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Court of Appeals of Texas, Dallas.

THE UNIVERSITY OF TEXAS SYSTEM, Appellant

v.

DIANE M. BARTEK, Appellee

No. 05-20-00525-CV

|

Opinion Filed December 29, 2022

On Appeal from the 101st Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-16-12515

Before Justices Myers, Nowell, and Rosenberg1

Opinion by Justice Rosenberg

MEMORANDUM OPINION

BARBARA ROSENBERG JUSTICE, ASSIGNED

*1 Reversed and Rendered and Opinion Filed December 29, 2022

This is a worker’s compensation case. After the Texas Department of Insurance (Department2), Division of Worker’s Compensation (Division3) ruled that Diane M. Bartek “did not sustain a compensable injury in the form of an occupational disease” on February 4, 2015, and she “did not have [a] disability during the period beginning August 10, 2015 through April 17, 2016, as a result of the claimed injury,” and the Department’s appeals panel affirmed that ruling, Bartek filed a petition for review in the trial court. After a trial, the jury found Bartek sustained a compensable injury in the form of an occupational disease and that injury was the producing cause of her disability and awarded her attorney’s fees.

The University of Texas System (UT System) appeals the trial court’s final judgment in favor of Bartek and raises two issues on appeal arguing: (1) the evidence is legally and factually insufficient to support the judgment because the expert’s opinion on causation was unreliable and amounts to no evidence; and (2) the trial court erred when it overruled the UT System’s objection to the jury charge on the basis that it applied a definition of “injury” that is contrary to the law. We conclude the testimony of Bartek’s expert was unreliable and is therefore, no evidence. As a result, the evidence is legally insufficient to support the trial court’s judgment. The trial court’s judgment is reversed and a take-nothing judgment is rendered in favor of the UT System.

I. FACTUAL AND PROCEDURAL BACKGROUND

In her original petition, Bartek, an employee of the UT System at the University of Texas at Dallas Police Department, alleged she sustained a compensable injury in the form of an occupational disease on February 4, 2015. And she alleged that she sustained a compensable disability as a result of the occupational disease from August 10, 2015 through April 17, 2016.

On April 14, 2016, a Division benefit review officer held a benefit review conference to mediate the resolution of the disputed claim. However, the parties were unable to reach an agreement.

On June 9, 2016, a Division hearing officer held a contested case hearing and signed a written decision and order on June 15, 2016. In the “discussion” section of the written decision and order, the hearing officer noted, among other things:

• After an ice storm in February 2015 that caused water damage to the police building where Bartek worked, including wet carpet and walls, the area was tested and found to have developed mold;

• “The air in the building was tested on March 17, 2015[,] and found to have elevated levels of Stachybotrys mold spores in several offices... where [Bartek] worked”;

• “[Bartek] and other employees working in the building were relocated on March 18, 2015[,] and the mold [was] cleaned up and remediated by May 21, 2015” and the remediation company reported that “cleaning and remediation had been successfully completed and there was no longer air contamination by mold spores in the building”;

*2 • Maureen McGeehan, M.D., an allergist Bartek had been seeing since October 2010, ordered an immunoassay after Bartek’s mold exposure, which reported that the antigen for Stachybotrys exposure was absent or undetectable in her system on March 20, 2015.

• On April 28, 2015, another test was performed that found elevated levels of trichothecene mycotoxin, group of toxins from multiple genera of fungi, in Bartek’s urine, which “may be associated with exposure to mold, or acquired from foodstuffs in which it is naturally occurring, or from livestock feeds”;

• “[Bartek] admitted she is exposed to livestock feed daily”;

• Bartek provided a causation opinion from William J. Rea, M.D., a specialist in environmental medicine, who is treating Bartek for conditions he relates to “toxic effects of mold exposure,” including diagnoses of “chemical sensitivity, allergic rhinosinusitis, allergic food gastroenteritis, autoimmune nervous system dysfunction, immune deregulation, vasculitis, headache, chronic fatigue, fibromyalgia, [ ] metal sensitivity, [and] toxic encephalopathy”;

• Bartek provided a causation opinion from William Marcus Spurlock, M.D., “who has been treating [Bartek] with vitamin[s] and medications for her complaints” and that Bartek “was continuously exposed to mold for over 5 years resulting in chronic illness”;

• “The opinions [of Dr. Rea and Dr. Spurlock] were not persuasive because they are based on an assumption of continuous exposure to mold at work over a long period of time”;

• “T]he facts show that mold was detected only after flooding in February, 2015[,] with testing on March 17, 2015[,] showing mold spores in the interior air in greater concentrations than the outside air”;

• There was no evidence of direct mold exposure other than to spores in the air and [Bartek] has only claimed inhalation exposure”;

• “The evidence showed that [Bartek] had not developed antigen in her blood for mold exposure, and the presence of tric[h]othecene in [Bartek’s] urine is explained by [Bartek’s] exposure to livestock feed daily at home”;

• Dr. Rea took Bartek off work on August 7, 2015 and did not give her a release to return to work until April 17, 2016;

• Bartek testified that “the reason for the work restrictions before that date was that she felt remediation was not complete” and the UT System “had agreed to do regular mold testing after that”; and

• “The evidence failed to show that [Bartek] was unable to perform her preinjury work during the disability period claimed, but rather that she was taken off to avoid further exposure to mold at work.”

In the “findings of fact” section of the written decision and order, the hearing officer found in part:

3. [Bartek] did not sustain damage or harm to the physical structure of her body in the course and scope of her employment in the form of an occupational disease with a date of injury of February 4, 2015.

4. [Bartek] was not unable to obtain or retain employment at wages equivalent to her preinjury wage due to her claimed injury of February 2, 2015[,] during the period beginning August 10, 2015[,] through April 17, 2016.

In the “conclusions of law” section of the written decision and order, the hearing officer found in part:

3. [Bartek] did not sustain a compensable injury in the form of an occupational disease with a date of injury of February 4, 2015.

*3 4. [Bartek] did not have [a] disability during the period beginning August 10, 2015[,] through April 17, 2016[,] as a result of the claimed injury of February 4, 2015.

Bartek requested review of the hearing officer’s decision and order by the administrative appeals panel. On September 6, 2016, the administrative appeals panel gave notice that the hearing officer’s decision and order were final.

In the trial court, Bartek filed a petition for judicial review of the Department’s decision relating to compensability and benefits eligibility and requested attorney’s fees. In her petition, Bartek complained that the hearing officer’s findings of fact nos. 3–4 and conclusions of law nos. 3–4 were contrary to the preponderance of the evidence. The UT System answered, generally denying the allegations and asserting the affirmative defenses of immunity from suit and immunity from liability as well as maintaining that as an agency or representative of the State, it is not liable for attorney’s fees in Bartek’s action.

