The Honorable Gloria Saldaña presided over the jury trial and signed the order granting a mistrial. The Honorable Maribel Flores signed the order vacating the order granting the mistrial and entered the final judgment.

2

We note a Spanish surname does not equate to a juror being of Hispanic origin. For example, an Anglo female could acquire a Spanish surname by marriage.

3

Polanco was not present during trial. His testimony was presented through a video deposition.

4

The record is unclear whether or not the mug shot on the power point slide was redacted.

Court of Appeals of Texas, San Antonio.

IN RE VILORE FOODS COMPANY, INC.

No. 04-19-00860-CV

|

Delivered and Filed: March 11, 2020

Original Mandamus Proceeding1, Honorable Joe Lopez, Judge

Attorneys & Firms

APPELLANT ATTORNEY, Christopher Andrew Lowrance, Royston, Rayzor, Vickery & Williams L.L.P, 802 N. Caranchua St., Suite 1300, Corpus Christi, TX 78401-0021.

APPELLEE ATTORNEY, Ryan King, The Law Offices of Gene S. Hagood, 1520 E Highway 6, Alvin, TX 77511-7702.

Sitting: Liza A. Rodriguez, Justice

MEMORANDUM OPINION

Opinion by: Patricia O. Alvarez, Justice

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

*1 In this original proceeding, Relator Vilore Foods Company, Inc. asserts the trial court erred by denying its plea to the jurisdiction. Vilore Foods argues the evidence conclusively establishes that Catalina Castillo, the real party in interest, did not exhaust her administrative remedies; the trial court lacks jurisdiction; and mandamus is proper.

We agree and conditionally grant the petition.

BACKGROUND

While Castillo was employed by Vilore Foods, she reported to her employer that she was injured on the job. She completed an incident report as required, and Vilore Foods sent her to a medical facility where she was treated the same day. After she was treated on several more occasions, she was notified by Vilore Foods’s workers’ compensation carrier that she was not eligible for further benefits. After she received the carrier’s denial, she continued to receive medical treatments. She eventually sued Vilore Foods for negligence, negligent supervision, and misrepresentation.

In its plea to the jurisdiction, Vilore Foods asserted that Castillo had not exhausted her administrative remedies, and the trial court lacked jurisdiction. The trial court denied the plea, and Vilore Foods petitioned this court for a writ of mandamus. Castillo filed a response, and Vilore Foods replied to Castillo’s response.

Before we address the parties’ arguments, we briefly recite the standard of review and applicable law.

STANDARD OF REVIEW

When there is no adequate remedy by appeal, mandamus relief is proper to correct a clear abuse of discretion. In re Tex. Mut. Ins. Co., 329 S.W.3d 1, 4 (Tex. App.—San Antonio 2009, orig. proceeding).

When we review the trial court’s decision for whether it applied the law correctly in a plea to the jurisdiction, “we take as true all evidence favorable to the nonmovant [and] indulge every reasonable inference and resolve any doubts in the nonmovant’s favor.” See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex. 2004).

EXCLUSIVE JURISDICTION

“The Workers’ Compensation Act vests the Workers’ Compensation Division with exclusive jurisdiction to determine a claimant’s entitlement to medical benefits.” In re Tex. Mut. Ins. Co., 329 S.W.3d at 5.

“If an agency has exclusive jurisdiction, a claimant must exhaust all administrative remedies in the agency before filing a claim in the trial court.” In re Tex. Mut. Ins. Co., 329 S.W.3d at 5.

*2 If the trial court’s subject matter jurisdiction is challenged in a plea to the jurisdiction and the undisputed evidence shows the claimant has failed to exhaust its administrative remedies, the trial court must grant the plea as a matter of law. See Miranda, 133 S.W.3d at 228.

PARTIES’ ARGUMENTS

In seeking mandamus relief, Vilore Foods argues, in effect, that the evidence conclusively establishes that Castillo did not exhaust her administrative remedies. It insists that the trial court lacked jurisdiction over any of Castillo’s claims and mandamus relief is appropriate to correct the trial court’s error.

Castillo does not dispute that she did not exhaust her administrative remedies. But she insists the trial court properly denied Vilore Foods’s plea to the jurisdiction for three reasons: Vilore Foods failed to conclusively prove its exclusive remedy affirmative defense, the estoppel doctrine bars Vilore Foods’s exclusive remedy defense, and her negligence, fraudulent misrepresentation, and negligent misrepresentation claims are not barred by the exclusive remedy provision.

ANALYSIS

The relevant evidence in this mandamus matter is largely undisputed. Where it is disputed, for purposes of this review, we take Castillo’s evidence as true. See Miranda, 133 S.W.3d at 228.

Castillo was Vilore Foods’s employee, she was at work in Vilore Foods’s facility when she was injured in a workplace accident, and Vilore Foods had workers’ compensation coverage in effect at that time. Castillo filed an accident report with Vilore Foods the same day, Vilore Foods referred her to a provider for treatment, and she was treated on several occasions.

After Castillo was denied further benefits by Vilore Foods’s carrier, she did not seek a decision from the Division of Workers’ Compensation on whether she was entitled to further compensation benefits. In her affidavit, she states she “did not pursue a workers’ compensation claim since they told me I was not in the course and scope of employment when I was injured.” Instead, she sued Vilore Foods for negligence, negligent supervision, and misrepresentation. Contra In re Tex. Mut. Ins. Co., 329 S.W.3d at 5.

But as in Fodge, Castillo’s “claim for damages from denied medical treatment is made no more viable simply by restating it under the other legal theories she asserted—negligence, [negligent supervision, and misrepresentation].” See Fodge, 63 S.W.3d at 804 (listing Fodge’s claims as “negligence, fraud, and statutory violations”). Each of Castillo’s claims are for damages resulting from the denied medical treatment, and “[t]o award [Castillo] damages equal to the cost of denied medical care is tantamount to ordering that the care be paid for and would ... circumvent the Commission’s exclusive authority to decide that issue.” See id.

The evidence conclusively establishes that Castillo did not exhaust her administrative remedies and each of her claims are for damages resulting from her denied medical treatment. Cf. id. The trial court erred by failing to grant Vilore Foods’s plea to the jurisdiction. See In re Tex. Mut. Ins. Co., 329 S.W.3d at 5.

CONCLUSION

*3 The evidence conclusively establishes that Vilore Foods was Castillo’s employer, Vilore Foods had workers’ compensation coverage, and Castillo did not exhaust her administrative remedies before she sued Vilore Foods. Thus, the trial court lacked jurisdiction over Castillo’s suit, and the trial court erred by not granting Vilore Foods’s plea to the jurisdiction.

We conditionally grant Vilore Foods’s petition for writ of mandamus. We order the trial court to (1) vacate its October 2, 2019 order denying Vilore Foods Company, Inc.’s plea to the jurisdiction and (2) render an order granting Vilore Foods Company, Inc.’s plea to the jurisdiction which dismisses Castillo’s cause for want of jurisdiction. The writ will issue only if the trial court fails to comply with this opinion and order within fifteen days from the date of this opinion and order.

Footnotes

1

This proceeding arises out of Cause No. 2019CVF00316 D1, styled Catalina Castillo v. Vilore Foods Co., Inc. and Raymundo Bretano, pending in the 49th Judicial District Court, Webb County, Texas, the Honorable Joe Lopez presiding.

Court of Appeals of Texas, San Antonio.

SHOPOFF ADVISORS, LP, Appellant

v.

ATRIUM CIRCLE, GP, Atrium Winn, LLC, Atrium Kavoian, LLC, Universal Square, LP, Appellees

No. 04-18-00438-CV

|

Delivered and Filed December 27, 2019

*896 From the 408th Judicial District Court, Bexar County, Texas, Trial Court No. 2018-CI-00676, Honorable Antonia Arteaga, Judge Presiding1

Attorneys & Firms

APPELLANT ATTORNEY, Anatole R. Barnstone, Attorney at Law, 713 West 14th St., Austin, TX 78701.

APPELLEE ATTORNEY, Carl J. Kolb, Carl J Kolb, PC, 926 Chulie Dr, San Antonio, TX 78216-6522.

Liza A. Rodriguez, Justice

OPINION ON APPELLANT’S MOTION FOR REHEARING

Opinion by: Liza A. Rodriguez, Justice

*897 On July 10, 2019, we issued an opinion and judgment in this appeal. See Shopoff Advisors, L.P. v. Atrium Circle, G.P., No. 04-18-00438-CV, 2019 WL 2996977 (Tex. App.—San Antonio July 10, 2019, no pet. h.). Appellant Shopoff Advisors, LP (“Shopoff”) then filed a motion for rehearing. After requesting a response, we grant Shopoff’s motion for rehearing, withdraw our prior opinion and judgment, and substitute this opinion and judgment in their place.

Shopoff appeals from the trial court’s interlocutory order denying its motion to dismiss filed pursuant to the Texas Citizens Participation Act (“TCPA”), also known as Texas’s anti-SLAPP statute. See TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001-.011.2 Shopoff contends the trial court erred in denying its motion because the claims brought by appellees (collectively referred to as “Atrium”) relate to the exercise of Shopoff’s right to petition. We reverse and render.

BACKGROUND

The dispute between Shopoff and Atrium is complicated and relates to multiple legal proceedings. It began in February 2016 when Shopoff failed to close on a real estate transaction. Shopoff had agreed to buy six properties from Atrium for $35,600,000.00 and had placed $2.5 million into an escrow account at First American Title Co. (“First American”). After Shopoff did not close on the transaction, Atrium argued that Shopoff had breached their agreement and forfeited the escrow money. The next month, March 2016, Shopoff was ready to close and sued Atrium for specific performance, demanding Atrium sell the properties to Shopoff. Shopoff also filed lis pendens3 on the properties. Atrium counterclaimed, and the case was referred to arbitration.

On March 29, 2017, a year later, the arbitrators issued their final award, determining that $2,006,100.00 of the $2.5 million on deposit with First American should be distributed to Atrium. The rest should be distributed to Shopoff. The arbitrators further ordered the parties to “promptly execute all documents required by First American Title Company to cause the release of such $2.5 million in accordance with this Award (and in no event more than three business days following receipt from the title company of such documents).” Shopoff was also ordered to “release all Notices of Lis Pendens from the real property records where such notices were filed for record within seven (7) calendar days from the date of this Award.”

*898 On April 3, 2017, Atrium’s attorney sent a letter via email to the escrow officer at First American demanding $2,006,100.00 of the escrow money be released to Atrium. Attached to the email was the arbitrators’ final award. On April 4, 2017, Shopoff’s counsel sent an email to the escrow officer stating that the “award will be challenged in Stare [sic] District Court.” Shopoff’s counsel instructed the escrow officer to “not release any funds until you have a final, nonappealable judgment from a court of last resort.” The escrow officer then emailed Atrium’s attorney the following:

We have been advised by counsel for Shopoff that the arbitration award will be challenged and, as such, we are not in a position to release the funds at this time.

On April 12, 2017, the trial court signed a final judgment confirming the arbitration award. The final judgment ordered the parties to provide a copy of the judgment to First American within three days. It also ordered the parties to “promptly execute all documents required by First American Title Company to cause the release of such $2.5 million in accordance with the Final Award and this Final Judgment, and to return such documents to First American” within fifteen business days of receiving the documents from First American. With respect to the notices of lis pendens filed by Shopoff, the final judgment ordered that the notices of lis pendens “are hereby cancelled, released, and vacated.”

On April 14, 2017, Shopoff filed a “Motion to Approve Deposit in Lieu of Supersedeas Bond,” requesting that the trial court set the amount of cash Shopoff needed to deposit to supersede the final judgment. On April 17, 2017, Shopoff filed its notice of appeal, stating that it intended to appeal the trial court’s final judgment. Shopoff’s appeal of the trial court’s final judgment was assigned Appeal No. 04-17-00241-CV in this court.

Six months later, on October 5, 2017, Atrium filed a “Motion to Enforce and Collect Judgment, for Turnover Order, Motion for Sanctions, and Motion to Require Supersedeas or Cash Deposit in Lieu of Supersedeas.” According to Atrium, Shopoff had never set its motion to approve deposit in lieu of supersedeas bond for a hearing; thus, Shopoff had never superseded the judgment. Atrium also complained that Shopoff had not released the notices of lis pendens on Atrium’s properties or executed the documents necessary to release the funds in escrow. Thus, Atrium argued it was entitled to enforcement and collection of the judgment.

On November 28, 2017, Shopoff filed a “Notice of Filing Deposit in Lieu of Supersedeas Bond,” explaining that it had filed a “Net Worth Affidavit.” The affidavit affirmed its net worth to be $218,630.00; thus, pursuant to Texas Rule of Appellate Procedure 24.1(a)(3), Shopoff deposited with the trial court clerk the sum of $109,315.00, or one-half of its net worth.

The next day, the trial court heard Atrium’s motion to enforce the judgment. After hearing testimony, the trial court took the matter under advisement. On December 22, 2017, the trial court signed an order granting Atrium’s motion to the extent it ordered Shopoff to execute a release of each of the lis pendens previously filed. Five days later, Atrium filed a motion for contempt, arguing Shopoff had not complied with the trial court’s order. That same day, the trial court issued a show cause order, ordering Shopoff to appear on January 9, 2018.4

*899 On January 2, 2018, Shopoff filed an original mandamus proceeding in this Court (Appeal No. 04-18-00001-CV), seeking a writ of injunction and requesting this Court to determine whether Shopoff’s filing of its net worth affidavit and a cash deposit was sufficient to stay execution of the judgment pending determination of the adequacy of the supersedeas deposit.

The next day, on January 3, 2018, in Appeal No. 04-17-00241-CV (Shopoff’s appeal from the trial court’s judgment), this court issued an opinion concluding that $900 of the escrow money on deposit with First American should have been distributed to Shopoff. Thus, this Court modified the trial court’s judgment to include $900 that was erroneously not distributed to Shopoff and affirmed the judgment as modified. Pursuant to this modified judgment, Atrium remained entitled to $2,006,100.00 of the $2.5 million on deposit with First American. On January 18, 2018, in Appeal No. 04-17-00241-CV (Shopoff’s appeal from the trial court’s judgment), Shopoff filed a motion for rehearing. On January 22, 2018, this court denied the motion for rehearing.

On February 7, 2018, in the mandamus proceeding filed in this court (Appeal No. 04-18-00001-CV), this court issued an opinion, explaining that Shopoff’s cash deposit, even if insufficient, superseded the trial court’s judgment. Thus, this court conditionally granted Shopoff’s petition for writ of mandamus. The trial court then vacated its December 22, 2017 order.

On February 14, 2018, Shopoff’s attorney sent a letter to Atrium’s attorney and attached a “Tender,” along with a proposed Agreed Order directing the trial court clerk to pay Atrium the sum contemplated by this court’s modified judgment in Appeal No. 04-17-00241-CV. On March 5, 2018, Atrium filed in the trial court a “Motion to Reconvene Hearing on Motion to Require Supersedeas, and Motion to Set, Increase, or Modify Supersedeas.” In its motion, Atrium complained that Shopoff would not indicate whether it intended to appeal this Court’s decision in Appeal No. 04-17-00241-CV to the Supreme Court and argued it was harmed by Shopoff’s appeals. In fact, Shopoff did not file a petition for review with the Texas Supreme Court; thus, the mandate in Appeal No. 04-17-00241-CV issued on April 4, 2018.

Meanwhile, on January 12, 2018, days after this court’s opinion in Appeal No. 04-17-00241-CV (Shopoff’s appeal from the trial court’s judgment) was issued, First American filed an interpleader action in the trial court, alleging that it was holding funds in escrow that were in dispute. First American alleged that “[a]s an innocent stakeholder,” it was entitled “to interplead those funds into the registry of the court.” Naming Shopoff and Atrium as defendants, First American asked the trial court to sign an order (1) accepting the tender of $2.5 million into the registry of the court, (2) discharging First American from all liability to the defendants with regard to the Purchase and Sale Agreement, and (3) dismissing First American from the suit.

On March 4, 2018, Atrium filed a counter-claim against First American and a cross-claim against Shopoff.5 Atrium alleged that Shopoff, together with First American, had refused to comply with the trial court’s judgment during the period of time it had not been superseded (i.e., from April 3, 2017 to November 28, 2017), which caused substantial damage to Atrium. Atrium further alleged that Shopoff had actually solicited, encouraged, directed, aided and attempted to aid First American to *900 breach its fiduciary duties to Atrium. Atrium also alleged that Shopoff had engaged in a conspiracy with First American to breach First American’s fiduciary duties. Alternatively, Atrium alleged that Shopoff was vicariously liable for First American’s conduct by aiding and abetting First American.

In response to the lawsuit, on May 4, 2018, Shopoff filed an “Anti-SLAPP Motion to Dismiss” pursuant to the TCPA. Shopoff argued Atrium’s theory of participatory liability was based on an email Shopoff’s attorney had sent to First American, informing First American that the arbitration award would be “challenged in Sta[t]e District Court” and directing First American to “not release any funds until you have a final, nonappealable [judgment] from a court of last resort.” Thus, Shopoff argued the TCPA applied because Atrium’s claims against it related to Shopoff’s right to petition. Further, Shopoff argued that Atrium cannot meet its burden of showing a prima facie case on the element of damages because its claims are barred by the economic loss rule.6 On July 18, 2018, the trial court denied Shopoff’s motion to dismiss pursuant to the TCPA. Shopoff then filed this accelerated appeal.