Before trial, the UT System moved to exclude the causation testimony of Dr. Rea as unreliable because his opinion was based on erroneous assumptions, i.e., five years of mold exposure, and his methodologies for diagnoses and causation were known to be unsound in the medical and legal communities. The trial court denied the UT System’s motion. Immediately before trial, the UT System renewed its objections to Dr. Rea’s causation opinions, which the trial court overruled. During the trial, Dr. Rea’s deposition testimony was read to the jury. At the close of the UT System’s case, the UT System moved for a directed verdict on the grounds that Bartek had not met her burden of proof, which the trial court denied. A majority of the jury, i.e., ten jurors, returned a verdict in Bartek’s favor, finding that she sustained a compensable injury in the form of an occupational disease and that compensable injury was a producing cause of her disability.

The UT System filed a motion for new trial and a motion for judgment notwithstanding the verdict. Both motions were denied by operation of law.

II. LEGAL SUFFICIENCY OF THE EVIDENCE

In issue one, the UT System argues the evidence is legally and factually insufficient to support the judgment for the reason that the expert’s opinion on general and specific causation was unreliable and amounts to no evidence because: (1) it assumes facts not in the record; (2) it is based on testing methods that have been openly rejected by the scientific and medical communities; and (3) many courts have rejected Dr. Rea’s testimony as to causation as well as his scientifically unsupported diagnoses and methodologies.4 Bartek responds that there is ample evidence to support the jury’s verdict because Dr. Rea is Bartek’s treating physician and he is knowledgeable of the facts.

*4 When confronted by both a legal and factual sufficiency challenge, an appellate court must first review the legal sufficiency of the evidence. See Glover v. Texas Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981). Accordingly, we begin by reviewing the UT System’s argument that the evidence is legally insufficient to support the judgment.

A. Standard of Review

Evidence is legally insufficient to support a jury finding when: (1) the record discloses a complete absence of evidence of a vital fact: (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact: (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence conclusively establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005). Under a traditional legal sufficiency standard of review, when a party attacks the legal sufficiency of the evidence to support an adverse finding on which it did not have the burden of proof at trial, it must demonstrate there is no evidence to support the adverse finding. Exxon Corp. v. Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). In determining whether the evidence is legally sufficient to support a finding, an appellate court considers the evidence in the light most favorable to the judgment and indulges every reasonable inference that would support it. City of Keller, 168 S.W.3d at 822.

When a scientific opinion is not conclusory but the basis offered for it is unreliable, a party who objects may complain that the evidence is legally insufficient to support the judgment. City of San Antonio v. Pollock, 284 S.W.3d 809, 816–17 (Tex. 2009). However, in such a case, if a reviewing court were to consider the evidence in the light most favorable to the verdict, that court should not look beyond the expert’s testimony to determine if it is reliable. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 712 (Tex. 1997). But such an argument is too simplistic because it reduces the no-evidence standard of review to a meaningless exercise of looking to see only what words appear in the transcript of the testimony, not whether there is some evidence. Id. Reliability is determined by looking at numerous factors, therefore, when reviewing whether expert testimony is scientifically unreliable such that it is no evidence, an appellate court necessarily looks beyond what the expert said. Id.

B. Applicable Law

1. Judicial Review of Administrative-Level Workers’ Compensation Decisions

The Texas Workers’ Compensation Act5 entitles a subscribing-employer’s employee who sustains a compensable injury to all health care reasonably required by the nature of the injury as and when needed. TEX. LAB. CODE ANN. § 408.021(a). The Texas Workers’ Compensation Act provides for employee compensation for “compensable injuries” which means “an injury that arises out of and in the course and scope of employment for which compensation is payable under [the Act].” LAB. § 401.011(10). It also provides for employee compensation for a “disability” which the Act defines as “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.” LAB. § 401.011(16). An “occupational disease” is defined as “a disease arising out of and in the course of employment that causes damage or harm to the physical structure of the body.... The term does not include an ordinary disease of life to which the general public is exposed outside of employment, unless that disease is an incident to a compensable injury or occupational disease.” LAB. § 401.011(34).

*5 At the administrative level, disputed claims for benefits proceed through a three-step process: (1) a benefit-review conference; (2) a contested-case hearing; and (3) an administrative appeal. LAB. §§ 410.021–034, 410.151–169, 410.201–.209; Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007). A claimant may appeal the administrative appeals panel’s decision by filing suit in the district court. LAB. § 410.301; Morales, 241 S.W.3d at 516. The decision of the appeals panel is final in the absence of an appeal for judicial review. LAB. § 410.205.

The Texas Workers’ Compensation Act divides judicial review of workers’ compensation appeals into two categories by drawing a distinction between issues that concern compensability and those that do not. LAB. §§ 410.255(a) (all issues other than compensability), 410.301(a) (compensability and benefits eligibility); Morales, 241 S.W.3d at 516. Section 410.301 governs judicial review of administrative-level workers’ compensation decisions regarding compensability or benefits eligibility. LAB. § 410.301; Morales, 241 S.W.3d at 516. The issues of compensability or benefits eligibility that were decided by the administrative appeals panel are tried to the court or to a jury, and the appealing party bears the burden of proof by a preponderance of the evidence.6 LAB. §§ 410.302(b) (issues limited), 410.302 (burden of proof); Williams v. City of Richardson, No. 05-20-00085-CV, 2021 WL 3891593, at *2 (Tex. App.—Dallas Aug. 31, 2021, no pet.) (mem. op.). The records of a contested case hearing are admissible in accordance with the Texas Rules of Evidence, and trial is limited to issues decided by the appeals panel and on which judicial review is sought.” LAB. § 410.302; Williams, 2021 WL 3891593, at *2. Further, to the extent there is a conflict between the Texas Workers’ Compensation Act and the Texas Rules of Civil Procedure, the former controls. LAB. § 410.305. However, the fact finder does not simply review the administrative appeals panel decision for reasonableness, but decides the issues independently based on a preponderance of the evidence. Williams, 2021 WL 3891593, at *2.

2. Reliability of Expert Opinion

Expert testimony is required when an issue involves matters beyond jurors’ common understanding. Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 348 (Tex. 2015). However, the testimony of an expert is generally opinion testimony and whether it rises to the level of evidence is determined under the Texas Rules of Evidence, including Rule 702. Havner, 953 S.W.2d at 712.

Texas Rule of Evidence 702 provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. TEX. R. EVID. 702. In accordance with Rule 702, expert testimony is admissible if: (1) the expert is qualified, and (2) the testimony is relevant and based on a reliable foundation. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). Th relevance and reliability requirements of Rule 702 apply to all expert opinions even though the criteria for assessing them must vary depending on the nature of the evidence. Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211, 216–17 (Tex. 2010). A claim will not stand or fall on the mere ipse dixit of a credentialed witness. Gharda, 464 S.W.3d at 349.

*6 There are six useful considerations for determining the reliability of expert testimony, which are sometimes referred to as the Robinson factors:

(1) the extent to which the theory has been or can be tested;

(2) the extent to which the technique relies on the subjective interpretation of the expert;

(3) whether the theory has been subjected to peer review, publication, or both;

(4) the technique’s potential rate of error;

(5) whether the underlying theory or technique has been accepted as valid by the relevant scientific community; and

(6) the non-judicial uses which have been made of the theory or technique.

Transcontinental Ins., 330 S.W.3d at 216 (citing Robinson, 923 S.W.2d at 557). The Robinson factors apply to a no-evidence review of scientific evidence. Havner, 953 S.W.2d at 714.