MOTION TO DISMISS UNDER THE TEXAS CITIZENS PARTICIPATION ACT

The TCPA’s stated purpose is to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” State ex rel. Best v. Harper, 562 S.W.3d 1, 8 (Tex. 2018) (citation omitted).

A party moving for dismissal under the TCPA has the initial burden of showing by a preponderance of the evidence that the legal action “is based on, relates to, or is in response to the party’s exercise” of: (1) the right of free speech; (2) the right to petition; or (3) the right of association. West v. Quintanilla, 573 S.W.3d 237, 243 n.9 (Tex. 2019).

If the respondent satisfies his burden, then the burden shifts back to the movant to establish “by a preponderance of the evidence each essential element of a valid defense” to the respondent’s claim. TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d). If the movant satisfies this burden, then the trial court must dismiss the legal action. Id.

In determining whether the parties have met their respective burdens, the trial court does not hear live testimony; the TCPA directs courts to “consider the pleadings and supporting and opposing affidavits stating the facts on which the liability or defense is based.” Id. § 27.006(a). The supreme court has “recently observed that the pleadings are ‘the best and all-sufficient evidence of the nature of the action.’ ” Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017)).

An appellate court reviews issues regarding interpretation of the TCPA de novo. S & S, 564 S.W.3d at 847.

The parties dispute whether the TCPA applies to the underlying claims brought by Atrium against Shopoff. Shopoff emphasizes that pursuant to the TCPA, the legal action need merely to “relate[ ] to ... a party’s exercise of the ... right to petition.” § 27.001(1).

Shopoff points to the allegations in Atrium’s counterclaim and cross-claim regarding the email sent by Shopoff’s counsel to the escrow officer. Shopoff argues this email is one of the alleged wrongful acts that form the basis of Atrium’s lawsuit against Shopoff, and because the email was a communication relating to a judicial proceeding, the TCPA applies to Atrium’s claims. In response, Atrium argues the email does not relate to the exercise of Shopoff’s right to petition because (1) it was a communication made “to a stranger to the suit”; (2) it was “not a part of taking an appeal or superseding the judgment” and was “not otherwise pertinent to seeking any relief by Shopoff”; and (3) it was not the sole basis for Atrium’s claims.

A. Facts Alleged in Atrium’s Cross-Claim and Counterclaim

In its counterclaim and cross-claim, Atrium described the “nature of [its] suit” as “a suit for breach of an escrow agreement and breach of fiduciary duties and for misapplication of fiduciary property, and for conspiracy and participatory liability amongst” First American and Shopoff. In the “facts” section, the counterclaim and cross-claim recited facts surrounding the failed real estate closing in February 2016, the arbitration proceeding, the April 12, 2017 final judgment confirming the arbitration award, the delay in Shopoff superseding the trial court’s final judgment, and the subsequent appeal. With respect to the email sent by Shopoff’s attorney to the escrow agent at First American, Atrium’s counter-claim and cross-claim alleged the following facts:

1. On April 3, 2017, days after the arbitrators issued their award, Atrium’s counsel, David Conoly, wrote to Ryan Hahn, an escrow officer with First American, and asked that *902 First American immediately comply with the arbitrators’ award by transferring $2,006,100 to Atrium’s bank account.

2. On April 4, 2017, George Slade, an attorney for Shopoff, emailed Ryan Hahn the following: “Ryan, that award will be challenged in Sta[t]e District Court. Do not release any funds until you have a final, nonappealable judgment from a court of last resort.”

3. “Moments later, Ryan Hahn wrote to David Conoly” the following: “We have been advised by counsel for Shopoff that the arbitration award will be challenged and, as such, we are not in a position to release the funds at this time.”

4. “Unquestionably Mr. Hahn did not consult with counsel for [First American] before making this determination minutes after Slade’s email.”

5. First American and Shopoff “did not intend that their conduct be limited only to the legal and had no need for legal advice.” First American “obeyed Shopoff, intentionally and recklessly, regardless of what is legal.”

6. Shopoff and First American “engaged in a concerted effort to frustrate [Atrium]’s efforts to obtain the escrow funds to which it is entitled under the final unsuperseded judgment in order to be of financial assistance to Shopoff.”

7. “Shopoff asked [First American] not to release the funds in escrow as ordered by the Court, and [First American] obliged in violation of a legal duty to [Atrium], ostensibly because the judgment was on appeal, though it had not even been superseded.” (emphasis in original). “However, [First American] was obligated to pay the funds to [Atrium], and Shopoff was obligated to comply with the award and judgment at all times when the judgment was not superseded.” “The judgment was never even arguably superseded until” November 29, 2017.

8. “As a result of Shopoff’s and [First American]’s refusals to comply with the final judgment, [Atrium] has suffered tremendous damages.” “Specifically, as Shopoff and [First American] knew, the Copperfield Square property’s loan was going to mature on June 1, 2016.”

Also in the “facts” section, the counterclaim and cross-claim alleged that during this first lawsuit, Shopoff filed notices of lis pendens relating to the real estate properties at issue:

By filing lis pendens on [Atrium’s] properties in March 2016, Shopoff ensured that [Atrium] would be driven into a default and foreclosure position on [one of Atrium’s properties, Copperfield] once the [Copperfield] loan matured. By failing to comply with the [purchase and sale] agreement and the unsuperseded [arbitrators’] award, [First American] ensured Shopoff would be successful in driving the loan into default. This is exactly what happened.

Atrium alleged it accrued hundreds of thousands of dollars in refinancing the loan on the Copperfield property and that because of the lis pendens on file and the pending appeal, “many potential buyers for the properties” had been “frightened off.”

B. Causes of Action Alleged in Atrium’s Cross-Claim and Counterclaim

Atrium’s cross-claim and counterclaim then alleged three causes of action: breach of contract, breach of fiduciary duty/misapplication of fiduciary property, and “participatory liability.” With regard to breach *903 of contract, the counterclaim and cross-claim alleged that Atrium and First American had “entered into a valid and enforceable contract whereby [First American] was to act as escrow agent relating to the Purchase and Sale Agreement [between Atrium and Shopoff] and to release the funds to the proper person at the appropriate time.” First American allegedly breached its contract with Atrium to act as a proper escrow agent because a “final judgment ha[d] been rendered by the Bexar County District Court ordering Shopoff and [First American] to release the escrow funds, and Shopoff and [First American] both refused to comply, though they are both bound by the contracts for sale of the various properties.” This breach allegedly caused Atrium “substantial damages, including incurring substantial attorney’s fees.”

With regard to breach of fiduciary duty/misapplication of fiduciary property, Atrium’s counterclaim and cross-claim alleged that First American, as the escrow agent, owed “fiduciary duties to each party to the contract.” Atrium alleged First American owed a duty to Atrium “to release the escrow funds as ordered” by the final judgment and “breached this duty by refusing to release the funds required during periods when the judgment was not superseded.” First American allegedly did “so at the direction of Shopoff, without any legal justification, and has demonstrated that it is in legion with Shopoff, and only Shopoff, in this transaction.” According to the allegations, First American thus “misapplied the fiduciary property by refusing to release it to its rightful owner,” Atrium, which in turn “caused [Atrium] substantial damages, including the substantial monetary losses and expenditures incurred when Copperfield Square was faced with a note maturity and was nearly foreclosed.” Atrium alleged that if First American had “paid out the escrow money when it was ordered to do so by the arbitration panel and then the court, [Atrium] would have had the funds necessary to pay the matured note on Copperfield Square and would have avoided all of the expenses associated with that debacle.” Atrium also alleged that First American was

liable for knowingly participating in Shopoff’s scheme to keep the escrow money tied up for as long as possible, with the intention of financially harming [Atrium]. After all, Mr. Shopoff admitted that he does not care about the damages he is causing to [Atrium] by not complying with the final judgment and removing the lis pendens and instructing [First American] to release the escrow funds. And [First American] has acceded to Shopoff’s every request, even as it owes a fiduciary obligation to [Atrium].

Thus, Atrium alleged that First American had “committed its conduct intentionally, knowingly, or recklessly misapplying the property it holds as a fiduciary in a manner that involves substantial risk of loss to the owner of the property or to a person for whose benefit the property is held.”

With regard to Shopoff, Atrium alleged Shopoff had “participatory liability”:

1. “Shopoff, acting with the kind of intent required for the offense of misapplication of fiduciary property, is responsible for the conduct of [First American] because with such intent it actually solicited, encouraged, directed, aided, or attempted to aid [First American] to commit the offense.”

2. First American “aided and abetted the conduct of Shopoff, and complied with the request of Shopoff, for its own financial gain, and for the financial gain and to render assistance to Shopoff, without legal justification and in violation of its fiduciary duty.”

*904 3. “Shopoff and [First American] engaged in a conspiracy to commit the conduct described herein.”

4. “Alternatively, Shopoff aided and abetted [First American] and is vicariously liable for [First American]’s conduct.”

Thus, Atrium’s cross-claim and counterclaim alleged that Shopoff (1) conspired with First American and (2) “aided and abetted” First American to breach its fiduciary duties to Atrium and misapply fiduciary property. As alleged by Atrium, the facts that form the basis for Shopoff’s liability under these claims are the allegations surrounding the email sent by Shopoff’s attorney to the escrow agent at First American.7

C. Application of the TCPA

In arguing that the TCPA does not apply to its claims, Atrium contends that communications or actions taken outside of litigation do not implicate the right to petition. Atrium then cites Id.

The employee’s claims under the Labor Code alleged that the employer had discriminated against him by (1) creating a hostile work environment; (2) representing to him that he was “not entitled to pursue” workers’ compensation benefits; (3) presenting false testimony during the claim process; and (4) terminating his employment. Id.

The court of appeals held that although the employer moved to dismiss all of the employee’s claims under the TCPA, only the employee’s conspiracy claim and one of his claims for unemployment discrimination were based on the employer’s participation in the contested case hearing before the workers’ compensation commission. Id.

However, the court of appeals concluded the employer had not established by a preponderance of the evidence that the employee’s remaining employment discrimination claims, which were based on the employer creating a hostile work environment, misrepresenting to him the availability of workers’ compensation benefits, and terminating his employment, were related to the exercise of the employer’s right to petition. Tervita to stand for the proposition that alleged conduct having no relation to a party’s right to petition does not implicate the TCPA.

Unlike in Ghrist v. MBH Real Estate LLC, No. 02-17-00411-CV, 2018 WL 3060331, at *4 (Tex. App.—Fort Worth 2018, no pet.) (holding that because “on its face, the letter that was the basis of the appellee’s suit was written about a matter connected with a lawsuit pending in the district court in Tarrant County,” appellants met their burden of showing appellees’ claim related to appellant’s right to petition).

Finally, we note that Atrium has also argued that Shopoff’s email was “baseless and a sham.” Atrium contends that “[r]egarding the underlying first lawsuit, no reasonable litigant could have reasonably expected success on the merits.” Atrium then admits that the “TCPA does not explicitly exclude lawsuits that constitute sham petitioning from the ‘exercise of the right to petition’ definition,” but argues for the creation of such a limitation. We decline to do so.

The United States Supreme Court has held that the right to petition government for redress of grievances under the First Amendment encompasses a right to access the courts. Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993).

While the right to petition under the United States Constitution has been interpreted through longstanding jurisprudence, the Texas Legislature, in enacting the TCPA, did not refer to this jurisprudence and made no explicit mention of sham petitioning. See *907 27.011. Instead, the Legislature specifically defined the “[e]xercise of the right to petition” in the TCPA to mean any of the following:

(A) a communication in or pertaining to:

(i) a judicial proceeding;

(ii) an official proceeding, other than a judicial proceeding, to administer the law;

(iii) an executive or other proceeding before a department of the state or federal government or a subdivision of the state or federal government;

(iv) a legislative proceeding, including a proceeding of a legislative committee;

(v) a proceeding before an entity that requires by rule that public notice be given before proceedings of that entity;

(vi) a proceeding in or before a managing board of an educational or eleemosynary institution supported directly or indirectly from public revenue;

(vii) a proceeding of the governing body of any political subdivision of this state;

(viii) a report of or debate and statements made in a proceeding described by Subparagraph (iii), (iv), (v), (vi), or (vii); or

(ix) a public meeting dealing with a public purpose, including statements and discussions at the meeting or other matters of public concern occurring at the meeting;

(B) a communication in connection with an issue under consideration or review by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(C) a communication that is reasonably likely to encourage consideration or review of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding;

(D) a communication reasonably likely to enlist public participation in an effort to effect consideration of an issue by a legislative, executive, judicial, or other governmental body or in another governmental or official proceeding; and

(E) any other communication that falls within the protection of the right to petition government under the Constitution of the United States or the constitution of this state.

TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4).

The Texas Supreme Court has repeatedly instructed that “[w]hen construing a statute, [a court’s] primary objective is to ascertain and give effect to the Legislature’s intent.” Id. Given that the Legislature explicitly defined the “exercise of the right to petition” and did not see fit to include an exception for sham petitioning, we decline to hold that such an exception exists.

D. Did Atrium establish by clear and specific evidence a prima facie case for each essential element of its claims?

Having determined that Shopoff met its burden of showing the TCPA applies to Atrium’s claims, we must now consider whether Atrium established by clear and specific evidence a prima facie case for each essential element of its claims against Shopoff. Shopoff argues that Atrium cannot make this showing because all of its *908 claims are derivative of its claims against First American. That is, Atrium alleged Shopoff (1) conspired with First American and (2) “aided and abetted”9 First American to breach its fiduciary duties to Atrium and misapply fiduciary property.10 Atrium did not allege that Shopoff owed its own fiduciary duty to Atrium. Shopoff emphasizes that because a suit for conspiracy cannot proceed without an underlying tort, Atrium had to show (1) the underlying fiduciary breach by First American, and (2) a basis on which Shopoff could be held liable as a participant or conspirator. Shopoff argues Atrium cannot meet this burden because “its contract claims and its tort claims against First American all derive from the same alleged breach: the failure to make timely disbursement of the previously-disputed escrow funds.” According to Shopoff, because Atrium has not shown an independent injury outside of the alleged untimely payment, it cannot prove damages under the economic loss rule.

“[C]ivil conspiracy is not an independent tort.” Id. at 142.

With respect to the element of damages, the economic loss rule is not an affirmative defense; it “is a consideration in measuring damages.Equistar, 240 S.W.3d at 868.

“The economic loss rule generally precludes recovery in tort for economic losses resulting from a party’s failure to perform under a contract when the harm consists only of the economic loss of a contractual expectancy.” Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986) (explaining that “[t]he acts of a party may breach duties in tort or contract alone or simultaneously in both” and courts look to the “nature of the injury” in determining “which duty or duties are breached” and whether the cause of action “sounds in contract alone”).

In making this determination, we do not look to “the manner in which” a cause of action was pled, but instead “look to the substance of the cause of action.” Applying the Economic Loss Rule in Texas, 64 BAYLOR L. REV. 204, 208 (2012) (explaining that the economic loss rule is “a statement or legal consideration of what is and is not to be considered as part of the proper measure of damages in a case to which it applies”).

Because Atrium has not met its burden of establishing by clear and specific evidence a prima facie case for the element of damages, we conclude the trial court erred in denying Shopoff’s motion to dismiss pursuant to the TCPA.

WAIVER

Finally, Atrium argues that Shopoff waived its right to assert its motion to dismiss under the TCPA because it was not timely filed. The TCPA provides that a motion to dismiss must be filed “not later than the 60th day after the date of service of the legal action.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.003.

CONCLUSION

For the foregoing reasons, we hold the TCPA applies because Atrium’s legal action is related to Shopoff’s exercise of its right to petition. Thus, with respect to Atrium’s claims against Shopoff, the burden shifted to Atrium to establish by clear and specific evidence a prima facie case for the element of damages. However, because the economic loss rule applies to Atrium’s claims, Atrium has not established a prima facie case for damages, and the trial court erred in denying Shopoff’s motion to dismiss. Therefore, we reverse the trial court’s order and render judgment that the following claims brought by Atrium against Shopoff are dismissed: (1) conspiracy to breach a fiduciary duty owed by First American to Atrium; (2) conspiracy to misapply fiduciary property; (3) aiding and abetting First American to breach its *911 fiduciary duty; and (4) aiding and abetting misapplication of fiduciary property.