Whether an expert’s testimony is reliable is based on more than whether the expert’s methodology satisfies the Robinson factors, which are non-exclusive. See Gharda, 464 S.W.3d at 349; Transcontinental Ins., 330 S.W.3d at 216. Further, Rule 702 contemplates a flexible inquiry. Transcontinental Ins., 330 S.W.3d at 216.

An expert’s testimony must not suffer from an analytical gap that renders it unreliable. See Gharda, 464 S.W.3d at 349. Analytical gaps may include circumstances where: (1) the expert improperly applies otherwise sound principles and methodologies, i.e., examining the facts relied on; (2) the expert’s opinion assumed facts that vary materially from the facts in the record, i.e., examining the facts in the record; and (3) the expert’s opinion is based on tests or data that do not support the conclusions reached, i.e., examining the expert’s ultimate opinion. See Gharda, 464 S.W.3d at 348–49. If an expert relies upon unreliable foundational data, any opinion drawn from that data is likewise unreliable. Havner, 953 S.W.2d at 714.

Unreliable expert testimony, including an unsupported expert opinion, is legally no evidence. Seger v. Yorkshire Ins. Co., 503 S.W.3d 388, 410 n.23 (Tex. 2016); see Pollock, 284 S.W.3d at 820.

3. General and Specific Causation

General and specific causation requirements may apply in the context of a workers’ compensation claim. See Texas Workers’ Compensation Ins. Fund v. Lopez, 21 S.W.3d 358, 363–66 (Tex. App.—San Antonio 2000, pet. denied). “Toxic tort” causation must be applied in the workers’ compensation context. See id. (general or specific causation evidentiary requirements used to evaluate expert testimony in toxic exposure workers’ compensation case).

General causation involves whether the substance at issue is capable of causing the injury at issue while specific causation involves whether the substance at issue in fact caused the particular injury at issue. Havner, 953 S.W.2d at 714. However, general causation is never the ultimate issue of causation tried to the finder of fact in exposure cases. Bostic v. Georgia-Pacific Corp., 439 S.W.3d 332, 351 (Tex. 2014).

Specific causation involves whether a substance caused a particular individual’s injury. Havner, 953 S.W.2d at 714. Importantly, when the evidence demonstrates that there are other plausible causes of the injury or conditions that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty. See Bustamonte v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017); Havner, 953 S.W.2d at 720.

*7 Expert testimony is particularly necessary in exposure cases, in which medically complex diseases and causal ambiguities compound the need for expert testimony. See Brown v. Rreef Mgmt. Co., No. 05-06-00942-CV, 2007 WL 1829725, at *1 (Tex. App.—Dallas June 27, 2007, pet. denied). Proving one type of causation does not necessarily prove the other, and logic dictates that both are needed for an exposure plaintiff to prevail. See id.

C. Application of the Law to the Facts

First, the UT System argues Dr. Rea’s expert causation opinion was unreliable and amounts to no evidence because it assumes facts not in the record. More particularly, it contends that Dr. Rea’s opinion assumed facts that vary materially from the facts in the record; he relied upon facts not in the record. That is, Dr. Rea’s opinion is based on pure speculation as to the duration of Bartek’s exposure to Stachybotrys mold. Without citation to the record, Bartek maintains “there is ample evidence to support that [her] exposure was for the entire time [Bartek] was employed with [the UT System].”

In Plunkett v. Connecticut Gen. Life Ins. Co., 285 S.W.3d 106 (Tex. App.—Dallas 2009, pet. denied), this Court considered a toxic tort case involving claims for property damage by plaintiff apartment tenants, alleging that all of the personal property of each tenant was contaminated by mold on the landlord’s premises. Id. at 115. The Court looked at the testimony of a toxicologist who opined that all of the plaintiffs’ property was contaminated even though he only tested a small number of items, several years after the exposure, which were not taken from areas where mold was found. Id. The expert “theorized, based on generalized toxicological expertise about the ‘very nature’ of mold, that all residents’ property items must have been contaminated.” Id. at 116. Because there was no scientific foundation for the opinion (i.e., “no actual test data from any source”), this Court concluded that the expert’s opinion constituted no evidence of causation. Id. at 117. There was “no empirical evidence that explain[ed] the validity of his extrapolation ....” Id.

Here, Dr. Rea testified that Bartek gave him a patient history indicating she had been exposed to black mold for five years. He stated that Bartek told him that she began working in a moldy building in 2010. On the health questionnaire that Bartek completed for Dr. Rea, she wrote, in part, “Mold exposure @ work over 5 yrs. Significant health changes during that period.” Consistent with Bartek’s statement, Dr. Rea’s causation letter states that “[Bartek] states that she first moved into a mold[y] [ ] work building in 2010.” However, at trial, Bartek testified she did not notice the mold in her office before February 4, 2015, she did not see mold in her office in March 2010, and she was not aware of any testing before March 2015 that confirmed the presence of mold.

In addition, David Zacharias, the chief of police for the University of Texas at Dallas, testified that he worked in the same building as Bartek since 2009, he had not ever seen mold in the police building before Bartek found mold in her office, he did not receive any reports from employees about mold before Bartek found the mold, he is not aware of the building having been tested for mold prior to March 2015, and he is not aware of anything that would show there was mold in the building for approximately five years duration. Timothy Dorsey, Bartek’s coworker who was responsible for support services, testified that no one reported the presence of mold to him before February 2015, he was surprised to find mold in Bartek’s office, and he was not aware of any mold or moisture problems in that area of the building until February 4, 2015. Further, Gary Gross, M.D., the UT System’s expert testified that he had not seen any evidence supporting that Bartek had been exposed to mold at work for over five years.

*8 If an expert’s opinion is based on certain assumptions about the facts, we cannot disregard evidence showing those assumptions were unfounded. City of Keller, 168 S.W.3d at 813. Dr. Rea’s expert opinion on causation was based on Bartek’s report of continuous exposure to mold at work over a period of approximately five years; it assumed facts that vary materially from the facts in the record. Moreover, there was no scientific basis to validate that opinion. See Plunkett, 285 S.W.3d at 117. As a result, his opinion is drawn from unreliable foundational data. See Havner, 953 S.W.3d at 714 (if expert relies on unreliable foundational data, any opinion drawn from that data is unreliable).

Second, the UT System argues Dr. Rea’s expert causation opinion was unreliable because it is based on testing methods that have been openly rejected by the scientific and medical communities. Essentially, they contend that Dr. Rea’s underlying theory or technique has not been accepted as valid by the relevant scientific community and his opinion is based on tests or data that do not support the conclusions reached. When conducting a no-evidence review, we cannot consider only an expert’s bare opinion, but must also consider contrary evidence showing it has no scientific basis. See Gharda, 464 S.W.3d at 349; City of Keller, 168 S.W.3d at 813.

In his causation report, Dr. Rea diagnosed Bartek with toxic encephalopathy, toxic effect molds and mycotoxins, chemical sensitivity, allergic rhinosinusitis, allergic food gastroenteritis, autonomic nervous system disfunction, immune deregulation, vasculitis, headache, chronic fatigue, fibromyalgia, and metal sensitivity. However, Dr. Gross testified that these medical conditions were not caused by or have never been related to exposure to Stachybotrys mold.