Footnotes

1 The Honorable Antonia Arteaga signed the trial court’s order denying the motion to dismiss pursuant to the Texas Citizens Participation Act. The Honorable Peter Sakai presided over the hearing on the motion to dismiss.
2 Since the filing of the underlying lawsuit, the Legislature amended the TCPA. However, the amendments apply only to an action filed on or after September 1, 2019. An action filed before September 1, 2019 is governed by the law in effect immediately before September 1, 2019. As the underlying lawsuit was filed before September 1, 2019, the 2019 amendments to the TCPA do not apply, and the TCPA as it existed immediately before September 1, 2019 is quoted in this opinion. See Act of May 21, 2011, 82d Leg., R.S., ch. 341, § 2, 2011 Tex. Gen. Laws 961, 961–64 (current version at TEX. CIV. PRAC. & REM. CODE ANN. §§ 27.001–.011), amended by Act of May 24, 2013, 83d Leg., R.S., ch. 1042, §§ 1–3, 5, 2013 Tex. Gen. Laws 2499, 2499–500 (the version at issue in this opinion); see also Act of May 20, 2019, 86th Leg., R.S., ch. 378, H.B. 2730, §§ 1–9, 2019 Tex. Gen. Laws ––––, –––– (the 2019 amendments); Act of May 20, 2019, 86th Leg., R.S., ch. 378, H.B. 2730, §§ 11–12, 2019 Tex. Gen. Laws ––––, –––– (providing that a suit filed before the amendments become effective “is governed by the law in effect immediately before that date”).
3 The filing of a notice of lis pendens in the real property records notifies all persons that the real property is the subject matter of litigation and that any interests acquired during the pendency of the suit are subject to its outcome. See BLACK’S LAW DICTIONARY 950 (Bryan Garner, West 8th ed. 2004).
4 Shopoff complied with the trial court’s December 22, 2017 order by filing releases of the lis pendens on January 4, 2018.
5 Atrium filed an amended pleading immediately before the hearing on Shopoff’s motion to dismiss. Both parties agree that this amended pleading is not relevant to the instant appeal.
6 As explained fully later, the “economic loss rule generally precludes recovery in tort for economic losses resulting from a party’s failure to perform under a contract when harm consists only of the economic loss of a contractual expectancy.” Chapman Custom Homes, Inc. v. Dallas Plumbing Co., 445 S.W.3d 716, 718 (Tex. 2014).
7 As noted previously, Atrium’s cross-claim and counterclaim also alleged that Shopoff failed to release lis pendens on the properties at issue at a time when the judgment was not superseded. After reviewing the entire pleading, we agree with Shopoff that this allegation does not form the basis for Shopoff’s liability against Atrium; there is no allegation relating to how Shopoff’s failure to release lis pendens breached any fiduciary duty owed to Atrium. See In re Lipsky, 460 S.W.3d 579, 590-91 (Tex. 2015) (explaining that once TCPA is implicated, “mere notice pleading—that is, general allegations that merely recite the elements of a cause of action—will not suffice” and that “[i]nstead, a plaintiff must provide enough detail to show the factual basis for its claim”). As pled in its breach of fiduciary duty claim, this allegation that Shopoff failed to release lis pendens instead related to damages allegedly suffered by Atrium.
8 We note that Atrium argues the email was “made without legal right because Shopoff has no right to avoid enforcement of the judgment or to direct [First American] to assist it to avoid compliance with the mandatory orders in the judgment.” According to Atrium, “[b]y definition, the right to petition does not include acts that are tortious or illegal, or solicitations to avoid compliance with a mandatory injunction in an enforceable final judgment. Such tortious and illegal acts are therefore not subject to the TCPA’s protections.” Atrium cites no authority for this proposition. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.001(4).
9 It is not clear whether Texas recognizes the theory of participatory liability of “aiding and abetting” separately from a theory of civil conspiracy. See In re Lipsky, 460 S.W.3d 579 (Tex. 2015). Even if aiding and abetting is a separate theory of liability, it does not matter for purposes of our analysis because aiding and abetting would also be purely derivative and would require proof of the underlying tort.
10 Misapplication of fiduciary property is a form of breach of fiduciary duty that permits exemplary damages under certain circumstances. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.008(c)(10).

Court of Appeals of Texas, San Antonio.

AMERICAN HOME ASSURANCE COMPANY, Appellant

v.

Noela DE LOS SANTOS, Individually and as Next Friend of Kimberly A. Ruiz, Appellee

No. 04-18-00906-CV

|

Delivered and Filed October 30, 2019

From the 79th Judicial District Court, Jim Wells County, Texas, Trial Court No. 06-11-45222-CV, Honorable Richard C. Terrell, Judge Presiding

Attorneys & Firms

Robert D. Stokes, Flahive, Ogden & Latson, 8911 N Capital of Texas Hwy, Austin, TX, 78759, for Appellant.

Richard D. Nielsen, II, 5262 S. Staples, Suite 300, Corpus Christi, TX, 78411, for Appellee.

Sitting: Beth Watkins, Justice

MEMORANDUM OPINION

Patricia O. Alvarez, Justice

*1 Juan De Los Santos was employed by Ram Production Services, Inc. when he was killed in a motor vehicle accident while driving from his residence to the ranch where he was assigned to work. In the underlying cause, Juan’s wife, Noela De Los Santos, both individually and as next friend of Kimberly A. Ruiz, sought judicial review of the Texas Department of Insurance, Division of Workers’ Compensation appeals panel’s decision upholding a hearing officer’s decision that Juan was not in the course and scope of his employment at the time of the accident.

After the parties filed competing motions for summary judgment, the trial court denied Ram Production’s insurance carrier’s motion. The trial court concluded as a matter of law that Juan was in the course and scope of his employment at the time of the accident, reversed the appeals panel’s decision, and granted summary judgment for Noela.

American Home Assurance Company, Ram Production’s workers’ compensation insurance carrier, appeals the trial court’s judgment. The sole issue presented on appeal asks “Was the truck [Juan] was driving at the time of the accident gratuitously furnished by [Ram Production] rendering him outside the course and scope of his employment?” We reverse the trial court’s judgment and remand the cause to the trial court for further proceedings.

PROCEDURAL BACKGROUND

This is the second appeal arising from a summary judgment entered in Noela’s favor in the underlying cause. The judgment considered in the prior appeal was similarly based on competing motions for summary judgment. The first summary judgment, however, was based exclusively on agreed facts stipulated by the parties. This court reversed the first summary judgment, holding genuine issues of material fact existed as to whether Juan’s travel at the time of the accident originated in Ram Production’s business. See Am. Home Assurance Co. v. De Los Santos (De Los Santos I), No. 04-10-00852-CV, 2012 WL 4096258 (Tex. App.—San Antonio Sept. 19, 2012, pet. denied) (mem. op.).

After the cause was remanded, American Home moved for summary judgment on no-evidence and traditional grounds again asserting that Juan was not in the course and scope of his employment at the time of the accident. Noela filed a response and cross-motion for summary judgment, and American Home filed a reply. In addition to the previously agreed, stipulated facts, American Home filed an affidavit from Ram Production’s owner who was also Juan’s supervisor, and Noela filed her own affidavit and payroll records from Ram Production. After hearing the competing motions, the trial court concluded as a matter of law that Juan was in the course and scope of his employment. The trial court denied American Home’s motion and granted summary judgment for Noela.

STANDARDS OF REVIEW

“We review a trial court’s order granting summary judgment de novo, taking ‘as true all evidence favorable to the nonmovant,’ and ‘indulg[ing] every reasonable inference and resolv[ing] any doubts in the nonmovant’s favor.’ ” Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003)). “[W]hen [a] motion asserts both no-evidence and traditional grounds, we first review the no-evidence grounds.” Id.

*2 A trial court properly grants a “a defendant’s no-evidence motion for summary judgment if the plaintiff has produced no more than a scintilla of evidence on an essential element of the cause of action, that is, if the plaintiff’s evidence does not rise ‘to a level that would enable reasonable and fair-minded people to differ in their conclusions.’ ” Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

“To prevail on a traditional motion for summary judgment, however, the movant must ‘show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.’ ” Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998)).

“When the parties file competing summary judgment motions and the trial court grants one and denies the other, ‘we consider the summary judgment evidence presented by both sides, determine all questions presented, and if the trial court erred, render the judgment the trial court should have rendered.’ ” Sw. Bell Tel., L.P. v. Emmett, 459 S.W.3d 578, 583 (Tex. 2015)).

COURSE AND SCOPE OF EMPLOYMENT: ORIGINATION COMPONENT

“The Labor Code’s definition of ‘compensable injury’ requires that the injury ‘arise[ ] out of and in the course and scope of employment.’ ” TEX. LAB. CODE ANN. § 401.011(12).

The course and scope of employment definition contains two elements. SeaBright Ins. Co., 465 S.W.3d at 642). Here, only the first element is at issue.1

*3 An employee’s “travel to and from work generally [does] not originate in the employer’s business because ‘[t]he risks to which employees are exposed while traveling to and from work are shared by society as a whole and do not arise as a result of the work of employers.’ ” Id. at 642–43.

For example, evidence that the employer provided or paid for the transportation is probative of whether the employee’s trip originated in the employer’s business. Rose v. Odiorne, 795 S.W.2d 210, 214 (Tex. App.—Austin 1990, writ denied)).

“There is no bright line rule for determining if employee travel originates in the employer’s business; each situation is dependent on the facts. No single fact is [necessarily] dispositive ....” SeaBright Ins. Co., 465 S.W.3d at 642–43.

DE LOS SANTOS I

The only evidence in the record supporting the first summary judgment was the stipulated, agreed facts which we summarized in our decision in De Los Santos I as follows:

According to the agreed facts, De Los Santos was an employee of Ram Production Services. He did not work in an office, but instead was assigned to work on a gas lease located on a large piece of fenced ranchland. The employer furnished De Los Santos with a company-owned truck and paid for work-related fuel expenses. The truck was not for personal use. De Los Santos spent a significant part of his workday traveling to wells and job sites within a designated area known as the Buck Hamilton Ranch. De Los Santos entered the ranch through the only entrance, a gate where he was signed in by a guard. De Los Santos traveled to the exact same location each day to begin his workday, which started at 6:00 a.m. De Los Santos was a salaried employee, who was not paid extra for his travel.

*4 The accident that resulted in De Los Santos’s death occurred on a public highway at approximately 5:50 a.m. while De Los Santos was traveling in the company truck from his home in Orange Grove, Texas, to the Buck Hamilton Ranch near Hebbronville to begin his workday. On the morning of the accident, De Los Santos was scheduled to meet Rogelio Clarke at a well located on the ranch. Clarke and De Los Santos were going to perform work on the well. Clarke was not an employee hired by the employer, but was De Los Santos’s work-related acquaintance. The meeting was not scheduled by the employer. Clarke and De Los Santos had spoken on the phone to set up the meeting. De Los Santos had agreed to bring a barrel to the worksite to catch any petroleum liquid that spilled while they were working on the well.

De Los Santos I, 2012 WL 4096258, at *1.

In determining that Noela failed to conclusively establish Juan’s travel originated in Ram Production’s business, this court reasoned as follows:

[T]he evidence shows that the employer provided De Los Santos with a company truck, but the evidence fails to establish why the truck was furnished. None of the stipulated facts address the issues of whether the employer provided De Los Santos with a company truck because the worksite was remote, or because the company-furnished truck was part of the employer’s plan to have its employees arrive and leave at the same time. Nor do the stipulated facts show it was necessary for the employer to furnish De Los Santos with a company truck in order to induce him to work at this worksite. The evidence simply does not demonstrate that the company truck driven by De Los Santos was an integral part of his employment contract. And, the mere gratuitous furnishing of a vehicle by an employer to the employee as an accommodation is not sufficient to bring an employee within the protection of the workers’ compensation statute.

Id. at *5. In rejecting American Home’s argument that it met its burden on its competing motion for summary judgment by conclusively establishing Juan’s travel at the time of the accident did not originate in Ram Production’s business, we reasoned as follows:

[T]he summary judgment evidence showed that (1) De Los Santos worked on a gas lease located on a large piece of fenced ranchland; (2) De Los Santos did not have an office or central location as a fixed place of employment; (3) De Los Santos spent a significant period of his work time traveling to wells and job sites within the ranch; (4) at the time of the accident De Los Santos was traveling from his home in Orange Grove, Texas to the ranch, which was located near Hebronville; (5) at the time of the accident De Los Santos was driving a truck owned by his employer; (6) the truck was furnished as part of De Los Santos’s employment contract and was not for personal use; and (7) the employer paid for work-related fuel expenses. Indulging every reasonable inference in favor of Mrs. De Los Santos and resolving any doubts in her favor, we conclude there was a genuine issue of material fact as to whether De Los Santos’s travel at the time of the accident originated in his employer’s business.

Id. at *6. Based on the foregoing, we concluded “both parties failed to establish they were entitled to judgment as a matter of law” and, therefore, “the trial court erred in granting Mrs. De Los Santos’s summary judgment motion, but did not err in denying American Home’s summary judgment motion.” Id. We then remanded the cause to the trial court for further proceedings.

ADDITIONAL EVIDENCE PRESENTED ON REMAND

As previously noted, on remand, American Home also relied on an affidavit from Fidel Ramirez, who was the owner of Ram Production and Juan’s supervisor at the time of the accident. In response to the evidence we noted was missing in De Los Santos I, Ramirez stated Ram Production did not provide Juan the truck “as a necessity nor was it an integral part of [his] employment contract” because Juan’s job “did not require him to travel to other job sites.” In addition, Ramirez stated the truck “was not provided to [Juan] because the work site was remote.” Ramirez further stated he discovered Juan lived farther away from the work site when Juan returned to the company’s employment in 2004 than when he previously worked for the company and lived in Freer, Texas, which is approximately thirty miles from the work site. Upon discovering this, Ramirez stated he gave Juan “the option to either pick up and drop off the company provided truck in Freer, Texas on his way to and from the [work site] every day, or he needed to pay for a tank of gas a week.” Ramirez further stated the truck “was also not provided in order to facilitate ride sharing or car pools” because Juan “was not expected to pick up his coworkers or anyone else who was working for Ram Production.” Finally, the affidavit stated the truck was not furnished to induce Juan to work at the work site but only as an accommodation to Juan.

*5 Noela added her own affidavit to the summary judgment evidence in addition to several pages from Juan’s payroll records. As Noela stated in her affidavit, the payroll records show the company reported the truck as income to Juan and withheld taxes on that income as part of Juan’s wages. At the hearing, however, the trial court noted the company’s payroll records were simply consistent with IRS requirements.

In her affidavit, Noela stated Juan worked as a gauger and lease operator for Ram Production on a lease located on a very large tract of land over fifty miles from their residence. Noela also stated Juan carried the tools and equipment necessary to perform his job in the truck. Noela further stated Juan used the truck not only for transportation to the work site but also “as a necessary means to get around the rural oil lease and perform his job duties.” Noela described the truck as “a mobile office for Juan.” Noela stated Juan used the truck only for work and “had to use the company vehicle to be able to perform his job duties.” Finally, Noela stated “Juan would not have continued this job without being provided a company truck to get to and from the rural lease and to be able to do his job at the rural lease.”

NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

We first consider the trial court’s denial of American Home’s no evidence motion for summary judgment by considering whether Noela produced more than a scintilla of evidence to show Juan’s travel at the time of the accident originated in Ram Production’s business. See Hansen, 525 S.W.3d at 680.

Here, it is undisputed that Ram Production provided Juan with the truck and paid most of the fuel expenses. In addition, Noela’s affidavit provided more than a scintilla of evidence to establish the truck was furnished to Juan by Ram Production to induce him to work as a gauger and lease operator on a rural lease. See Hansen, 525 S.W.3d at 680. We next turn to the competing motions on traditional grounds.

TRADITIONAL MOTIONS FOR SUMMARY JUDGMENT

“The duty of the court hearing [a] motion for summary judgment is to determine if there are any issues of fact to be tried, and not to weigh the evidence or determine its credibility, and thus try the case on the affidavits.” Gilmartin v. KVTV-Channel 13, 985 S.W.2d 553, 555 (Tex. App.—San Antonio 1998, no pet.). This summary judgment principle prevents litigants from being deprived of “their right to a full hearing on the merits of any real issues of fact.” Id.

Here, each side raised genuine issues of material fact to defeat the other’s traditional motion. For example, Ramirez’s affidavit contains facts that conflict with averred facts in Noela’s affidavit. While Noela described the lease as being located in a rural area, Ramirez stated the truck was not provided to Juan because the work site was remote. Although Noela stated Juan would not have continued the job absent the provision of the truck, Ramirez stated he did not need to furnish the truck to Juan to induce him to work on the lease.

*6 Taking the evidence in Noela’s affidavit as true, we conclude Noela raised a genuine issue of material fact on whether the truck was an integral part of Juan’s employment contract which Ram Production was required to furnish in order to secure Juan’s services, thereby establishing the truck was a necessity and that Juan’s travel in the truck originated in Ram Production’s business. See Rose, 795 S.W.2d at 214.

Taking the evidence in Ramirez’s affidavit as true, we conclude American Home raised a genuine issue of material fact on whether the truck was merely gratuitously provided as an accommodation, thereby establishing Juan’s travel in the truck did not originate in Ram Production’s business. See McVey, 339 S.W.3d at 730.

The trial court was presented with conflicting affidavits supporting opposite findings. Because Noela and American Home each raised genuine issues of material fact, neither party was entitled to judgment as a matter of law, and the trial court erred in granting Noela’s motion.2

CONCLUSION

Because the summary judgment evidence raised genuine issues of material fact as to whether Juan’s travel at the time of the accident originated in Ram Production’s business, the trial court erred in granting summary judgment for Noela. The trial court’s judgment is reversed, and the cause is remanded to the trial court for further proceedings.

Footnotes

1

Although the “coming and going” exclusion generally excludes transportation to and from a person’s place of employment from being within the course and scope of employment, an exception to the exclusion applies when “the transportation is furnished as a part of the contract of employment or is paid for by the employer.” See TEX. LAB. CODE ANN. § 401.011(12)(A)(i)). Even where an exception to the “coming and going” exclusion applies, however, the employee must still satisfy the origination and furtherance elements. Id. In this case, the parties stipulated the truck Juan was driving was furnished as part of Juan’s employment contract, and American Home concedes the furtherance element of the course and scope definition was satisfied. Therefore, the sole issue on appeal is whether the evidence conclusively proves Juan’s fatal trip originated in Ram Production’s business.

2

Our decision is consistent with our prior decision in Id. at 187.

Court of Appeals of Texas, San Antonio.

HEB GROCERY COMPANY L.P., Appellant

v.

Maria Del Rosario DEL CID, Appellee

No. 04-19-00058-CV

|

Delivered and Filed: July 31, 2019

From the 111th Judicial District Court, Webb County, Texas, Trial Court No. 2018-CVF-001384-D2, Honorable Monica Z. Notzon, Judge Presiding

Attorneys & Firms

John Larios, Shelton & Valadez, P.C., 600 Navarro, suite 500, San Antonio, TX 78205, for Appellant.

Ryan King, The Law Offices of Gene S. Hagood, 1520 E Highway 6, Alvin, TX 77511-7702, for Appellee.

Sitting: Liza A. Rodriguez, Justice

MEMORANDUM OPINION

Opinion by: Liza A. Rodriguez, Justice

*1 Juan P. Del Cid Castillo sued HEB Grocery Company, L.P. asserting a negligence claim for injuries he sustained. In the same lawsuit, Juan’s wife, Maria Del Rosario Del Cid, asserted a loss of consortium claim. HEB appeals the trial court’s order denying its motion to stay the litigation of Maria’s loss of consortium claim pending the arbitration of Juan’s negligence claim. We reverse the trial court’s order and remand the cause to the trial court for the entry of an order staying all proceedings in the underlying cause pending the outcome of the arbitration of Juan’s claim.

BACKGROUND

Juan was injured while attempting to cut tree limbs. Juan and Maria subsequently sued HEB alleging Juan was injured in the course and scope of his employment, and his injuries were proximately caused by the negligence of HEB acting through its agents, employees, and representatives. Juan sought to recover damages for his injuries, and Maria sought to recover damages for loss of consortium.

HEB filed a motion to compel arbitration and to stay all proceedings. Attached to HEB’s motion was an “Election and Agreement Form” signed by Juan when he first started his employment with HEB.1 By signing the document, Juan agreed to arbitrate all disputes relating to workplace injuries under the Federal Arbitration Act.

Initially, both Juan and Maria filed a response opposing the arbitration of their claims. At the hearing on HEB’s motion, however, Juan agreed to submit his claim to arbitration, but Maria continued to oppose the arbitration of her claim, asserting she was a non-signatory to the agreement.

The trial court granted the motion as to Juan’s claim but denied the motion as to Maria’s claim. On appeal, HEB does not challenge the portion of the trial court’s order denying its motion to compel arbitration of Maria’s claim. Instead, HEB only challenges the portion of the trial court’s order denying its motion to stay the litigation of Maria’s claim pending the outcome of the arbitration of Juan’s claim.

JURISDICTION

In her brief, Maria asserts this court does not have jurisdiction to consider HEB’s interlocutory appeal of the trial court’s order denying the motion to stay Maria’s claim. Instead, Maria contends HEB was required to challenge the trial court’s ruling by seeking mandamus relief. In its reply brief, HEB responds this court has jurisdiction to consider its appeal based on section 51.016 of the Texas Civil Practice and Remedies Code.

Section 51.016 of the Code provides:

In a matter subject to the Federal Arbitration Act (9 U.S.C. Section 16.

*2 Miller, 405 S.W.3d 152, 154 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (noting FAA allows party to appeal an order refusing to stay litigation pending arbitration of its subject matter). Accordingly, we have jurisdiction to consider HEB’s interlocutory appeal of the portion of the trial court’s order denying its motion to stay the litigation of Maria’s claim.

DISCUSSION

The Federal Arbitration Act requires courts to stay litigation of issues that are subject to arbitration. Star Sys. Int’l Ltd. v. 3M Co., No. 05-15-00669-CV, 2016 WL 2970272, at *4 (Tex. App.—Dallas May 19, 2016, no pet.) (mem. op.).

Although the mandatory stay generally applies only to the parties to the arbitration agreement, a non-signatory party’s claims are also subject to the mandatory stay if “(1) the arbitrated and litigated disputes involve the same operative facts, (2) the claims asserted in the arbitration and litigation are ‘inherently inseparable,’ and (3) the litigation has a ‘critical impact’ on the arbitration.” Merrill Lynch, Pierce, Fenner, & Smith, Inc. v. Longoria, 783 S.W.2d 229, 231 (Tex. App.—Corpus Christi 1989, no writ) (noting proper action for trial court to take where husband’s claim is subject to arbitration is to stay wife’s derivative loss of consortium claim).

*3 Maria contends the trial court’s verbal ruling at the hearing showed the trial court intended to stay the trial and only allow discovery to proceed. Maria cites federal cases in her brief to assert the trial court had the discretion to allow discovery to proceed. HEB responds that no Texas case has recognized an exception to the mandatory stay that would allow discovery to proceed. We need not resolve whether the trial court had the discretion to allow discovery to proceed in this case because, as HEB also asserts, a trial court’s written order controls over any verbal pronouncement.2 See Rapaglia v. Lugo, 372 S.W.3d 286, 290 n.3 (Tex. App.—Dallas 2012, no pet.). Here, the trial court’s written order denies the motion to stay in its entirety. Because Maria’s claim was subject to the mandatory stay, the trial court erred in denying HEB’s motion to stay.

CONCLUSION

The portion of the trial court’s order denying HEB’s motion to stay the litigation of Maria’s claim is reversed, and the cause is remanded to the trial court for the entry of an order staying all proceedings in the underlying cause pending the outcome of the arbitration of Juan’s claim.

Footnotes

1

HEB was a non-subscriber under the Texas Workers’ Compensation Act but adopted a comprehensive HEB Work Injury Benefit Plan. Juan signed the Election and Agreement Form to receive benefits under the plan.

2

We note the Texas Supreme Court has commented on a stay being appropriate to prevent “a non-signatory affiliate [from] simultaneously conduct[ing] discovery and chip[ping] away at the same issues in litigation.” In re Merrill Lynch & Co., Inc., 315 S.W.3d 888, 892 (Tex. 2010).

Court of Appeals of Texas, San Antonio.

David MORA, Texas Sterling Construction Co. a/k/a Texas Crushed Concrete, and Sterling Construction Company, Inc. a/k/a Sterling Delaware Holding Company, Inc., Appellants

v.

Martin VALDIVIA, Sr. and Maria Cervantes Valdivia, both Individually and as Sole Heirs of the Estate of Martin Valdivia, Jr., Deceased, Appellees

No. 04-17-00565-CV

|

Delivered and Filed: July 17, 2019

*720 From the 37th Judicial District Court, Bexar County, Texas, Trial Court No. 2015CI09734, Honorable Michael E. Mery, Judge Presiding

Attorneys & Firms

APPELLANT ATTORNEY, Kevin F. Mickits, Upton Mickits & Heymann, LLP, 7800 IH-10 West, Suite 740, San Antonio, TX 78230.

APPELLEE ATTORNEY, Daniel J. T. Sciano, Tinsman & Sciano, Inc., 10107 McAllister Freeway, San Antonio, TX 78216.

Sitting: Liza A. Rodriguez, Justice

OPINION

Patricia O. Alvarez, Justice

This appeal arises from a personal injury suit filed after two constructions workers were traveling in their personal pickup truck, from San Antonio to Austin, immediately behind their foreman, and an unsecured toolbox fell out of their foreman’s trailer. The workers stopped to retrieve the toolbox and were struck by a third vehicle; one worker was injured and the other was killed. Appellees, Martin Valdivia Sr. (“Martin Sr.”) and Maria Cervantes Valdivia brought suit individually and as the sole heirs of the estate of their teenage son, Martin Valdivia Jr. (“Martin Jr.”). Appellees asserted claims for negligence and gross negligence against Appellants Texas Sterling Construction Co. (“Texas Sterling”), Texas Sterling’s parent Sterling Construction Company, Inc. (“SCC”), and Texas Sterling’s foreman David Mora (collectively, “the Sterling Appellants”).

The jury found the driver of the third vehicle was neither negligent nor responsible for any percentage of responsibility for the accident. The jury also found Texas Sterling was grossly negligent based on an act or omission by Foreman David Mora and Safety Director José González. The jury awarded $9,543,000.00 in actual damages and $2,800,000.00 in exemplary damages.

On appeal, the Sterling Appellants contend the evidence is legally and factually insufficient to support the jury’s findings that (1) Martin Sr. and Martin Jr. were not in the course and scope of their employment at the time of the accident; (2) the driver of the third vehicle was neither negligent nor partially responsible for the accident based on the defense of sudden emergency; and (3) Texas Sterling was grossly negligent based on an act or omission by David Mora and José González. The Sterling Appellants also contend the *721 trial court erred in admitting the police accident report while redacting portions of the same and excluding portions of San Marcos Police Officer Jeremy Sembera’s testimony. We affirm the trial court’s judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Prior to jury selection, the Sterling Appellants conceded that Texas Sterling, SCC, and Mora were responsible for the accident and stipulated to their negligence alleged in the appellees’ petition; therefore, the jury only determined negligence as to Norberto Ruelas Reyes. Texas Sterling and SCC also stipulated to their negligence in failing to establish a cargo securement policy and failing to properly train their employees.1 Therefore, we limit our summary of the evidence to that necessary to the disposition of the issues on appeal.

A. The Accident

Martin Sr. and Martin Jr. (the Valdivias) worked for Texas Sterling installing bridges, sidewalks, and driveways. David Mora was the Valdivias’ crew foreman.

Texas Sterling, the subcontractor on an Austin highway construction project (the “MoPac project”), assigned Mora’s crew to perform the work. Each week, the crew traveled to Austin on Monday morning and returned to San Antonio on Friday or Saturday. Texas Sterling provided crew members hotel rooms and a per diem. Texas Sterling provided transportation for crew members in a company van; alternatively, crew members could opt to ride with Mora in his company pickup truck or drive their personal vehicles to Austin. All crew members were paid an hourly wage based on hours worked at the job site; crew members were not paid for travel time or personal travel costs, such as gas, mileage, or auto insurance. Employees’ travel plans and routes were not controlled by Texas Sterling; the sole requirement was that employees arrive at the jobsite at 7:00 a.m., when their shift began.

1. The Accident

On January 19, 2015, the second week of the MoPac project, in the early morning hours, Martin Jr. and Martin Sr. elected to drive in Martin Sr.’s personal Ford F-150 pickup truck. Although not required to do so by Texas Sterling, Martin Sr. elected to meet Mora at the Texas Sterling San Antonio yard and follow him to Austin. Mora was towing a flat-bed trailer containing a large, 400-pound, eight-foot by four-foot by three-foot, empty, wooden toolbox. Mora constructed the toolbox out of Texas Sterling material to hold shovels, wood, saws, and other materials. The trailer also contained loose boards, bricks, and other materials.

Martin Sr. was following Mora, at approximately sixty-five miles-per-hour, in the middle lane of traffic on Interstate Highway 35 North, at approximately 5:52 a.m., when the toolbox fell from Mora’s trailer. Martin Sr. pulled over to the emergency shoulder on the right side of the roadway, exited his pickup truck, and attempted to retrieve the toolbox. Martin Jr. also exited the pickup truck. A white van swerved to avoid the toolbox and came to a stop in the left shoulder lane. A Chevy Tahoe, driven by Reyes, originally swerved to the left to avoid the toolbox, but upon seeing a person, turned to the right. Reyes clipped the corner of the toolbox, and collided *722 with Martin Sr.’s truck, injuring Martin Sr. and killing Martin Jr. on impact. As vehicles continued to try and avoid the toolbox, a vehicle struck the white van in the left emergency lane and two eighteen-wheelers “pulverized” the wooden toolbox.

2. The Investigation

As San Marcos Police Officer Daniel Cook was traveling home after his shift that morning, he drove by the scene less than a minute after the accident. Officer Jeremy Sembera and Commander Christopher Tureaud relieved Officer Cook and took over the investigation. The officers interviewed witnesses, took photographs and measurements, and ultimately concluded Mora’s unsecured toolbox was the contributing cause of the accident.

At trial, Mora explained, “I thought—we thought we’d nailed [the toolbox], but we never strapped it down. We never strapped it.” Mora further testified he worked on several jobsites for Texas Sterling and was never informed by the superintendent, or any other Texas Sterling or SCC supervisor, “that nailing [was] the inappropriate use of a securement with a box because it can come out when you’re traveling down the roadway.” Although Mora understood, by the time of trial, such methods were unacceptable, he did not know the toolbox was improperly secured at the time of the accident. Mora also acknowledged the trailer lacked a rear tailgate to prevent items from falling off the back and that he did not attempt to secure any other materials in the trailer. Texas Sterling never provided any training regarding installation of items or securement on a trailer. Mora further testified the only “securement securing” policy he remembers seeing or signing for Texas Sterling was after the accident.

Texas Sterling and SCC sent a team of officers and supervisors to the scene consisting of (1) José González, Texas Sterling’s Corporate Safety Director and SCC’s Safety Professional; (2) Rob Mitchell, Texas Sterling’s Division Safety Manager; (3) Nick Kakasenko, SCC’s Vice President of Safety and Health; (4) Greg McVey, Texas Construction’s Vice President of Safety Issues; and (5) Clint Warren, Texas Sterling’s South Texas Operations Manager. Based on their investigation, interviews, measurements, and photographs, the team “came to the conclusion that [the accident] was not work related, so we did not report” either Martin Jr.’s death or Martin Sr.’s injuries to OSHA.

[W]e went through all the different scenarios, when it happened, where it happened, where they were going, and we determined that it was a work—that it was not a work-related incident.

Additionally, González testified that, in his position as corporate safety director and safety professional, he was “the professional who [made] those determinations for the company that—whether an employee is or is not in the course and scope of their employment.”

Although the same team notified Texas Sterling’s risk management department of their determination of course and scope of employment, Texas Sterling still reported the “on-the-job” claims to its workers’ compensation carrier, Hartford Insurance Company. Hartford denied the claims because the Valdivias were “traveling to and from work,” a noncompensable claim under the Workers’ Compensation Act. Texas Sterling did not appeal Hartford’s determination. Several supervisors, including González and Kakasenko, testified they agreed with Hartford’s determination the Valdivias were not in the course and scope of their employment at the time of the accident.

*723 B. The Charge of the Court

The first issue before the jury was whether the Valdivias were in the course and scope of their employment with Texas Sterling at the time of the accident on January 19, 2015. The jury found they were not in the course and scope of their employment at the time of the accident.

The second issue before the jury was negligence. The Sterling Appellants conceded negligence as to Texas Sterling, SCC, and Mora; however, the jury was asked to determine whether Reyes, the driver of the Chevy Tahoe, proximately caused the accident. The jury answered “No.” The jury was also asked to apportion percentages of responsibility to those parties found to have caused or contributed to the accident. Over the Sterling Appellants’ objection, the trial court included an instruction on “sudden emergency.” The jury found Reyes did not bear any percentage of responsibility and apportioned the liability as follows: Texas Sterling 65%, SCC 30%, Mora 5%, and Reyes 0%. Lastly, the jury found the harm to Martin Sr. resulted from the gross negligence of Mora and González and that their gross negligence was attributable to Texas Sterling.

The jury awarded $9,543,000 in actual damages and $2,800,000 in exemplary damages. This appeal ensued.

On appeal, the Sterling Appellants contend (1) the evidence is legally and factually insufficient to support the jury’s findings on course and scope of employment, defense of sudden emergency, and gross negligence; and (2) the trial court erred regarding evidentiary rulings that singularly or cumulatively resulted in harmful error. We affirm the trial court’s judgment.

We turn first to the Sterling Appellants’ legal and factual sufficiency claims regarding whether the Valdivias were in the course and scope of their employment and whether the defense of sudden emergency supported the jury’s finding regarding Reyes.

LEGAL AND FACTUAL SUFFICIENCY CLAIMS

The Sterling Appellants challenge the legal and factual sufficiency of the evidence supporting the jury’s findings that (1) the Valdivias were not in the course and scope of their employment at the time of the accident and (2) Reyes was neither negligent nor partially responsible for the accident based on the defense of sudden emergency.

A. Standard of Review

“The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” Id. at 807. Evidence is legally insufficient when the record discloses

(a) a complete absence of evidence of a vital fact; (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact; (c) the evidence offered to prove a vital fact is no more than a mere scintilla; or (d) the evidence establishes conclusively the opposite of a vital fact.

Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

In a factual sufficiency review, an appellate court considers all the evidence supporting and contradicting the jury’s finding. City of Keller, 168 S.W.3d at 822.

Whether reviewing the legal or factual sufficiency of the evidence, the jurors are the sole judges of the credibility of the witnesses and the weight to be given their testimony and may choose to believe some witnesses and not others. Id. at 819.

B. “Course and Scope” Analysis

The Sterling Appellants argue Appellees’ claims for common law remedies are barred because their injuries were sustained in the course and scope of their employment.

1. Texas Workers’ Compensation Act

The Texas Workers’ Compensation Act (“Act”) provides:

Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee.

TEX. LAB. CODE ANN. § 401.011(10).

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.

Id. at § 401.011(12); accord SeaBright Ins. Co., 465 S.W.3d at 642.

To prevail on a course and scope claim, a party must show the injury “(1) relate[d] to or originate[d] in, and (2) occur[ed] in the furtherance of, the employer’s business.” SeaBright Ins., 465 S.W.3d at 642–43.

We turn first to whether the Valdivias’ injuries originated in Texas Sterling’s business.

2. Origination

All employees must necessarily travel to and from work; such travel “makes employment possible.” id. at 643.