Dr. Rea based these diagnoses on the following medical or laboratory findings: urine mycotoxin; delayed immunity test (DIT); immunoglobin levels; venous blood gas; heart rate variability; posture sway (balance) testing (Romberg test); and intradermal serial dilution provocation or neutralization testing. He concluded that “in all medical probability [Bartek’s] incapacitation [was] a result of her exposure to molds and mycotoxins in the workplace.”

Dr. Rea’s causation report states the urine mycotoxin analysis revealed elevated levels of Trichothecene which is a mycotoxin associated with Stachybotrys. However, Dr. Gross testified that this is not a Federal Drug Administration (FDA) approved test, the Centers for Disease Control and Prevention (CDC) had a report that stated it has not been shown to have any relationship to a disease, and he is not aware of any literature that supports the test. Further Dr. Gross stated the test does not reflect the source of the Trichothecene, which could have also been food, medication, or livestock feed. Dr. Gross testified it is not a test that he “would put any stock in to try to help [him] make a diagnosis.” Further, Bartek admitted she keeps horses and hay or horse feed on her property. And, the evidence does not demonstrate that these other plausible causes of Bartek’s injury or condition were negated, and Bartek was required to offer evidence excluding those causes with reasonable certainty. See Bustamonte, 529 S.W.3d at 456; Havner, 953 S.W.2d at 720.

In his causation report, Dr. Rea stated he conducted a delayed immunity test. However, Dr. Gross testified that this test cannot be used to determine whether someone has an allergy to Stachybotrys mold and one of the things that suppresses delayed immunity is steroids, which Bartek was taking.

*9 Next, Dr. Rea’s causation report states that he tested Barteks’ immunoglobin levels. While Dr. Gross did not have an issue with type of testing, he testified that the testing results actually showed Bartek’s IGA, IgG, and IgM were normal, which indicated that Bartek has a normal functioning immune system. As a result, Dr. Gross was unsure how Dr. Rea could opine that Bartek had immune deregulation.

Also, Dr. Rea conducted a venous blood gas test. However, Dr. Gross testified that this test does not have much utility and is not a test that is commonly done. Although the test is reliable, Dr. Gross stated it is not a functional test and it would not be used to determine whether someone was allergic to Stachybotrys mold.

In his causation report, Dr. Rea concluded that the Heart Rate Variability Test revealed “a dominant sympathetic nervous system.” However, Dr. Gross testified that this is not a valid test for determining whether someone is allergic to Stachybotrys mold and a person’s heart rate varies during the day without exposures.

Dr. Rea concluded in his causation report that “[t]he posturography test documents central and peripheral nervous system dysfunction.” Dr. Gross stated that the Romberg test is a neurological test that reflects whether there is an abnormality in another part of the body, e.g., the spinal system or middle part of the ear. According to Dr. Gross this is not a test that would be used to determine whether someone was having an adverse health effect related to Stachybotrys mold exposure.

Finally, Dr. Rea’s expert report relied on intradermal serial dilution provocation or neutralization testing and concluded “the molds and mycotoxins reproduced [Bartek’s] symptom [that] she was experiencing at work.” However, Dr. Gross testified that studies from a university in California and doctors in Colorado showed that with a high enough concentration, everyone will test positive so the test is not valid. Also, patients who received a placebo had the same incidence of symptoms as the patients injected with the allergen. In addition, Dr. Gross stated that this test is no longer used and would not be a test used for determining whether someone had an allergy to Stachybotrys mold.

Dr. Rea’s expert causation opinion was unreliable because it is based on testing methods that have been openly rejected by the scientific and medical communities. His opinion is based on tests or data that do not support the conclusions reached.

Bartek maintains that Dr. Rea is her treating physician and therefore, “empowered under the Texas Workers’ Compensation Act to provide a causation report.” And as her treating physician, Dr. Rea has knowledge of the facts involved in her work-related injury claim, including specialized reports from her other providers and the various testing agencies. We note that, although Dr. Rea was Bartek’s treating physician, his opinion must meet the same criteria for establishing causation as any other expert. See Feria v. Dynagraphics Co., No. 08-00-00078-CV, 2004 WL 500869, at *4–6 (Tex. App.—El Paso Mar. 15, 2004, pet denied) (mem. op.). It did not.

Therefore, Dr. Rea’s expert opinion suffers from analytical gaps that renders it unreliable. Accordingly, we conclude that Dr. Rea’s expert testimony is legally no evidence.

Bartek submitted the causation letters of Dr. Wm. Marcus Suprlock and Dr. Maureen McGeehan. They were admitted over objection. First, letters written for the purpose of advising as to a doctor’s findings on examination and evaluation of a patient are hearsay. Rollins v. Texas Coll., 515 S.W.3d 364, 368 (Tex. App.—Tyler 2016, pet denied). The trial court erred in admitting them. Moreover, the letters suffered from some of the same deficiencies as Dr. Rea’s testimony. Neither evaluates the medical probability. The Spurlock affidavit was based on the same assumptions as Rea’s testimony. McGeehan does not claim to be an expert. Because Bartek’s workers’ compensation “causation letters” from Drs. Spurlock and McGeehan are inadmissible hearsay without an exception, and because they are not medical opinions given to reasonable medical probability, they are no evidence of causation.

*10 Consequently, we conclude the evidence was legally insufficient to support the trial court’s judgment. The first part of issue one is decided in favor of the UT System.

Based on our resolution of issue one, we need not address the second part of the UT System’s first issue arguing the evidence is factually insufficient to support the judgment or its second issue arguing the trial court erred when it overruled the UT System’s objection to the jury charge on the basis that it applied a definition of “injury” was is contrary to the law.

III. CONCLUSION

We reverse the trial court’s judgment and render a take-nothing judgment in favor of the UT System.

Footnotes

1

The Hon. Barbara Rosenberg, Justice, Assigned. This case was submitted without oral argument. At the time this case was submitted, Justice Leslie Osborne was a member of the panel. After her resignation, Justice Rosenberg was designated to sit on the panel and participated in the decision of this case. TEX. R. APP. P. 41.1.

2

Section 401.011(13-a) defines “Department” as “the Texas Department of Insurance.” TEX. LAB. CODE ANN. § 401.011(13-a).

3

Section 401.011(16-a) defines “Division” as “the division of workers’ compensation of the [D]epartment.” LAB. § 401.011(16-a).