3. Arguments of the Parties

The Sterling Appellants raise several arguments regarding origination. First, Texas Sterling argues their company policy only pays for hotel accommodations beginning on Monday evening, but requires the Valdivias to be on the jobsite at 7:00 a.m., and the distance from San Antonio mandated the Valdivias travel to Austin early Monday morning. Second, under the continuous-coverage doctrine, the Valdivias were employees assigned on an atypical, out-of-town business trip where the company furnished food, provided accommodations, and required travel on roads with which the driver may not be familiar. Third, the Valdivias were on a special mission for their employer.

Appellees counter the facts establish this was simply a case of two individual employees traveling to work to begin their workday.

4. Evidence Adduced at Trial

The evidence surrounding the accident was uncontested.

Texas Sterling selected Mora’s crew to work on the MoPac project in Austin. Although the record does not reflect that Mora’s crew previously worked on any projects outside of San Antonio, the crew was part of Texas Sterling’s South Texas Division, covering the geographic territory between Waco and Laredo. Texas Sterling provided temporary housing in Austin and each member of the crew received a $35.00 per diem for food. The Valdivias were injured while traveling from San Antonio directly to the job site in Austin; neither *726 was injured while traveling between temporary housing and the job site.

Kevin Manning, Texas Sterling’s National Risk Manager, testified the Valdivias were traveling in their own vehicle, and Texas Sterling did not pay a stipend for maintenance, service, insurance, or registration for the vehicle. Neither Valdivia was reimbursed for the time driving the vehicle, mileage, or gas. No designated route was required and the Valdivias were not required to follow Mora to the jobsite. Manning further verified the Valdivias were not required to wear steel-toed shoes, protective glasses, or other protective equipment while in the vehicle. The Valdivias were hourly employees; their time started at the jobsite at 7:00 a.m.; the accident occurred at 5:52 a.m., near San Marcos, Texas.

The Texas Sterling and SCC team of officers and supervisors at the scene determined the Valdivias were not in the course and scope of their employment. González, Texas Sterling’s Director of Safety, testified he was the individual responsible for notifying OSHA, within eight hours of an accident, regarding any fatalities or on-the-job employee injuries. At trial, González testified he and his team of supervisors concluded the accident was not work-related because neither Martin Sr. nor Martin Jr. was in the course and scope of his employment. González reiterated that he did not believe it at the time of the accident and he did not believe it at the time of trial. González testified he did not report the incident to OSHA, did not authorize Kakasenko to report the incident to OSHA, and he agreed with Hartford’s determination denying workers’ compensation benefits.

At trial, the Sterling Appellants relied on Manning’s testimony, “in my opinion, [the Valdivias] were furthering our business by getting that box out of the roadway for us.” Manning conceded that “[retrieving] company property from the middle of the highway” was not an assigned job and the Valdivias were traveling from San Antonio to Austin in route to a jobsite at the time of the accident.

5. Analysis

The Sterling Appellants argue Texas Sterling’s South Texas division was based in San Antonio and worked on jobs in San Antonio. See Bushman, 480 S.W.3d at 675 (holding employee’s travel to Elgin was in course and scope because it “was not merely a trip from home to a nearby job site to begin a regular workday, but rather was an atypical assignment in a different city”). The MoPac project was a Gulf Coast division project on which the San Antonio division was assisting, and crews were being sent from San Antonio. For Mora and his crew, traveling to Austin was an express condition of their employment. Based on the length of the commute, Texas Sterling provided hotel accommodations, a per diem for food, and various transportation options.

The Texas Supreme Court has long recognized “that an employee can have more than one fixed place of employment and that fixed place of employment can change according to the nature of his work.” McVey, 339 S.W.3d at 733.

The Valdivias were assigned to work on the MoPac job. The testimony supports the crew members could choose to ride in a company-owned vehicle driven by a company employee, with Mora in a company-owned pickup truck, or by any other means. The only employee on Mora’s crew *727 who drove a company-owned vehicle was Mora. See McVey, 339 S.W.3d at 731 (concluding in course and scope of employment when required to attend leadership training meeting, ordered to travel to Houston, provided vehicle and paid for expenses, different from regular safety meetings, and mandated manner of travel).

MoPac’s jobsite being in Austin does not establish origination. Texas Sterling’s directing the Valdivias to travel to an out of town jobsite does not establish origination. See McVey, 339 S.W.3d at 732–33 (establishing special mission when circumstances of the employee’s trip were largely dictated by the employer’s rules regarding carpooling and minimizing travel expenses). Mora’s crew was required to be on the jobsite, Monday morning at 7:00 a.m. How each employee arrived at the jobsite was at the sole discretion of the employee. When the accident occurred, neither Martin Sr. nor Martin Jr. were on Texas Sterling’s timeclock. The record is replete with Texas Sterling and SCC representatives, the individuals responsible for making such determinations, concluding that neither Valdivia was in the course and scope of his employment at the time of the accident.

*728 Based on a review of the entire record, viewing the evidence in the light most favorable to the jury’s verdict, we conclude the evidence is legally sufficient to support the jury’s finding that neither Martin Sr. nor Martin Jr. was in the course and scope of their employment. See Crosstex N. Tex. Pipeline, 505 S.W.3d at 615.2

We therefore overrule the Sterling Appellants’ issue regarding course and scope of employment.

C. Sudden Emergency

In their third issue, the Sterling Appellants argue the evidence is legally and factually insufficient to support the jury’s finding that Reyes was neither negligent nor partially responsible for the accident based on the defense of sudden emergency.

1. Civil Practice and Remedies Code Chapter 33

Under Chapter 33 of the Texas Civil Practice and Remedies Code, the trier of fact must determine the percentage of responsibility of certain persons for the harm at issue. See Samco Props., Inc. v. Cheatham, 977 S.W.2d 469, 478 (Tex. App.—Houston [14th Dist.] 1998, pet. denied).

In Question 3(d) of the jury charge, the jury answered “No” to whether the negligence, if any, of Reyes proximately caused the accident. In Question 4, the jury apportioned responsibility for causing or contributing to causing the accident as follows:

The Sterling Appellants argue the jury’s finding that Reyes was not negligent and its assignment of 0% responsibility to Reyes is necessarily tied to the sudden emergency instruction in the jury charge.

2. Sudden Emergency

*729 a. Elements of Sudden Emergency Defense

A sudden emergency instruction advises the jury that it need not place blame on a party if the evidence shows conditions beyond the party’s control or the conduct of a non-party caused the accident in question. Dillard, 157 S.W.3d at 432). To warrant a sudden emergency instruction, the record must contain evidence of the following three elements:

(1) an emergency situation arose suddenly and unexpectedly;

(2) the emergency situation was not proximately caused by the negligent act or omission of the person whose conduct is under inquiry; and

(3) after an emergency situation arose that to a reasonable person would have required immediate action without time for deliberation, the person acted as a person of ordinary prudence would have acted under the same or similar circumstances.

Dodson v. Muñoz, No. 04-17-00409-CV, 2018 WL 3747748, at *3 (Tex. App.—San Antonio Aug. 8, 2018, no pet.) (mem. op.).

b. Evidence

Appellees relied heavily on the testimony of Dr. Jahan Eftekhar, an accident reconstructionist, to prove Reyes was neither negligent nor responsible for causing or contributing to causing the accident. The investigation conducted by Dr. Eftekhar’s team included physically inspecting the accident scene; photographing and taking measurements; inspecting the vehicles; reviewing discovery materials, i.e., depositions, a videotape taken on the morning in question, police reports and photographs; and conducting analysis.

i. Evidence relied on by Dr. Eftekhar

For his analysis, Dr. Eftekhar relied on the statements of several of Texas Sterling and SCC’s corporate representatives and supervisors.

Manning, Texas Sterling’s National Risk Manager, explained “[Mora’s] trailer has a warning on it. [The warning] talks about securement of the load because [the items] may fly out or fall off the trailer, and [Mora] violated that [warning], too.” He testified that Mora violated good common sense in not properly securing the load. According to Manning, the accident took place because Reyes was “responding to an emergency situation caused by [Mora] failing to properly secure his load.”

Nick Kakasenko, SCC’s Vice President of Safety and Health, reported that “if the box was secured, this accident wouldn’t have happened.” Kakasenko further opined, that

[N]obody else contributed to the accident except the toolbox falling off. The root cause of this occurrence was Mora’s failure to secure the load, number one, failure of the superintendent to the property to supervise, and number three, lack of a policy in load securement.

*730 Based on the internal investigation conducted by SCC and Texas Sterling, Manning, González, and Kakasenko, along with Robert Mitchell, Texas Sterling’s Division Safety Manager, reached the unanimous conclusion the box had never been properly attached to the trailer, was not nailed down at all on the day of the accident, and that it was the root cause of the accident.

González, Texas Sterling’s Director of Safety, testified Texas Sterling did not have either a written cargo securement protocol or a training program for its employees and allowed loose materials in the trailer. Although Mora testified he thought the toolbox was nailed to the trailer, the trailer bed did not have any nail holes; suggesting the toolbox was not, and had never been, nailed to the trailer. Regardless, Dr. Eftekhar explained, “[n]ailing is not a proper way of [securing the box to the trailer]. You have to bolt [the box] in because nails come out anyway.” Dr. Eftekhar further explained improper cargo securement was a known hazard for more than a decade before the accident and Texas Sterling failed to take reasonable steps to implement a securement policy, train their employees, or properly supervise their employees.

Dr. Eftekhar reviewed the photographs, measurements, police officer reports, other witness statements, and the Coban dash camera video captured by Officer Cook driving by the scene almost immediately after the accident. Reyes provided two nearly identical statements. The statements were given in Spanish and translated into English. Reyes swerved to miss either the white van or the toolbox and in doing so struck Martin Sr.’s truck, injuring Martin Sr. and killing Martin Jr. Commander Tureaud concluded the accident was “clear-cut” because “if the box hadn’t have fallen off the trailer, this would not have happened.”

ii. The Four Sequential Events

Based on all of the measurements, photographs, and other evidence, Dr. Eftekhar made several conclusions regarding Mora’s and Martin Sr.’s vehicles.

Martin Sr. saw the box suddenly start slipping off the back of the trailer when he pulled to the emergency shoulder of the roadway and was struck when he exited his truck. Martin Jr. was also struck exiting the truck. “[Dr. Eftekhar’s] reconstruction show[ed] that [Martin Jr.] was out of the truck on the [passenger] side of their own truck on the grassy area.”

Dr. Eftekhar opined four events occurred in the following order:

(1) “[T]he toolbox falls out of the trailer, which was told by Mr. Mora.”

(2) “[T]he Tahoe clips the toolbox which is on the roadway and goes to the right and rear-ends a truck. Mr. Valdivia’s truck is parked on the emergency shoulder.”

(3) “[A] blue Chevrolet truck rear-ends a white Chevrolet Express van. The Express van was in front of the Tahoe, was to left, and ends up in the shoulder—emergency shoulder on the left side, and this truck impacts that one on the shoulder.”

(4) “[T]he box, which is still on the roadway, it gets impacted by a tractor trailer that we see in the Coban.”

iii. Driver Expectancy

Dr. Eftekhar also testified regarding the theory of “driver expectancy”—all drivers must be prepared for the driver immediately in front to quickly apply the brakes to the vehicle. Some obstacles are expected, like cattle or deer on a rural road. Dr. Eftekhar further opined that a driver cannot reasonably expect a large toolbox in the middle of a state highway. Dr. Eftekhar *731 explained the process requires an individual (1) to perceive a cue, i.e., a car, and (2) time to react, i.e., the braking, steering, or a combination of braking, accelerating, and steering.

Based on the statements, the pictures, the information taken from the vehicles, and the measurements at the scene, Dr. Eftekhar testified Reyes braked approximately 150 feet, or a little more than 1.8 seconds, before the box. To account for Reyes seeing the box, processing the box, and making a decision how to react, Dr. Eftekhar used the average number used by accident reconstructionists—1.5 seconds. Multiplying the time by 1.5 to determine feet per second, assuming Reyes was traveling seventy miles-per-hour, Dr. Eftekhar calculated Reyes was approximately 340 feet from the box when he first saw it. Dr. Eftekhar opined:

the driver of the Tahoe, Reyes, perceived and reacted by braking and steering when he experienced a sudden and unexpected emergency, being either the white van in front or the—or the toolbox on the roadway. The emergency included an abrupt lane change by the white van and a non-conspicuous wooden toolbox laying in the middle of the dark, high-speed interstate highway. His decision of going to his right was very spontaneous after viewing the vehicle ahead making a sudden and unexpected emergency maneuver to its left. Reyes’ actions were prudent and reasonable under the circumstances, which means clearly he took one side to go either left or right. Left already was a white van there. He went to the right. And he says that he saw someone walking or running on that side, so per his statement, that’s why he made the decision to go to the right.

When asked whether a reasonably prudent person could have avoided the box given the circumstances of the roadway and the lighting, Dr Eftekhar explained,

If you have the visual to see it and you demand to see it, then you can avoid it the way that the white van did, but it ended up in the emergency left side shoulder. If the white van was in front in a short distance, then what happens is what happened to Mr. Reyes. He has to make a quicker decision.

Dr. Eftekhar testified that determining whether Reyes was negligent or responsible requires considering numerous factors: lack of stability control, the nighttime conditions, travel at seventy-miles-per-hour, visibility, conspicuity, and an unexpected event. In his opinion, Reyes acted in a reasonable and prudent manner and was not negligent at the time of the accident.

c. Analysis

The Sterling Appellants argue (1) “[a] box lying at rest on a highway does not by itself create a sudden emergency” unless there is evidence Reyes had no or little time to react to it; and (2) the only evidence of a sudden emergency is Dr. Eftekhar’s testimony there would be no emergency unless Reyes was closely following the white van. The Sterling Appellants further contend Dr. Eftekhar’s testimony is based on “nothing more than pure speculation and assumption.”

The purpose of a sudden emergency instruction is to advise the jurors, that in certain situations, blame need not be placed “on a party to the suit if the evidence shows that conditions beyond the party’s control caused the accident in question or that the conduct of some person not a party to the litigation caused it.” Dillard, 157 S.W.3d at 432. Dr. Eftekhar testified he utilized several sources in reconstructing the accident and his theory of “driver expectancy” to explain why Reyes was not responsible for causing the accident. Dr. *732 Eftekhar’s concrete scientific data was fundamentally based on photographs and measurements from the scene of the accident.

Dr. Eftekhar also downloaded the data from the electronic black box in Reyes’s Tahoe. From this data, Dr. Eftekhar was able to determine that prior to the accident, Reyes was traveling 69.3 miles-per-hour, below the 70 miles-per-hour speed limit, was “[m]ore likely than not” using cruise control, and first applied his brakes 1.8 seconds before hitting the toolbox. Although Dr. Eftekhar was unable to determine how closely Reyes was following the white van, the evidence that Reyes hit his brakes 1.8 seconds before hitting the toolbox is some evidence his following distance was reasonably prudent.

Based on a review of the entire record, viewing the evidence in the light most favorable to the jury’s verdict, the record contains evidence from which the jury could reasonably have inferred (1) the wooden toolbox on the highway was sudden and unexpected, (2) that Reyes’s actions prior to the emergency were not a proximate cause of the collision, and (3) that the emergency, to a reasonable person, would have required immediate action without time for deliberation. We therefore conclude the evidence is legally sufficient to support the jury’s finding that Reyes was neither negligent nor partially responsible for the accident. See Gonzalez v. Cruz, No. 13-07-351-CV, 2008 WL 2764565, at *4 (Tex. App.—Corpus Christi July 17, 2008, no pet.) (mem. op).

Having concluded the evidence was legally and factually sufficient to support the jury’s verdict as to course and scope of employment and sudden emergency, we turn to whether the evidence is legally and factually sufficient to support the jury’s finding of gross negligence against Texas Sterling.

GROSS NEGLIGENCE

The Sterling Appellants next argue the evidence is legally and factually insufficient to support the jury’s finding that the harm to Martin Sr. resulted from gross negligence attributable to Texas Sterling based on the acts or omissions of David Mora and José González.

A. Elements Necessary to Prove Gross Negligence

In Boerjan v. Rodriguez, the Texas Supreme Court explained that gross negligence requires a showing of two elements:

(1) viewed objectively from the actor’s standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed[s] in conscious indifference to the rights, safety, or welfare of others.

Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008).

Therefore, to support a gross negligence claim, Appellees were required to prove Texas Sterling was aware that failing to implement a cargo securement policy and properly train their employees regarding safe cargo securement posed an extreme degree of risk, and had actual, subjective awareness of the risk involved in failing to implement a policy and/or training program, but nevertheless proceeded to allow their employees to travel with unsecured cargo with conscious indifference to Martin Sr.’s safety or welfare. See Telesis/Parkwood Retirement I, Ltd. v. Anderson, 462 S.W.3d 212, 245 (Tex. App.—El Paso 2015, no pet.).

Because the Sterling Appellants concede that the unsecured toolbox created an extreme degree of risk, we limit our discussion to whether the evidence is legally and factually sufficient to support the jury’s finding regarding the second prong of the gross negligence test—the subjective element.

B. Standard of review

Because gross negligence must be established by clear and convincing evidence, we apply a heightened standard of sufficiency review. Id. at 625.

When neither party objects to the questions submitted to the jury, we measure the sufficiency of the evidence against the actual jury charge submitted to the jury.3 *734 id.

C. Argument of the Parties

The Sterling Appellants argue the record contains no evidence that either Mora or González was grossly negligent or that any acts committed by Mora or González are attributable to Texas Sterling. Specifically, the Sterling Appellants argue there is no evidence of (1) Mora being subjectively and actually aware of the risk caused by the unsecured toolbox and consciously disregarded that risk or (2) González committing any act or omission prior to the accident.

Appellees counter that the evidence, including (1) Mora’s failure to conduct required safety checks or follow manufacturer’s instructions and (2) González’s acknowledging that failing to secure loads results in thousands of accidents and creates a high risk of death, was legally and factually sufficient to support the jury’s finding that Texas Sterling was grossly negligent.

We address Texas Sterling’s arguments regarding Mora and González separately.

D. Evidence Offered at Trial

Because a corporation can only act through individuals, courts must distinguish between acts directly attributable to the corporation and acts solely attributable to the corporation’s agents or employees. See Id.

*735 1. David Mora

Although Mora testified he thought the toolbox was nailed to the trailer, Appellees argue there is evidence in the record that Mora knew the toolbox was unsecured. To support the jury’s gross negligence finding, the evidence must demonstrate Mora knew the unsecured toolbox posed an extreme risk and that Mora consciously disregarded that risk. See Reeder v. Wood Cty. Energy, LLC, 395 S.W.3d 789, 796 (Tex. 2012).

Mora testified he was never trained to secure the toolbox and no one from Texas Sterling ever informed him that his trailer was dangerous. See Garza, 164 S.W.3d at 627.

Accordingly, we conclude the evidence does not support a finding that Mora was grossly negligent or that any gross negligence on Mora’s part is attributable to Texas Sterling. We next turn to whether the evidence supports the jury’s gross negligence finding with respect to José González.

2. José González

González was the Corporate Safety Director at Texas Sterling. As a corporate safety director, he was ultimately in charge of safety at Texas Sterling. At trial, González acknowledged that, on the issue of safety, the “buck” stopped with him. Appellees contend that because González was a vice-principal responsible for management of Texas Sterling’s Safety Department, Texas Sterling was responsible for González’s actions or inactions amounting to gross negligence. See Ellender, 968 S.W.2d at 921.

a. Arguments of the Parties

As previously stated, the Sterling Appellants concede the unsecured toolbox involved an extreme degree of risk or harm *736 to others. However, the Sterling Appellants contend the record does not contain any evidence González committed any act or omission before the accident. To the contrary, the only evidence of what González did, or did not do or know, was after the accident.

Appellees argue González’s act or omission was his awareness of (1) the extreme risk posed by unsecured loads on the highways and roadways and (2) his failure, as Director of Safety at Texas Sterling and the person ultimately responsible for all safety issues at Texas Sterling, to implement policies and training regarding proper load securement for Texas Sterling’s non-commercial drivers.

We therefore turn to González’s “actual, subjective awareness of the risk involved.” See Boerjan, 436 S.W.3d at 311.

b. Actual Subjective Awareness of the Risk Involved

An appellate court’s examination of the subjective component focuses on the individual’s state of mind—whether the individual “knew about the peril caused by his conduct but acted in a way that demonstrates he did not care about the consequences to others.” Id. at 796.

González testified the securement of a load is a safety issue. He acknowledged the securement of a cargo load is critical and a “big deal” since unsecured loads pose a high risk of death and result in thousands of accidents each year. González agreed that a reasonably prudent company must have a load securement policy to ensure that loads like a 300 to 400-pound toolbox on the back of a trailer are properly secured to a flatbed trailer; Texas Sterling did not have a policy that would have required the toolbox to be secured to the trailer. González further testified this accident was easily preventable (1) if Texas Sterling had implemented a load securement policy and procedures and (2) Mora had followed the procedures. Cf. Diamond Shamrock Refining Co., L.P., 168 S.W.3d at 171 (“Even though an FPU operator thought the check valve was leaking [and took no action to repair the leak], nothing in the evidence suggests that Diamond Shamrock actually knew [the leak] presented any danger of explosion [the resulting injury].”).

The importance of properly securing a load was well-known in the industry prior to the accident. When asked by trial counsel, González acknowledged both he and Texas Sterling understood prior to the accident the reason load securement is so critical on roads and highways is “because unsecured loads pose an unreasonable risk of harm, injury or death to the motoring public.” He further agreed that failing to secure loads causes a significant number of deaths on the highways.

Based on this evidence, we conclude a reasonable jury could believe the evidence was clear and convincing that González was actually and subjectively aware of the specific danger that an unsecured load posed to those traveling on the roads or highways. See Sw. Bell Tel. Co., 164 S.W.3d at 627. We thus turn to whether González proceeded in conscious indifference towards the rights, safety, or welfare of others.

c. Conscious Indifference towards the Rights, Safety, or Welfare of Others

At trial, González testified that, as Director of Safety, he was responsible for *737 managing Texas Sterling’s Safety Department. See Telesis/Parkwood, 462 S.W.3d at 250 (concluding director of facility and person responsible for testing and rendering emergency call system was vice-principal).

González testified Texas Sterling was responsible for the harm to Martin Sr. three ways: (1) failing to have a written protocol defining how to properly secure a load; (2) failing to have a formal training program relating to load securement; and (3) failing to institute protocols and procedures to ensure the training and proper load securement was taking place.

i. Load Securement Requires Scientifically Developed Protocols

González originally testified load securement was a common-sense type risk assessment, and regardless of whether a policy was in place, their employees had enough training to assess the daily risks and know right from wrong. See Wilhelm v. Flores, 195 S.W.3d 96, 98 (Tex. 2006) (per curiam) (holding that there is no duty to warn about dangers of bee stings). However, upon further questioning, González changed his testimony and conceded cargo securement requires protocols setting out manners and procedures based on scientific calculations.4

ii. Load Securement Requires Actual Training

Pictures were admitted evidencing a large product warning sticker on Mora’s trailer instructing the user to “secure your load.” González acknowledged that without the proper training and written protocol, no method or manner existed or was available showing Mora how to properly secure the load, i.e., what type and the number of straps necessary, based on the load’s weight and length. See USA Truck, Inc. v. West, 189 S.W.3d 904, 909–10 (Tex. App.—Texarkana 2006, pet. denied) (explaining that knowing behavior posed an extreme degree of risk, but nevertheless proceeding with the actions amounted to conscious indifference to the safety and welfare of others).

*738 iii. Ensuring Compliance with Implemented Safety Measures

González failed to take steps to ensure employees followed the safety procedures implemented in the safety departments. See Rayner v. Dillon, 501 S.W.3d 143, 150–51 (Tex. App.—Texarkana 2016, no pet.). Safety measures included a Daily Focus Team Book wherein the foreman was required to fill out a daily description of the work to be performed, the basic steps, the potential hazards, and how to control the hazards. Before a trailer left the yard, part of the focus book, or task safety assessment, included a specific protocol setting out how the foreman planned to reduce any potential hazards of serious injury or death transporting the day’s materials. Texas Sterling safety procedures required the books be turned in daily and signed off by field management in the safety department. Mora’s focus books, both before and after the accident, were not signed off by field management, indicating they were not reviewed by the safety department.

iv. Analysis

Our analysis is two-fold: (1) whether González’s acts or omissions are attributable to Texas Sterling and (2) whether González’s acts or omissions constituted gross negligence.

Gross Negligence Attributable to Texas Sterling

According to González, on questions of safety at Texas Sterling, the “buck” stopped with him. Based on his testimony, and the testimony of the other Texas Sterling and SCC employees, we conclude that, as Director of Safety, González was the individual at Texas Sterling ultimately responsible for implementing the cargo securement protocols, training, and compliance procedures for Texas Sterling employees. We further conclude the record supports that González was “responsible for management of [Texas Sterling] or its departments and divisions;” and based on his responsibilities and duties, González was a vice principal of Texas Sterling. See Ellender, 968 S.W.2d at 921–22. As a vice principal of Texas Sterling, González necessarily approved his own acts or omissions.

“[W]hen actions are taken by a vice-principal of a corporation, those acts may be deemed to be the acts of the corporation itself,” and “status as a vice-principal of the corporation is sufficient to impute liability to [the corporation] with regard to his actions taken in the workplace.”

Ellender, 968 S.W.2d at 921–22.

González’s Acts or Omissions Constituted Gross Negligence

The Sterling Appellants argue there is no evidence that González committed any act or omission. They further contend Appellees not only failed to prove González acted with gross negligence, individually, but Appellees also failed to prove Texas Sterling authorized, ratified, or approved grossly negligent acts, if any. We disagree.

González testified Texas Sterling was grossly negligent based on the following acts or omissions:

(1) although Texas Sterling was well aware of the risks and dangers associated with unsecured loads on roadways and highways Texas Sterling did not implement any policies for non-commercial drivers at Texas Sterling;

*739 (2) Texas Sterling did not ensure any cargo securement training was implemented to show Texas Sterling employees, specifically David Mora, how to comply with manufacturers’ cargo securement warnings and instructions, industry practices on securing cargo, or general good safety practices on proper cargo securement;

(3) Texas Sterling failed to ensure employees followed implemented safety measures, specifically the daily focus team books;

(4)—Texas Sterling did not ensure employees followed the manufacturers’ cargo securement warnings and instructions; and

(5) Texas Sterling did not know the necessary protocol or procedures relating to cargo securement.

The jury could conclude that the acts González attributes to Texas Sterling were “inarguably” his own acts. See Garza, 164 S.W.3d at 627.

As head of the safety department, González bore the individual responsibility to ensure the necessary protocols, training, and compliance measures were implemented at Texas Sterling; his failure to do so was grossly negligent. The jury could reasonably infer the acts of gross negligence to which González points as proof that Texas Sterling was responsible for the harm to Martin Sr., and the duties and responsibilities to which González testified, were, in fact, the acts and omissions of gross negligence to which González wasultimately responsible” as Director of Safety. The evidence is therefore legally and factually sufficient to support the jury’s finding that González had actual, subjective awareness of the risk involved in failing to implement cargo securement protocols, training, and compliance procedures at Texas Sterling. See Boerjan, 436 S.W.3d at 311.

We further conclude the record contains clear and convincing evidence upon which the jury could form a reasonable belief or conviction that given the high degree of risk of hauling an unsecured load on public roadways and highways, and González’s authority as a vice principal of Texas Sterling, González’s failure to implement the protocols, training, and compliance procedures amounted to a wanton disregard or conscience indifference to the safety of others. See Boerjan, 436 S.W.3d at 311.

Accordingly, we conclude the evidence is legally and factually sufficient to support *740 the jury’s finding that the harm to Martin Sr., resulting from González’s gross negligence, was attributable to Texas Sterling. See Garza, 164 S.W.3d at 627.

Lastly, we turn to the Sterling Appellants’ issues relating to the trial court’s evidentiary rulings.

EVIDENTIARY RULINGS

The Sterling Appellants argue the trial court erred regarding three evidentiary rulings that singularly or cumulatively resulted in harmful error: (1) admitting portions of the police report including Officer Sembera’s opinion that Mora was the cause of the accident, while simultaneously excluding portions of the report indicating Reyes was the cause; (2) excluding Officer Sembera’s testimony that Reyes was a contributing factor; and (3) excluding Officer Sembera’s testimony regarding the lack of eyewitness reports of a white van involved in the accident.

A. Standard of review

“Evidentiary rulings are committed to the trial court’s sound discretion.” Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867, 873 (Tex. 2008)).

B. Police Accident Report and Officer Sembera’s Testimony Regarding Reyes

1. Admissibility of Police Reports

Absent circumstances indicating a lack of trustworthiness, accident reports setting forth the factual findings from an investigation in a civil case are admissible under Rule 803(8) as exceptions to the hearsay rule. See 1001 McKinney Ltd., 192 S.W.3d at 28.

2. Offer before the Trial Court

Officer Sembera testified he is not an accident reconstructionist and was “not being offered as an expert or reconstructionist”; he was tendered as a fact witness. Commander Tureaud testified that although he took picture and measurements, neither he nor anyone else in the San Marcos Police Department performed any accident reconstruction.

The trial court admitted Officer Sembera’s accident report as follows: the narrative section remained in its entirety; the fact the unsecured load fell off the back of Mora’s trailer remained because the parties were stipulating to that fact, any information like insurance or similar information was redacted, and any mention of “faulty evasive action” taken by Reyes’s *741 vehicle was redacted because “[m]aybe it was faulty ... I’m sure both sides have their experts, so that’s for the experts.” Based on this ruling, the trial court also excluded Officer Sembera’s deposition testimony that Reyes made a “faulty evasive action” that contributed to the accident.

3. Analysis

The narrative section was properly admitted as a compilation of factual findings based on evidence collected by Officer Sembera and other officers at the scene of the accident. See TEX. R. EVID. 803(8)(C). Included within the narrative section, Officer Sembera described the trailer attached to Mora’s pickup truck as having “a large wooden toolbox on it that became dislodged and fell into the roadway.”

a. Contributing Factor Section

Immediately above the narrative section, Officer Sembera identified one contributing factor to the accident—Unit #1 [Mora’s vehicle] and the contributing factor was #50 [unsecured load]. It was undisputed that an unsecured wooden toolbox fell of the back of Mora’s trailer. González testified, in his opinion, the root cause of the accident was the failure to secure the toolbox and the toolbox falling off the trailer and landing on the highway. González further testified he did not believe Reyes “did anything wrong” and the only contributing factor for this particular wreck was the toolbox coming off the trailer. Kakasenko also testified, “No one questions the root cause of the accident was the improperly secured toolbox.”

The failure of Mora’s toolbox to be properly secured is a question of fact stipulated to by the defense. Regarding the officer’s conclusion on the unsecured load being a contributing factor of the accident, we conclude the Sterling Appellants failed to meet their burden to show the report’s untrustworthiness. See 1001 McKinney Ltd., 192 S.W.3d at 28.

b. Officer Sembera’s Testimony in Report Narrative or Deposition

The trial court redacted any mention of “faulty evasion action” taken by Reyes’s vehicle because “[m]aybe it was faulty ... I’m sure both sides have their experts, so that’s for the experts.” See Lopez-Juarez, 348 S.W.3d at 21.

Here, Officer Sembera testified he did not perform any scientific studies or tests in this case. Because the determination of *742 whether Reyes’s evasive action prior to the collision was “faulty” is an opinion, Officer Sembera was not qualified to testify regarding his opinion about Reyes’s evasive action as a contributing factor, in the narrative section of the police report, or during his deposition. See Pilgrim’s Pride Corp. v. Smoak, 134 S.W.3d 880, 892 (Tex. App.—Texarkana 2004, pet. denied) (finding evidence inadmissible hearsay because officer was not expert in accident reconstruction).

C. Officer Sembera’s Testimony Regarding the White Van

The Sterling Appellants next contend the trial court erred by excluding the following portion of Officer Sembera’s deposition testimony regarding the white van, which they argue is relevant to the sudden emergency defense:

Question: Okay. Were you ever told anytime by any of the people involved in this accident that the white—that the white van swerved to the left and Mr. Reyes didn’t have time to react to the box?

Sembera: No, sir.

Question: Did anybody ever mention a white van that you recall?

Sembera: Not that I recall, no, sir.

The trial court sustained the Appellees’ objection based on hearsay.

1. Hearsay

Hearsay is a statement that “(1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” TEX. R. EVID. 801(d).

The Sterling Appellants contend the testimony is the absence of a statement made during Officer Sembera’s official duties in investigating the accident and, therefore, not hearsay. Appellees counter the excluded testimony was inadmissible hearsay—specifically Mora’s and Reyes’s statements to Officer Sembera at the scene. Contra TEX. R. EVID. 801(e)(2) (excluding an opposing party’s statement).

2. Analysis

The statements about which Sterling Appellants complain, “Were you ever told anytime by any of the people involved in this accident that the white—that the white van swerved to the left and Mr. Reyes didn’t have time to react to the box?” and “Did anybody ever mention a white van,” are actually the absences of statements, which are not hearsay. See Murray v. State, 804 S.W.2d 279, 283 (Tex. App.—Fort Worth 1991, pet. ref’d).

We conclude the challenged portion of Officer Sembera’s testimony was not a statement that either Reyes or any other witness made to Officer Sembera. It was instead, evidence of the fact that neither Reyes nor any other witness actually made such a statement, neither statement was hearsay. See Kopplow Dev., Inc., 441 S.W.3d at 442.

3. Improper Judgment

*743 Reversal of erroneously admitted or excluded evidence is warranted only if the error probably resulted in the rendition of an improper judgment. Spohn Hosp. v. Mayer, 104 S.W.3d 878, 883–84 (Tex. 2003)).

The jury saw photographs of the white van at the scene and the Sterling Incident Report referenced the white van. Multiple Texas Sterling supervisors and representatives testified Mora’s failure to secure the toolbox was the sole cause of the accident. Dr. Eftekhar’s testimony focused on Reyes’s reaction to the swerving white van and whether his reactions to such contributed to creating a sudden emergency. Assuming the two statements in the eight pages of Officer Sembera’s deposition offered before the jury could be construed as contrary to that finding, considering the entire record, all of the witness testimony, the large number of exhibits, and the focus of the attorneys at trial, we cannot conclude the two statements resulted in the rendition of an improper judgment. See U-Haul Int’l, Inc., 380 S.W.3d at 136.

CONCLUSION

The Sterling Appellants raised four issues on appeal.