4

The UT System’s survey of the law is correct with some of the courts specifically rejecting or discrediting Dr. Rea’s opinions. E.g., Bradley v. Brown, 42 F.3d 434, 436–39 (7th Cir. 1994), affirming 852 F. Supp. 690 (N.D. Ind. 1994); Coffey v. Cty. of Hennepin, 23 F. Supp. 2d 1081, 1086 (D. Minn. 1998); McCook v. Unum Life Ins. Co. of Am., 463 F. Supp. 3d 729, 737–39 (E.D. La., 2020) (order); Bryant v. Metric Prop. Mgmt., Inc., No. Civ.A. 4:03-CV-212-Y, 2004 WL 1359526, at *7–8 (N.D. Tex. June 17, 2004) (order); Hundley v. Norfolk & W. Ry. Co., No. 91 C 6127, 1995 WL 17826563, at *1 (N.D. Ill. Apr. 3, 1995) (order); Brown v. Rreef Mgmt. Co., No. 05-06-00942-CV, 2007 WL 182975, at *1–2 (Tex. App.—Dallas June 27, 2007, pet. denied) (mem. op.); McNeel v. Union Pac. R.R. Co., 753 N.W.2d 321, 329–332 (Neb. 2008); Myhre v. N.D. Workers Comp. Bureau, 653 N.W.2d 705, 710–713 (N.D. 2002); Jones v. Riskin Mfg., 834 So.2d 1126 (La. Ct. App. 2002). However, while it is informative, these decisions are not determinative of our analysis.

5

Section 401.001 of the Texas Labor Code provides that title 5, subtitle A, may be cited as the “Texas Workers’ Compensation Act.” LAB. § 401.001.

6

We note that all issues other than compensability or benefits eligibility are reviewed under the substantial evidence rule. LAB. § 410.255(b); Williams, 2021 WL 3891593, at *2.

Court of Appeals of Texas, Dallas.

KENNETH HENRY, Appellant

v.

MARC A. NOTZON AND LAW OFFICE OF MARC A. NOTZON, P.C., Appellees

No. 05-20-00994-CV

|

Opinion Filed December 22, 2022

On Appeal from the 191st Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-19-13449

Before Justices Schenck, Molberg, and Pedersen, III

Opinion by Justice Pedersen, III

Molberg, J., dissenting.

MEMORANDUM OPINION

BILL PEDERSEN, III JUSTICE

*1 AFFIRMED and Opinion Filed December 22, 2022

Appellant Kenneth Henry sued appellees Marc A. Notzon and the Law Offices of Marc A. Notzon, P.C. (together, Notzon) claiming a breach of fiduciary duty. The trial court granted summary judgment in favor of Notzon based on collateral estoppel. In two appellate issues, Henry argues the trial court erroneously granted summary judgment and erroneously denied Henry’s motions to compel certain discovery by Notzon. We affirm the trial court’s judgment.

Background

On May 29, 2015, Henry was driving a truck for his long-time employer, Time Warner Cable (TWC). As a Maintenance Technician, Henry was assigned a company truck to drive to commercial and residential locations to install and repair cable services. Henry ran a red light and hit another vehicle; Henry and the three people in the other vehicle were seriously injured, and both vehicles were totaled. That accident touched off a series of business and legal proceedings, culminating with this case now on appeal.

Henry’s Termination

Well before the 2015 accident, TWC learned that Henry had been diagnosed with insulin-dependent diabetes mellitus. On the day of the accident, a co-worker raised a question about Henry’s behavior, claiming Henry was acting “weird and combative.” Concern was expressed about Henry’s blood sugar, and a supervisor was notified. For part of the day, Henry rode in a truck with the supervisor. Eventually he “was put back in his company truck and told to go home.” That was when the accident occurred. Henry’s injuries included broken vertebrae.

Just days after the accident, Notzon undertook representation of both Henry and TWC in regard to the accident; Notzon had represented TWC for many years. Notzon called Henry, requesting a list of his medications. Henry took his medications to TWC, where he met with Notzon and a number of TWC employees. The group discussed Henry’s diabetes, his medications, and the accident. Days after that meeting, according to Henry, an Accident Review Committee (ARC) conducted a review of the accident.1 Notzon and a number of TWC representatives attended the proceeding.

Henry continued to be treated for his injuries. He filed a worker’s compensation claim and was released to return to work on September 7, 2015. Shortly thereafter, according to TWC and Notzon, an ARC was held. (A TWC representative testified that these committees typically review an accident within seven days, but this one was delayed because of Henry’s leave of absence.) Henry learned that Notzon had spoken with TWC representatives before and after that proceeding. Notzon contends he spoke with Henry then as well and advised him “to say very little to avoid criminal prosecution.” Henry denies that Notzon spoke to him at all concerning the proceeding, and Henry denies attending the proceeding. Indeed, Henry questions whether a September ARC actually occurred. According to TWC, the ARC determined that Henry’s accident had been avoidable.

*2 On October 2, 2015, Henry’s employment was terminated. TWC asserted that Henry was fired because he was responsible for a severe, avoidable accident.

The Ward Lawsuit

Both Henry and TWC were sued by the three people in the vehicle struck by Henry.2 Notzon represented both defendants throughout the suit, and he eventually negotiated settlements with all three plaintiffs. Documents indicate that Notzon’s representation of Henry was paid for by ESIS, Inc., the entity that administered Henry’s worker’s compensation claim.

Henry v. TWC

Henry sued TWC for wrongful termination in federal court. He claimed that TWC discriminated against him because of his disability, i.e., his diabetes. He also alleged that TWC fired him in retaliation for his filing a worker’s compensation claim. In a summary judgment proceeding discussed in more detail below, the trial court concluded that Henry was unable to prove either of his claims because the summary judgment evidence established that TWC fired him for causing a severe, avoidable accident. Henry appealed the trial court’s decision to the Fifth Circuit Court of Appeals; that court affirmed the judgment for TWC.

Henry v. Notzon

Henry filed this lawsuit against Notzon in August 2019. He contends that Notzon breached the fiduciary duty he owed Henry while representing him. Specifically, Henry charges that Notzon gave TWC information at the time of the September ARC that resulted in TWC’s terminating Henry. Notzon did not disclose to Henry that he was meeting with TWC, and he refused to disclose anything he had told TWC about Henry. Henry complains further that Notzon has misrepresented facts surrounding his role in the termination, including the contention that there was an ARC on September 25, 2015, and that he warned Henry to say little to avoid criminal charges. Henry contends that Notzon was involved in the decision to fire Henry, to “orchestrate” the September ARC so that it would appear the accident was solely the fault of Henry, and to exculpate TWC for its own gross negligence in allowing Henry to drive. Henry pleaded that these violations of Notzon’s duty caused TWC to terminate Henry’s employment, and he alleges that he suffered not only a loss of employment-related benefits, but also actual and exemplary damages as a result.

Notzon filed a traditional motion for summary judgment, arguing that Henry was unable to prove that any breach of duty by Notzon was the cause of his termination and the damages that flowed from that termination. Notzon asserted that the cause of Henry’s termination had been determined in the federal lawsuit: TWC fired him because he caused a severe, avoidable accident. Notzon argued that the doctrine of collateral estoppel, thus, barred relitigation of the causation issue. The trial court granted Notzon’s motion.

As the case proceeded below, Henry pressed for discovery of a number of documents that Notzon contended were privileged based on his attorney-client relationship with TWC. The trial court denied Henry’s motions to compel production of the documents.

*3 Henry’s appeal in this Court challenges the trial court’s grant of summary judgment and its denial of his motions to compel.

Summary Judgment Based on Collateral Estoppel

The affirmative defense of collateral estoppel—sometimes called issue preclusion—bars the successive litigation of an issue of fact or of law that was actually litigated and resolved in a valid court determination essential to the prior judgment. Taylor v. Sturgell, 553 U.S. 880, 892 (2008). In his first issue, Henry argues that the trial court erred by granting Notzon’s motion for summary judgment based on collateral estoppel.3 This defense is designed to “promote judicial efficiency, protect parties from multiple lawsuits, and prevent inconsistent judgments by precluding the relitigation of issues.” Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994).

Henry v. TWC: The First Motion for Summary Judgment

Henry’s federal court wrongful termination suit was predicated on two legal theories: discrimination based on his disability and retaliation for his filing a worker’s compensation claim. TWC filed a motion for summary judgment seeking to show (1) that Henry could not prove either discrimination or retaliation, and (2) that the summary judgment evidence actually proved a different reason for Henry’s termination, i.e., the fact that he had caused a severe, avoidable accident. The Honorable Judge David Godbey issued a Memorandum Opinion, granting TWC’s motion. Henry v. Spectrum LLC, No. 3: 18-CV-01 086-N (N.D. Tex. March 3, 2019) (Henry I).

The court applied the burden-shifting test from McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) in evaluating this claim. It concluded that even if all inferences were drawn in favor of Henry to conclude that he made a prima facie showing of discrimination, TWC had articulated a legitimate, nondiscriminatory reason to terminate Henry’s employment, and Henry had failed to show that a reasonable jury could conclude that TWC’s reasons for terminating Henry were mere pretext. Henry I at 6–7.4 Ultimately, the court concluded:

In sum, Henry cannot show either direct or circumstantial evidence of disability discrimination. That the parties dispute whether Henry’s diabetes was in fact the cause of the accident is irrelevant. Time Warner alleges that Henry’s condition was never a factor in its decision, and Henry produces no evidence to create a reasonable inference that it was. The Court thus grants summary judgment to Time Warner as to Henry’s ADA discrimination claim.

Id. at 7.

*4 The opinion goes on to assert that, if he was to survive summary judgment on his workers’ compensation retaliation claim, “Henry must show that ‘the employer’s action would not have occurred when it did had the employee’s protected conduct filing workers’ compensation claim not occurred.’ ” Id. at 8 (citing Haggar Clothing Co. v. Hernandez, 164 S.W.3d 386, 388 (Tex. 2006)). But the court concluded: “In short, [Henry] has not given the Court any evidence suggesting that he would have been treated differently but for his decision to file for workers’ compensation.” Henry I at 9.

Having concluded that TWC’s stated reason for terminating Henry’s opinion was not a pretext and that Henry had provided no evidence that the termination would not have occurred when it did if he had not filed his workers’ compensation claim, Judge Godbey granted TWC’s summary judgment motion and dismissed Henry’s suit for wrongful discharge. Id.

Henry appealed, and the Fifth Circuit affirmed. See Henry v. Spectrum, L.L.C., No. 19-10452 (5th Cir. 20119) (per curiam, not designated for publication). As to Henry’s claim for discharge based on his disability, the court stated:

To succeed, Henry needed to create a fact issue about Time Warner’s motive in firing him. The company’s safety policy explicitly allowed for immediate termination for severe accidents. The undisputed facts indicate that is what happened here.

Id. at 4 (interior citation omitted). And when reviewing Henry’s retaliation claim, the court agreed with the trial court that Henry failed to establish causation. It concluded that there was “nothing in the record” supporting a conclusion that Henry would have been treated differently but for his filing for workers’ compensation. Id. at 6.

Thus, the Fifth Circuit affirmed that Henry was unable to establish that his termination was caused by discrimination or retaliation. Instead, the termination was caused by TWC’s conclusion that Henry had caused a severe, avoidable accident.

Henry v. Notzon: The Second Summary Judgment Motion

In this lawsuit, Henry alleges a breach of Notzon’s fiduciary duty, tied primarily to Notzon’s undisclosed meetings and communications with TWC which, Henry contends, caused TWC to fire him. To prevail on a breach of fiduciary duty claim, a plaintiff must prove three elements: the existence of a fiduciary duty, a breach of the duty, and damages caused by the breach. Las Colinas Obstetrics-Gynecology-Infertility Ass’n, P.A. v. Villalba, 324 S.W.3d 634, 645 (Tex. App.—Dallas 2010, no pet.).

Notzon’s traditional summary judgment motion raised the affirmative defense of collateral estoppel. He argued that the issue of causation of damages had been conclusively determined against Henry in the federal lawsuit. Judge Godbey’s opinion, affirmed by the Fifth Circuit, determined that the actual (i.e., not pretextual) reason for Henry’s termination was TWC’s good faith belief that Henry had caused a severe, avoidable accident. Thus, Notzon argues, Henry is precluded in this lawsuit from arguing that it was Notzon’s betrayal that caused the termination and damages that flowed from it. See, e.g., Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 521 (Tex. 1998) (“If a cause of action in the second lawsuit involves an element already decided in the first lawsuit, that cause of action is barred.”).

The trial court granted Notzon’s motion, and Henry appeals that order. The application of collateral estoppel is a legal question that we review de novo. See In re J.A.C., No. 05-17-00768-CV, 2018 WL 2191604, at *3 (Tex. App.—Dallas May14, 2018, no pet.) (mem. op.).

The Requirements of Collateral Estoppel

*5 A party attempting to establish that a claim is barred by collateral estoppel must prove: (1) that the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) that those facts were essential to the judgment in the first action; and (3) that the party against whom the doctrine is asserted was a party in the first action. See Trapnell, 890 S.W.2d at 801. In this case, it is undisputed that Henry was a party to his suit for wrongful discharge against TWC and that he is bound by its judgment. Accordingly, we discuss in detail only the first two collateral estoppel requirements.

(1) Relitigation of the same facts

Notzon’s motion for summary judgment argued that the cause of Henry’s termination from TWC was fully and fairly litigated in the TWC case. To determine whether facts were fully and fairly litigated in the first suit, we consider whether the parties were fully heard, whether the court supported its decision with a reasoned opinion, and whether the decision was subject to appeal or was in fact reviewed on appeal. Webb v. Diversegy, LLC, No. 05-17-01258-CV, 2019 WL 1146707, at *4 (Tex. App.—Dallas Mar. 13, 2019, pet. denied) (mem. op.).

Our review of the summary judgment proceedings in federal court indicate that the parties were fully heard. TWC’s summary judgment motion addressed both of Henry’s claims. TWC established first that—even if Henry could establish a prima facie case of discrimination based on a disability—it had an articulable, non-discriminatory reason to terminate Henry’s employment, namely Henry’s causing a severe, avoidable accident. Henry responded to the motion, but he offered no evidence that the reason articulated by TWC was pretextual. Similarly, Henry was unable to offer any evidence that he would not have been terminated when he was if he had not filed a worker’s compensation claim.