The Sterling Appellants argued the evidence was legally and factually insufficient to support the jury’s determination that Martin Sr. and Martin Jr. were in the course and scope of their employment at the time of the accident. Our consideration of whether Martin Sr. and Martin Jr. were in the course and scope of their employment considered a review of the entire record, including but not limited to the facts that Martin Sr. and Martin Jr. were both hourly employees and their weekly employment began at the jobsite at 7:00 a.m. and finished when released on Friday or Saturday, their travel was neither paid for nor reimbursed, they were furnished a hotel and provided a per diem, they were not reimbursed mileage, insurance or other vehicle expense, and their route was not employer dictated. Additionally, the Texas Sterling team of supervisors and individuals responsible for making such determinations, determined Martin Sr. and Martin Jr. were not in the course and scope of their employment. Accordingly, we conclude the evidence is both legally and factually sufficient to support the jury’s findings.

Although the Sterling Appellants did not contest the negligence of Mora, Texas Sterling, and SCC, the Sterling Appellants contend the evidence is legally and factually insufficient to support the jury’s findings that Reyes was neither negligent nor partially responsible for the accident based on the defense of sudden emergency. The jury heard from several witnesses that Mora’s failure to secure the cargo was the root cause of the accident. The record also included graphic pictures of the scene upon which the jury could rely. Additionally, the jury could have reasonably relied upon the testimony of Dr. Eftekhar to infer the toolbox on the highway was sudden and unexpected and did not provide sufficient time for a reasonable person to deliberate. As such, we conclude the evidence is legally and factually sufficient to support the jury’s findings that Reyes was neither negligent nor partially responsible for the accident based on the defense of sudden emergency.

*744 The Sterling Appellants further contend the evidence is legally and factually insufficient to support the jury’s finding that the harm to Martin Sr. resulted from the gross negligence attributable to Texas Sterling based on the acts or omissions of David Mora and José González. The Sterling Appellants conceded the unsecured toolbox created an extreme degree of risk, the objective element of gross negligence. Based on a review of the record, we concluded there was insufficient evidence to support that Mora understood the risk posed by the unsecured toolbox or that he proceeded in conscious disregard of that risk.

González, however, testified Texas Sterling was responsible for failing to have a written protocol defining how to properly secure a load, failing to properly train employees regarding load securement and the proper protocols, and failing to institute protocols and procedures to ensure the training and proper load securement were taking place. González also testified that as Texas Sterling’s Corporate Safety Director, the buck stopped with him and he was ultimately in charge of all safety issues. By his own testimony, as head of the safety department, González was the individual responsible for Texas Sterling’s safety program. He was a vice principal of Texas Sterling by definition.

González further testified that he understood the importance of cargo securement and the dangers associated with failure to properly secure cargo. He was ultimately the person responsible to ensure the protocols were written. He was also the person responsible to ensure the employees were properly trained in cargo securement—a safety issue. He was further the individual responsible to ensure the same employees were following the written protocols and abiding by the training they received. As he testified, the “buck” stopped with him. The evidence is clear and convincing to support the jury’s firm belief that the duties about which González testified were, in fact, the acts and omissions of gross negligence to which González was ultimately responsible as Corporate Safety Director. We therefore conclude the record contains clear and convincing evidence to support the jury’s firm conviction that the harm to Martin Sr. resulted from the gross negligence attributable to Texas Sterling based on González’s failure to implement the necessary protocols and training to ensure proper cargo securement.

Lastly, the Sterling Appellants contend the trial court erred in redacting any mention of Reyes as a contributing cause of the accident before admitting the police officer’s accident report and excluding Officer Sembera’s testimony based on hearsay. Because accident reports based on an officer’s factual findings are admissible under Rule 803(8)(B) of the Texas Rules of Evidence, and Officer Sembera was not qualified as an expert to render his opinion before the jury, we conclude the trial court did not abuse its discretion in admitting the accident report. However, because the testimony regarding the white van was not hearsay, the trial court erred in excluding Officer Sembera’s testimony. Nevertheless, we cannot conclude the two statements resulted in the rendition of an improper judgment.

Accordingly, we affirm the judgment in its entirety.

DISSENTING OPINION

Sandee Bryan Marion, Chief Justice

I concur in the judgment except as to gross negligence. While I agree with the majority that the evidence does not support the jury’s gross negligence finding with respect to David Mora, I disagree that the evidence supports the jury’s finding *745 with respect to José González. For this reason, I respectfully dissent in part.

Standard of Review

David Mora, Texas Sterling Construction Co., and Sterling Construction Company, Inc. (collectively, “the Sterling Appellants”) challenge the legal and factual sufficiency of the evidence supporting the jury’s verdict. Because gross negligence must be established by clear and convincing evidence, we apply a heightened standard of sufficiency review. Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004).

Discussion

A. Gross negligence

Gross negligence requires a showing of two elements:

(1) viewed objectively from the actor’s standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(2) the actor must have actual, subjective awareness of the risk involved, but nevertheless proceed[s] in conscious indifference to the rights, safety, or welfare of others.

Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, 271 S.W.3d 238, 248 (Tex. 2008).

Because a corporation can only act through individuals, courts must distinguish between acts directly attributable to the corporation and acts solely attributable to the corporation’s agents or employees. See Id.

B. The jury charge

In this case, the jury was asked: “Do you find by clear and convincing evidence that the harm ... resulted from gross negligence attributable to Texas Sterling Construction Co.?” The charge gave the definition of gross negligence and instructed that Texas Sterling Construction Co. (“Sterling”) “may be grossly negligent because of an act by David Mora or [José González] if, but only if—1. [Sterling] authorized the doing and the manner of the act, or 2. [Sterling] or a vice principal or manager of ... Sterling ratified or approved the act.” The jury was further instructed on the definitions of “vice principal” and “manager.” In response to the instruction to answer “Yes” or “No” for *746 David Mora and José González, the jury answered “Yes” for both.

Counsel for the Sterling Appellants objected to the gross negligence instruction “on the grounds of no evidence” but expressly stated he had no objection to the form of the instruction. Appellees (“the Valdivias”) also made no objection. Where neither party objects to the questions submitted to the jury, we measure the sufficiency of the evidence by the jury charge as it was actually submitted. specifically based on an act or omission of David Mora or José González that was authorized by Sterling or ratified and approved by its vice principal or manager.

C. Analysis

On appeal, the Sterling Appellants argue there is no evidence González, as Sterling’s Corporate Safety Director, personally committed any act or omission giving rise to the accident, nor is there any evidence González had knowledge of the risk posed by Mora’s unsecured toolbox prior to the accident. The Valdivias argue González nevertheless committed an act or omission because: (1) González was aware of the risk posed by unsecured loads generally; and (2) González was aware there was no Sterling policy regarding load securement and failed to implement one.

As previously noted, I agree with the majority that there is insufficient evidence Mora had actual, subjective awareness of the risk. However, I also believe there is insufficient evidence González had actual, subjective awareness of the risk but proceeded with conscious indifference to the rights, safety, or welfare of others. Put another way, because there is no evidence González knew any employee, including Mora, was towing unsecured loads, I believe there is insufficient evidence to conclude González “knew about the peril, but [his] acts or omissions demonstrated that [he] did not care.” See Lee Lewis Constr., 70 S.W.3d at 785.

“Corporate safety policies, or the lack of them, can serve as the basis for a gross negligence finding.” lez personally and whether that act is attributable to Sterling.

Where, as here, a plaintiff elects to charge a company with gross negligence based on the conduct of an individual, courts will find liability if the individual actor had actual, subjective knowledge of an extreme risk (as opposed to the mere *747 potential for risk) and consciously disregarded it. For example, a construction company was liable for the gross negligence of a company superintendent who personally saw employees on the ninth floor of a building under construction working with an “ineffective fall-protection system” but “did nothing to remedy it.” Columbia Med. Ctr. of Las Colinas v. Bush ex rel. Bush, 122 S.W.3d 835, 855–56 (Tex. App.—Fort Worth 2003, pet. denied).

In contrast, courts will not find a company liable for gross negligence where no vice principal personally observed or was personally aware of the risk and consciously disregarded it. For example, an apartment building was not liable for gross negligence where, although contract employees had made threats against the plaintiff tenant prior to assaulting him, the vice principals identified in the jury charge did not hear those threats and were not aware of them. Godines v. Precision Drilling Co., L.P., No. 11-16-00110-CV, 2018 WL 2460302, at *7 (Tex. App.—Eastland May 31, 2018, no pet.) (mem. op.) (affirming no evidence summary judgment on gross negligence claim because “there was no evidence that a [company] supervisor was conscious that one of its employees was about to scope out the derrick from the two trucks but, nonetheless, allowed the employee to continue doing so without conducting a [job safety analysis] meeting beforehand”).

Here, regardless of whether González is a vice principal or merely an agent of Sterling, there is no dispute he was not aware until after the accident that Mora was towing an unsecured load. González lives and works in Houston and only went to the scene of the accident the day after it happened to investigate for Sterling. Although González testified both he and Sterling were aware prior to the accident that failing to secure a load before towing poses “an unreasonable risk of harm, injury, or death to the motoring public” that is “significant,” there is no evidence in the record that González was aware Mora or other Sterling employees were towing unsecured loads prior to the accident. González also testified: “You know, load securement is understood ... it’s pretty much common sense. So having a policy, you know, I don’t—I don’t know that I totally agree with it, that we made a conscious decision not to train.”

The supreme court has held the lack of a corporate safety policy, on its own, will not support an inference that a corporate defendant was subjectively aware of or consciously indifferent to a risk of injury where there is no evidence a vice principal observed or was otherwise aware that the risk had materialized but disregarded it. For instance, in Id. at 248.

Similarly, here, there is no evidence González knew or had been informed that any Sterling employee was actually towing unsecured loads or that González disregarded that knowledge. There also is no evidence González knew Sterling employees were likely to be towing unsecured loads, since he believed load securement is “common sense.” Again, because the jury was charged to determine whether Sterling was liable for the gross negligence of González specifically, we are bound to review the evidence in light of what González actually, subjectively knew. Even if we were not so constrained, however, I would note there is no evidence any other Sterling vice principal knew Mora was towing an unsecured load. To the contrary, Sterling Division Safety Manager Robert Mitchell testified that for the ten months prior to the accident, he assumed the toolbox on Mora’s trailer was secured and would have instructed Mora to secure it had he known Mora had not done so.

D. Conclusion

Based on a review of the entire record, therefore, I would hold there is insufficient evidence to support a finding that González had “actual, subjective awareness of the risk involved, but nevertheless proceeded in conscious indifference to the rights, safety, or welfare of others.” See Boerjan, 436 S.W.3d at 311. While it is clear González knew towing unsecured loads is extremely dangerous and that Sterling did not have a written policy requiring employees to secure loads before towing, I would hold the subjective awareness element of the gross negligence test is not satisfied unless there is some evidence supporting a firm belief or conviction that González knew Sterling employees, and Mora in particular, were actually towing unsecured loads and consciously disregarded that knowledge. To conclude otherwise would permit a finding of gross negligence in every case in which an employer does not have a safety policy applicable to a particular risk, even if the employer is not subjectively aware that the risk has materialized or is likely to materialize. Therefore, as charged, I would hold the evidence is insufficient to support the jury’s finding of gross negligence based on any act or omission by González.

Footnotes

1 Prior to selection of the jury, the Sterling Appellants’ counsel stipulated as follows:

“[W]ith regard to the defendant [Texas Sterling] and SCC, ... there will not be a contention that they were not negligent in the way that they set up policies for cargo securement, for the failure to train that is also alleged in the case, or that those actions by those parties were the actions of vice principals of the company or authorized or ratified by the company.”

2 Because the Valdivias’ travel did not originate in their employment, we need not address the exclusions set forth in Leordeanu, 330 S.W.3d at 248)).
3 The trial court gave the jury the following gross negligence question and instructions:

Do you find by clear and convincing evidence that the harm to [Martin Sr.] resulted from gross negligence attributable to [Texas Sterling]?

“Clear and convincing evidence” means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegation sought to be established.

“Gross Negligence” means an act or omission by David Mora or José González,

1. which when viewed objectively from the standpoint of David Mora or José González at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

2. of which David Mora or José González has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

You are further instructed that [Texas Sterling] may be grossly negligent because of an act by David Mora or José González if, but only if—

1. [Texas Sterling] authorized the doing and the manner of the act, or

2. [Texas Sterling] or a vice principal or manager of Texas Sterling ratified or approved the act.

A person is a vice principal if—

1. that person is a corporate officer; or

2. that person has authority to employ, direct, and discharge an employee of [Texas Sterling]; or

3. the person is engaged in the performance of nondelegable or absolute duties of [Texas Sterling]; or

4. [Texas Sterling] has confided to that person the management of the whole or a department or division of the business of [Texas Sterling].

A person is a manager or is employed in a managerial capacity if—

1. that person has authority to employ, direct, and discharge an employee of [Texas Sterling]; or

2. [Texas Sterling] has confided to that person the management of the whole or a department or division of the business of [Texas Sterling].

A nondelegable and absolute duty of a corporation is the duty to provide rules and regulations for the safety of employees and to warn them as to the hazards of their position or employment.

Answer “Yes” or “No” for each of those below.

David Mora: ______

José González: ______

The jury answered “Yes” as to both David Mora and José González.

4 The record is silent regarding any action taken by González, the Director of Safety, to implement additional procedures or policies to ensure no additional lives were placed at risk by Texas Sterling employees’ improper cargo securement. In Diamond Shamrock may have been negligent, the company did not act with conscious indifference.

After the explosion, Diamond Shamrock modified the bleeder valves so that they could be used to check for liquids in the line, adding an extension to allow operation from a platform outside the building and a collection line to gather any contents. Its failure to make these modifications before the explosion may have been negligent, but again, this is not enough to prove gross negligence.

Id. At the time of trial, two years after the accident, the only policy implemented by Texas Sterling was “Secure your load.” The policy was no different than the warning already on Mora’s trailer at the time of the accident.

1 Another apartment employee identified in the charge did hear the threats, but any gross negligence on her part in failing to act could not be attributed to the company because she was neither a vice principal nor an agent whose conduct the company authorized or ratified. Id.

Court of Appeals of Texas, San Antonio.

Michelle NIÑO, Individually and as Personal Representative of the Estate of Robert Niño, Deceased; Julyssa Sixx Niño; Robert Niño Jr.; and Alyssa Nikki Niño; Appellants

v.

PRIMORIS ENERGY SERVICES CORP., Appellee

No. 04-18-00758-CV

|

Delivered and Filed: July 10, 2019

From the 365th Judicial District Court, Dimmit County, Texas, Trial Court No. 15-12-12787-DCVAJA, Honorable Amado J. Abascal III, Judge Presiding

Attorneys & Firms

Ted Rodriguez, Jr., 201 N. 5th Street, Carrizo Springs, TX 78834, for Appellants.

Patrick Stoia, 580 Westlake Park Blvd., Suite 1120 Houston, TX 77079, for Appellee.

Sitting: Patricia O. Alvarez, Justice

Luz Elena D. Chapa, Justice

Irene Rios, Justice

MEMORANDUM OPINION

Opinion by: Patricia O. Alvarez, Justice

*1 Michelle Niño, individually and as personal representative of the Estate of Robert Niño; Julyssa Sixx Niño; Robert Niño Jr.; and Alyssa Nikki Niño (collectively the Niños) appeal a no-evidence summary judgment granted in favor of Primoris Energy Services Corp. The Niños assert they presented more than a scintilla of evidence that Primoris’s gross negligence caused Robert Niño’s death. We affirm the trial court’s judgment.

BACKGROUND

Robert Niño, an employee of Primoris, was working with three other employees to change filters inside a vessel at a natural gas facility. The other employees were Brandon Reyna, the designated safety representative; Francisco Ramos, the foreman; and Roy Quilimaco, whose job was to continuously watch the employee working inside the vessel and monitor the situation for potential hazards. Both Robert and Ramos worked at various times inside the vessel which required them to wear protective clothing and air respirator equipment. The protective gear was described as heavy and “hot.”

The crew began working around 10:00 a.m. and finished replacing the filters around 5:30 p.m.—with several breaks for water and lunch. After the filters were replaced but before the job site was cleaned, Reyna observed Robert sitting in the work crew truck. When Reyna approached Robert, Robert told him his vision had blurred and he had tripped and fallen to the ground while he was on his way to the restroom. Robert added that he got up after a short time, used the restroom, and returned to the crew’s work truck to rest.

Based on this information and Reyna’s observation that Robert was sweating heavily,1 Reyna stayed with Robert and decided to take measures relating to possible heat stress, including initiating an incident investigation and reporting process. Reyna transferred Robert to his vehicle, turned on the air conditioning, brought Robert more water, and informed Ramos.2 The decision was made that Robert would not return to work. Reyna reported the incident to three managers, including the regional safety manager, and Robert was repeatedly asked if he wanted to be taken to the hospital or a doctor for medical treatment.3 Robert repeatedly declined.4 After the job site was cleaned and the vessel secured, the crew left the job site with Robert riding with Reyna, and Quilimaco riding with Ramos.

*2 Reyna and Robert carried on a conversation before stopping at a convenience store approximately forty-five minutes after leaving the job site. Robert used the restroom, and Reyna purchased a Gatorade and a banana for him because Robert previously told Reyna he did not have any money. Quilimaco spoke with Robert at the convenience store. Quilimaco described Robert as tired but fine and speaking coherently.

After leaving the convenience store, Reyna and Robert continued to talk for the remaining two-hour drive. When Reyna again offered Robert medical assistance upon arriving at his house, Reyna described Robert as being annoyed with the conversation. As he exited the vehicle, Robert told Reyna he was feeling fine, and Reyna believed Robert looked okay. Reyna did not believe Robert had continued sweating while at the convenience store or when they arrived at his house. While showering a short time later, however, Robert collapsed and died from a heart attack.