Judge Godbey addressed each of Henry’s attempts to defeat TWC’s motion, but he rejected the evidence offered by Henry as irrelevant or insubstantial. The opinion relies on the summary judgment record and settled law. We conclude that the Henry I opinion is well reasoned. That conclusion is supported by the fact that the Fifth Circuit affirmed not only Judge Godbey’s disposition of the case, but also his rationalization, stating:

To succeed, Henry needed to create a fact issue about Time Warner’s motive in firing him. The company’s safety policy explicitly allowed for immediate termination for severe accidents. The undisputed facts indicate that is what happened here.

Id. at 4.

Henry disputes that this case turns on facts litigated in the federal case. He argues that because Notzon’s ethical breaches were hidden at the time of the federal proceeding, the breach of his fiduciary duty to Henry could not have been litigated then. This argument appears to misunderstand the nature of collateral estoppel. To the extent Henry is focused on his tort claim for breach of fiduciary duty, we stress that collateral estoppel does not operate to preclude claims; instead, it precludes relitigation of specific facts or issues. See Trapnell, 890 S.W.2d at 801.5 For that reason, collateral estoppel can apply in two cases based on different claims, so long as the issue determined in the first case appears in the second case as well. See Webb, 2019 WL 1146707, at *4 (“Collateral estoppel prevents relitigation of issues resolved in a prior suit, even if the issue recurs in the context of a different claim.”). Here, Notzon contends that a specific factual issue—the cause of Henry’s termination—has already been legally determined, and, therefore, its relitigation is precluded. Notzon’s defense is not defeated because the cause of Henry’s termination was determined in a lawsuit that urged different claims.

*6 We conclude that the cause of Henry’s termination was fully and fairly litigated in federal court. In that proceeding “the undisputed facts” established that he was fired by TWC because he caused the severe, avoidable accident that injured himself and others.

(2) Proof of causation was essential to the first judgment

To determine whether a fact issue is essential to the judgment, we look to the factual determinations that were necessary to form the basis of the first judgment. Tarter v. Metro. Sav. & Loan Ass’n, 744 S.W.2d 926, 928 (Tex. 1988). Henry’s brief acknowledges that causation was an essential element of both bases of his wrongful discharge claim:

In the prior case, the essential elements Henry sought to prove under the Americans Disabilities Act were: (1) he has a disability or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision because of his disability.

Nall v. BNSF Ry. Co., 917 F.3d 335, 341 (5th Cir. 2019) (emphasis added).

With respect to the workers’ compensation retaliation claim, Henry sought to prove: that (1) he, in good faith, filed a workers’ compensation claim; (2) he suffered an adverse employment action; and (3) there is a causal link between the two, i.e., that the filing of the claim was a “determining factor” in his discharge.

Continental Coffee Products Co. v. Cazares, 937 S.W.2d 444 (Tex. 1996) (emphasis added).

Importantly, Henry has claimed the same injury in both lawsuits: termination of his employment. In addition, Henry has claimed the same damages flowing from that termination: past and future lost earnings and employee benefits; compensatory damages, including mental anguish and other nonpecuniary losses; and exemplary damages.6 In both lawsuits, thus, Henry was required to prove that the defendant’s tortious conduct caused his termination and those damages. The question raised, then, is whether Henry can prove that Notzon’s conduct, however reprehensible it may have been, caused TWC to fire Henry, because the federal courts have concluded that the cause of his termination was actually the severe, avoidable accident that he caused.

Henry contends that collateral estoppel cannot apply because Notzon’s duties and responsibilities to Henry were never decided in any fashion in the federal suit. In effect, Henry argues that because his attorney’s disloyal conduct—the breach element of Henry’s breach of fiduciary duty claim—was not an element of his prior claims against TWC, the factual issues litigated in the wrongful termination case can have no preclusive effect in this case. We have already confirmed that the claims in two lawsuits need not be identical for collateral estoppel to apply. See Webb, 2019 WL 1146707, at *4. It follows necessarily that all of the essential elements of the claims urged in the two actions need not be identical. It is sufficient to invoke the doctrine of collateral estoppel if one essential element, proven in the first action, is also necessary to the second. See State & Cnty. Mut. Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001) (“The issue decided in the prior action must be identical to the issue in the pending action.”).

*7 Finally, if Henry’s argument directed at proof of the element of breach is a challenge to the sufficiency of Notzon’s summary judgment motion, we must reject it as well. A defendant may prevail on summary judgment if he establishes as a matter of law that the plaintiff-movant cannot establish one element of his cause of action. See Wilbert Family Ltd. P’ship v. Dallas Area Rapid Transit, 371 S.W.3d 506, 510 (Tex. App.—Dallas 2012, pet. dism’d). Texas law does not require the defendant to disprove every element of the plaintiff’s claim.

We are not unsympathetic to Henry’s contentions concerning his attorney’s conduct. An attorney owes a fiduciary duty of loyalty to his client throughout the course of the representation. Gillis v. Provost & Umphrey Law Firm, LLP, No. 05-13-00892-CV, 2015 WL 170240, at *10 (Tex. App.—Dallas Jan. 14, 2015, no pet.). The existence of a joint representation does not somehow diminish that duty. But this is not a case in which we are charged with adjudging the sufficiency of a jury’s findings concerning an attorney’s violation of his duties. We can only determine the issue before us: whether the trial court erred in granting Notzon’s motion for summary judgment on the ground that Henry is collaterally estopped from proving that Notzon’s breach was the cause of his termination.

Causation is an essential element in a client’s claim seeking actual damages as a remedy for his breach of fiduciary duty claim. Rogers v. Zanetti, 517 S.W.3d 123, 136 (Tex. App.—Dallas 2015), aff’d, 518 S.W.3d 394 (Tex. 2017). It was also an essential element in Henry’s wrongful termination claims. See Nall v. BNSF Ry. Co., 917 F.3d 335, 341 (5th Cir. 2019); Continental Coffee Products Co. v. Cazares, 937 S.W.2d 444 (Tex. 1996). And the injury allegedly caused in both cases is identical. Accordingly, we conclude the trial court appropriately applied the doctrine of collateral estoppel in this case.

The Equitable Exception for Proof of Causation

Henry contends that, even if he cannot prove causation, his claim should survive. He relies upon the case of First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214 (Tex. 2017). In that case, the church alleged that one of its lawyers, Mr. Parker, had breached his fiduciary duty to inform the church when he learned that another lawyer had stolen over a million dollars of the church’s money that was being held in the law firm’s trust account. Id. at 217—18. The court of appeals had affirmed the trial court’s summary judgment in favor of Parker, concluding that Parker’s conduct had not caused the church’s loss. Id. at 219. In the supreme court, the church argued—as Henry does here—that it did not have to prove causation in a breach of fiduciary case. Id. at 220. The supreme court reviewed its earlier decisions in Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 514 (1942), in which a disloyal agent was forced to return his “secret commission,” and Burrow v. Arce,. 997 S.W.2d 229, 240 (Tex. 1999), in which attorneys who breached fiduciary duties to their clients were forced to return their fees to those clients. Id. at 220—21. Then the supreme court delivered this succinct statement of the rule concerning when proof of causation is and is not required in a breach of fiduciary duty case:

In neither of those cases did we hold that a client need not prove that a breach of fiduciary duty caused actual damages if a client is claiming such damages. Plainly put, for the church to have defeated a no-evidence motion for summary judgment as to a claim for actual damages, the church must have provided evidence that Parker’s actions were causally related to the loss of its money. It did not do so. On the other hand, the church was not required to show causation and actual damages as to any equitable remedies it sought.