The Niños sued Primoris asserting a claim for gross negligence. The trial court granted Primoris’s no-evidence motion for summary judgment, and the Niños appeal.

STANDARD OF REVIEW

We review a no-evidence summary judgment under the same legal sufficiency standard as a directed verdict. Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)).

GROSS NEGLIGENCE

Generally, recovery of workers’ compensation benefits is the exclusive remedy of a legal beneficiary against an employer for the death of an employee. See TEX. LAB. CODE ANN. § 408.001(b)). In this context, the term “gross negligence” means an act or omission

(A) which when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and

(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others.

Civil Practice and Remedies Code section 41.001).

*3 As the definition states, gross negligence has both an objective and a subjective component. Under the objective element, an extreme risk is “not a remote possibility of injury or even a high probability of minor harm, but rather the likelihood of serious injury to the plaintiff.” Louisiana-Pac. Corp. v. Andrade, 19 S.W.3d 245, 247–48 (Tex. 1999)).

DISCUSSION

On appeal, the Niños contend Primoris was grossly negligent in failing to take Robert to the hospital for medical treatment. Specifically, the Niños assert, “Primoris employees and management at all levels were aware that Robert was having serious health issues and that he needed immediate medical treatment” and “showed conscious indifference to Robert because instead of taking him to the hospital for immediate treatment, it drove him three hours to his house.”

The summary judgment evidence established Reyna believed Robert was suffering from heat stress. Reyna immediately responded to those symptoms by placing Robert in his air-conditioned truck and giving him water. Robert was repeatedly asked if he would like to be taken for medical treatment, and he repeatedly declined. Robert carried on a conversation with Reyna throughout the drive from the job site to Robert’s house, and Robert continued to decline offers of medical assistance. Reyna purchased Robert a Gatorade and a banana at the convenience store, and Quilimaco described Robert as tired but fine. When they arrived at Robert’s house, Robert again declined medical assistance and told Reyna he was fine.

As previously noted, to establish the subjective component of gross negligence, “the plaintiff must show that the defendant knew about the peril, but his acts or omissions demonstrate that he did not care.” Diamond Shamrock Ref. Co., 168 S.W.3d at 172 (“Although the employees were mistaken, there was no evidence of conscious indifference to the risk of harm.”).

CONCLUSION

Because there was no evidence of Primoris Energy’s gross negligence, the trial court did not err in granting Primoris’s no-evidence motion for summary judgment. The trial court’s judgment is affirmed.

Footnotes

1

Reyna stated he believed the fact that Robert was sweating heavily was a good sign “[b]ecause in the event that a person is into a level of heat injury that is considered heat exhaustion, their body would stop sweating.”

2

The crew’s work truck could not be safely turned on due to its proximity to the vessel.

3

When Reyna was asked why he continued asking Robert about being taken to the doctor after leaving the job site, Reyna responded, “Because just on the off chance that he might have been trying to be, quote, unquote, a tough guy and ignoring something.”

4

Robert told Primoris’s regional safety manager that he was fine and probably did not eat enough that day. Robert also told his daughters he did not need medical assistance when they asked him after he arrived home.

Court of Appeals of Texas, San Antonio.

KONARK LIMITED PARTNERSHIP, Appellant and Cross-Appellee

v.

BTX SCHOOLS, INC. and Basis Schools, Inc., Appellees and Cross-Appellants

No. 04-17-00558-CV

|

Delivered and Filed: November 7, 2018

*195 From the 37th Judicial District Court, Bexar County, Texas, Trial Court No. 2017-CI-01954, Honorable Laura Salinas, Judge Presiding

Attorneys & Firms

APPELLEE ATTORNEY: Bryan Dahlberg, Hoffer & Adelstein, L.L.P., 517 Soledad St., San Antonio, TX 78205-1508, R. David Fritsche, Law Offices of R. David Fritsche, 921 Proton Road, San Antonio, TX 78258-4203.

APPELLANT ATTORNEY: James D. Bertsch, Touchstone, Bernays, Johnston, Beall, Smith & Stollenwerck, LLP, 404 Renaissance Tower, 1201 Elm Street, Dallas, TX 75270.

Sitting: Patricia O. Alvarez, Justice

OPINION

Opinion by: Sandee Bryan Marion, Chief Justice

Appellant Konark Limited Partnership (“Konark”) appeals from the trial court’s order granting a joint plea to the jurisdiction based on governmental immunity filed by Appellees Basis Schools, Inc. (“Basis Schools”) and BTX Schools, Inc. (“BTX”). On appeal, Konark concedes the plea to the jurisdiction was correctly granted as to BTX but argues the trial court erred in granting the plea as to Basis Schools. In light of the supreme court’s opinion in Neighborhood Centers Inc. v. Walker, 544 S.W.3d 744 (Tex. 2018), we conclude Basis Schools is not entitled to governmental immunity in this case. Accordingly, we reverse the trial court’s order as it pertains to Basis Schools and remand the cause to the trial court for further proceedings on the merits.

Background

Konark owns the Hyperion Apartments in San Antonio. Basis Schools owns a property next door to the Hyperion Apartments, which it leases to BTX to operate an open-enrollment charter school. BTX is a Texas nonprofit corporation and a “charter holder” under the Charter Schools Act. See TEX. EDUC. CODE ANN. § 12.1012(1). Basis Schools is an Arizona nonprofit corporation and the sole member of BTX.

Konark sued BTX and Basis Schools, alleging improvements made to Basis Schools’ property resulted in “significant diversion of water” that damaged Konark’s property. Konark claimed BTX and Basis Schools were strictly liable for its damages *196 pursuant to the Water Code, which provides: “No person may divert or impound the natural flow of surface water in this state, or permit a diversion or impounding by him to continue, in a manner that damages the property of another by the overflow of the water diverted or impounded.” TEX. WATER CODE ANN. § 11.086(a).

BTX and Basis Schools filed a joint plea to the jurisdiction, arguing they have governmental immunity from suit and liability under section 12.1056(a) of the Charter Schools Act, which states: “[A]n open-enrollment charter school or charter holder is immune from liability and suit to the same extent as a school district, and ... [a] member of the governing body of an open-enrollment charter school or of a charter holder is immune from liability and suit to the same extent as a school district trustee.” TEX. EDUC. CODE ANN. § 12.1056(a). BTX argued it is immune because it is a charter holder, and Basis Schools argued it is immune because it is a member of the governing body of a charter holder. Basis Schools argued it is also immune under Arizona common law. The trial court granted the plea to the jurisdiction, and Konark appeals. BTX and Basis Schools cross-appeal, arguing the trial court should have dismissed Konark’s claims with prejudice, rather than without prejudice.

In its lead brief on appeal, Konark conceded BTX is immune from suit and liability. After Konark filed its lead brief but before BTX and Basis Schools filed their lead brief, the supreme court issued its opinion in Walker during oral argument.

Standard of Review

Konark appeals from the trial court’s order granting a plea to the jurisdiction based on governmental immunity. A plea to the jurisdiction based on governmental immunity challenges the trial court’s subject matter jurisdiction. Id.

Discussion

Basis Schools argues it has governmental immunity from suit and liability under section 12.1056(a) of the Charter Schools Act because it is a member of the governing body of a charter holder. In its recent opinion in Walker in context, we discuss the evolution of governmental immunity for charter schools.

A. The Charter Schools Act and open-enrollment charter schools

The Legislature enacted the Charter Schools Act as part of its 1995 overhaul of the Texas Education Code. TEX. EDUC. CODE ANN. § 12.002.

Open-enrollment charter schools, like the one BTX operates, are generally open to the public, tuition-free, and operated by private, tax-exempt nonprofit corporations under charter with the Commissioner *197 of Education. TEX. EDUC. CODE ANN. § 12.105.

Charter Schools Act sections 12.1051 through 12.1055 set forth circumstances in which an open-enrollment charter school is treated like a governmental entity for certain purposes. See id. §§ 12.1051–12.1055. Open-enrollment charter schools are: (1) “governmental bodies” for purposes of Open Meetings and Public Information Laws; (2) “local government[s]” under laws related to local government records; and (3) “governmental entit[ies],” “political subdivision[s],” and “local government[s]” for purposes of public purchasing and contracting laws. Id.

B. LTTS Charter School, Inc. v. C2 Construction, Inc. (“LTTS II”)

Because open-enrollment charter schools are treated like governmental entities in some circumstances, courts have faced the question of whether open-enrollment charter schools are immune from suit and liability in the same way that a governmental entity would be. For instance, in a 2011 decision subsequently known as “Id. at 78. The court concluded:

In sum, numerous provisions of Texas law confer “status” upon and grant “authority” to open-enrollment charter schools. Their status as “part of the public school system of this state”—and their authority to wield “the powers granted to [traditional public] schools” and to receive and spend state tax dollars (and in many ways to function as a governmental entity)—derive wholly from the comprehensive statutory regime [contained in the Education Code]. With this legislative backdrop in mind, we are confident that the Legislature considers [an open-enrollment charter school] to be an “institution, agency, or organ of government” under the Tort Claims Act and thus entitled to take an interlocutory appeal here.

12.1053).

A dissenting opinion, however, raised concerns that the majority “effectively answered an important substantive question that is not before us: what type of immunity does a privately run, open-enrollment charter school possess?” Id.

On remand, the dissent’s concern was realized when the court of appeals held that “based on the supreme court’s analysis *198 in [Walker, 544 S.W.3d at 754.

C. The 2015 amendments to the Charter Schools Act

In the wake of LTTS II and its progeny, the Legislature amended the Charter Schools Act in 2015 and, in doing so, squarely addressed the dissent’s concerns regarding whether and to what extent open-enrollment charter schools are immune from suit and liability.

Charter Schools Act section 12.1056(a) to provide that open-enrollment charter schools are immune from both liability and suit to the same extent as a school district:

In matters related to operation of an open-enrollment charter school, an open-enrollment charter school or charter holder is immune from liability and suit to the same extent as a school district, and the employees and volunteers of the open-enrollment charter school or charter holder are immune from liability and suit to the same extent as school district employees and volunteers. A member of the governing body of an open-enrollment charter school or of a charter holder is immune from liability and suit to the same extent as a school district trustee.

TEX. EDUC. CODE ANN. § 12.1056(a).

The 2015 Legislature also added Walker, 544 S.W.3d at 752. The amendments make an open-enrollment charter school:

• a “governmental unit” under the Tort Claims Act and subject to the same liability under the Act as a school district;

• a “local government” under statutes regarding payment of tort claims, interlocal cooperation contracts, and self-insurance (except for issuing public securities);

• a “local governmental entity” under the Local Government Contract Claims Act and subject to the same liability as a school district; and

• a “political subdivision” for purposes of the Texas Political Subdivision Employees Uniform Group Benefits Act, and at the school’s election, for purposes of extending workers’ compensation benefits.

(b) ).

Importantly, the Legislature also added TEX. EDUC. CODE ANN. § 12.1058(c) (emphasis added).

D. Neighborhood Centers Inc. v. Walker

In 554.0035. The defendant charter school filed a plea to the jurisdiction, arguing it is not a governmental entity subject to liability under the Whistleblower Act. The trial court denied the plea to the jurisdiction, and the school appealed.

Like BTX and Basis Schools, the plaintiff in unless the statute or the Charter Schools Act specifically says it is.

Reversing the trial court and the court of appeals, the supreme court held the Whistleblower Act does not create a cause of action against an open-enrollment charter school because: (1) the Whistleblower Act applies to local government entities, defined to include school districts, but does not expressly state that it applies to open-enrollment charter schools; and (2) the Charter Schools Act does not identify the Whistleblower Act as a statute under which an open-enrollment charter school is considered a local governmental entity. Id. at 754.1

*200 E. Whether a member of an open-enrollment charter school’s governing body is immune from suit and liability under Water Code section 11.086(a)

In this case, BTX and Basis Schools argued BTX is a charter holder and Basis Schools is a member of a charter holder’s governing body. Konark concedes BTX is a charter holder but argues Basis Schools cannot be a member of BTX’s governing body because it is not a natural person. While Konark raises an interesting issue, we need not reach it today. Assuming without deciding that Basis Schools is a member of BTX’s governing body, the question presently before us in the wake of section 11.086(a) of the Water Code.

1. The parties’ arguments

Because the supreme court issued its opinion in section 12.1056(a) stands on its own as the source of immunity from suit and liability of an open-enrollment charter school and members of its governing body.

In a post-submission letter brief, the Texas League of Community Charter Schools (the “TLCCS”), as amicus curiae, expanded upon Basis Schools’ argument. The TLCCS argued TEX. EDUC. CODE § 12.1056(a).”

We agree that the Water Code is unlike the Whistleblower Act in that the Water Code does not create a cause of action exclusively against governmental entities. However, for the reasons stated below, we do not believe we can disregard Walker’s analysis in this case.

2. Analysis

Konark brought suit against BTX and Basis Schools under TEX. WATER CODE ANN. § 11.086(a). The Water Code adopts the Code Construction Act (Chapter 311 of the Government Code) definition of “person”:

“Person” includes corporation, organization, government or governmental subdivision *201 or agency, business trust, estate, trust, partnership, association, and any other legal entity.

TEX. WATER CODE ANN. § 1.002 (“The Code Construction Act (Chapter 311, Government Code) applies to the construction of each provision in this code....”).

Therefore, unlike the Whistleblower Act, section 11.086(a). If it is, then Konark has a cause of action from which Basis Schools is not immune.

The supreme court’s analysis in Walker, 544 S.W.3d at 753.3

Although Basis Schools is not a “government or governmental subdivision or agency” for purposes of section 11.086(a) claim.4 For these reasons, we conclude the trial court erred in granting Basis Schools’ plea to the jurisdiction on the basis of governmental immunity under the Charter Schools Act.

F. Whether Basis Schools is immune under Arizona common law

In the alternative, Basis Schools argues that if it is not immune under the Charter Schools Act, it is immune under Arizona common law. Basis Schools relies on the Arizona education statute, which provides:

O. A sponsor, including members, officers and employees of the sponsor, is immune from personal liability for all acts done and actions taken in good faith within the scope of its authority.

GG. A charter school and its employees, including the governing body, or chief administrative officer, are immune from civil liability with respect to all decisions made and actions taken to allow the use of school property, unless the charter school or its employees are guilty of gross negligence or intentional misconduct. This subsection does not limit any other immunity provisions that are prescribed by law.

ARIZ. REV. STAT. § 15-183(O), (GG).5 The Arizona statute defines “charter school” as:

a public school established by contract with the state board of education, the state board for charter schools, a university under the jurisdiction of the Arizona board of regents, a community college district or a group of community college districts pursuant to article 8 of this chapter to provide learning that will improve pupil achievement.

Id. § 15-101(4) (internal footnote and citation omitted). Basis Schools does not specify whether it contends it is a charter school’s sponsor, member, or governing body under this statute.

Basis Schools argues the trial court should extend it governmental immunity under the principle of interstate comity, citing Id. at 727.

Here, in contrast, Basis Schools is not a foreign government. Rather, Basis Schools is a nonprofit corporation conducting business in Texas. There is no dispute here, as there was in the State of Arizona (which BTX is not). For these reasons, to the extent the trial court based its order granting Basis Schools’ plea to the jurisdiction on this ground, the trial court erred.

G. BTX’s and Basis Schools’ cross-issue

Because we conclude the trial court erred in granting Basis Schools’ plea to the jurisdiction, we need not address BTX’s and Basis Schools’ cross-issue as it relates to the dismissal of Konark’s claim against Basis Schools. And, as noted above, Konark does not appeal the trial court’s ruling granting BTX’s plea to the jurisdiction, so we may not disturb that ruling. We note, however, that nothing in the Charter Schools Act or the Water Code provides that an open-enrollment charter school or a charter holder like BTX is a “government or governmental subdivision or agency” for purposes of a section 11.086(a) cause of action against it. Therefore, we decline to modify the trial court’s order to dismiss the claim against BTX with prejudice. Basis Schools’ and BTX’s cross-issue is overruled.

Conclusion

Because we conclude Basis Schools is not entitled to governmental immunity in this case, we reverse the trial court’s order as it pertains to Basis Schools and remand the cause to the trial court for further proceedings on the merits. Konark has not appealed the trial court’s ruling granting BTX’s plea to the jurisdiction, so we do not disturb it. Basis Schools’ and BTX’s cross-issue is overruled.

Footnotes

1

At least one of our sister courts (in a pre-515 S.W.3d 359, 363–64 (Tex. App.—Tyler 2016, no pet.).

2

Also unlike the Whistleblower Act, the Water Code does not contain a “clear and unambiguous waiver of governmental immunity for violating City of Midlothian v. Black, 271 S.W.3d 791, 797–98 (Tex. App.—Waco 2008, no pet.).

3

Basis Schools also argued it is a “government or governmental subdivision or agency” because its property is “public property for all purposes under state law” pursuant to TEX. EDUC. CODE ANN. § 12.128(a). We disagree, however, that the status of Basis Schools’ real property has any bearing on whether Basis Schools is itself a governmental entity for purposes of a Water Code claim.

4

We note that if the term “government or governmental subdivision or agency” as used in Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000) (“This conclusion is consistent with the traditional statutory construction principle that the more specific statute controls over the more general.”).

5

The Arizona statute does not define “sponsor” or “governing body.” See id. § 15-101 (definitions).

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