*8 Id. at 221.

It is not entirely clear what Henry hopes to recover at this point in his lawsuit. As we discussed above, he pleaded entitlement to actual and exemplary damages. At one point in his appellate brief, Henry states that he “only seeks equity,” and Henry did request fee forfeiture in this case. But in his reply brief, Henry reasserts that he “is entitled to equity, compensatory damages, and potentially exemplary damages.”

Based upon the Parker rule quoted above, we conclude that Henry is not entitled to actual damages because he has failed to prove that Notzon’s conduct caused such damages. See id. Moreover, Texas law forbids recovery of exemplary damages in the absence of an award of actual damages. TEX. CIV. PRAC. & REM. CODE ANN. § 41.004(a).

The Parker rule allows a client to force his unfaithful lawyer to forfeit his fees, even in the absence of proof of causation. But Henry did not pay Notzon’s fees; TWC’s worker’s compensation administrator paid them. Henry asserts without citation that “whether Henry paid fees is irrelevant. His lawyer deceived him.” But Texas law does not allow disgorgement of amounts not paid by the client. Liberty Mut. Ins. Co. v. Gardere & Wynne, L.L.P., 82 Fed. Appx. 116, 118 (5th Cir. 2003).

We conclude the trial court did not err by granting summary judgment in Notzon’s favor. We overrule Henry’s first issue.

Denial of Henry’s Motions to Compel

In his second issue, Henry argues that the trial court erroneously denied his motion to compel production of Notzon’s file (specifically including all of the documents identified in Notzon’s privilege log and a calendar used to refresh Notzon’s recollection in proceedings below) and refused to compel Notzon to answer all questions regarding his secret meetings with TWC. The materials sought by Henry through his motions to compel may be relevant to the breach element of his breach of fiduciary duty claim. However, our resolution of Henry’s first issue renders these discovery matters moot.

We need not address the substance of Henry’s second issue.

Conclusion

We affirm the trial court’s judgment.

Footnotes

1

In our record, the acronym ARC is sometimes used to refer to the committee and sometimes used to refer to the committee’s procedure for reviewing an accident.

2

The lawsuit was styled Wanda Adaway and Anethra Ward, Individually and as Next Friend of Ladaysha Robinson, a Minor v. Time Warner Cable Texas, LLC and Kenneth Raynard Henry; it was filed in the same court as this suit, the 191st District Court of Dallas County.

3

Although the parties initially briefed additional issues in the trial court, they have agreed that only the issue of collateral estoppel could support the trial court’s summary judgment.

4

The opinion considered and rejected both of Henry’s arguments concerning pretext: that TWC gave inconsistent explanations regarding his termination and that TWC departed from its disciplinary policy in terminating him. The court concluded that Henry may have identified conflicting evidence about issues such as timing or personnel involved, there was no conflicting evidence about why he was fired. Id. at 6—7. And although Henry argued that company policy called for progressive punishment, the court pointed out that the policy provided that severity of an accident can accelerate punishment up to and including termination. Id. at 7.

5

To the extent Henry is focused upon a failure to prove the element of breach within his breach of fiduciary claim, we address that concern below.

6

The single addition to Henry’s demand in this action is the equitable remedy of fee forfeiture, which we address in the next section of this opinion.

Court of Appeals of Texas, Dallas.

Deloris PHILLIPS, Appellant

v.

TEXAS DEPARTMENT OF INSURANCE DIVISION OF WORKERS’ COMPENSATION, Fleming Foods, Inc., Core-Mark Holding Co., the Raymond Corp., Cigna Insurance Co., Bankers Standard Insurance Co., ESIS-Chubb Management Corp., Liberty Mutual Insurance Co., United Parcel Service, Inc., Teamsters Local Union 767, City of Dallas Municipality, Dallas County Municipality, and Dallas Police Department, Appellees

No. 05-22-00610-CV

|

Opinion Filed July 8, 2022

On Appeal from the 101st Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-21-06299

Attorneys & Firms

James Anthony Person III, Dennis M. McKinney, for Appellee Texas Department of Insurance Division of Workers Compensation, et al.

Todd Keith Sellars, for Appellee Dallas County Municipality.

Devin Q. Alexander, Tatia R. Wilson, for Appellee City of Dallas Municipality.

Jamie King Harrison, James Roddy Tanner, for Appellee Teamsters Local Union 767.

John V. Jansonius, for Appellee United Parcel Service, Inc.

Deloris Phillips, Pro Se.

David L. Brenner, Robert Reginald Graves Jr., for Appellee Bankers Standard Insurance.

Chalon N. Clark, Francis H. LoCoco, for Appellee Raymond Forklift Trucks.

Christopher M. Losey, for Appellee Liberty Mutual Insurance.

Before Chief Justice Burns, Justice Goldstein, and Justice Smith

MEMORANDUM OPINION

Opinion by Chief Justice Burns

*1 Before the Court is appellant’s petition for permissive appeal. The petition fails to meet each requirement set forth in Texas Rule of Appellate Procedure 28.3(a), (e). Accordingly, we deny the petition and dismiss the appeal for want of jurisdiction. See id.; 42.3(a); Draper v. Guernsey, No. 03-15-00741-CV, 2016 WL 462763, at *2 (Tex. App.—Austin Feb. 3, 2016, pet. denied) (mem. op.) (dismissing appeal for want of jurisdiction because appellant failed to obtain trial court order granting permission to pursue permissive appeal of interlocutory order).

Court of Appeals of Texas, Dallas.

Phyllis LEE, Appellant

v.

GRAND PRAIRIE INDEPENDENT SCHOOL DISTRICT, Appellee

No. 05-22-00338-CV

|

Opinion Filed June 7, 2022

On Appeal from the 95th District Court, Dallas County, Texas, Trial Court Cause No. DC-21-18237

Attorneys & Firms

Phyllis Lee, Pro Se.

Timothy R. White Jr., for Appellee.

Before Justices Partida-Kipness, Pedersen, III, and Nowell

MEMORANDUM OPINION

Opinion by Justice Nowell

*1 In the underlying lawsuit, appellant seeks judicial review of the decision and order of the Texas Department of Insurance, Division of Workers’ Compensation. She appeals from the trial court’s March 25, 2022 interlocutory order granting appellee’s motion to transfer venue and transferring the case to Travis County. Because the interlocutory order did not appear to be subject to appeal, we questioned our jurisdiction and directed the parties to file letter briefs addressing the issue. The parties complied.

Generally, this Court has jurisdiction over final judgments and certain interlocutory orders as permitted by statute. See TEX. CIV. PRAC. & REM. CODE § 51.014(a) (listing appealable interlocutory orders); Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A trial court’s venue determination is not subject to an interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 15.064(a); TEX. R. CIV. P. 87(6).

In her letter brief, appellant asserts the trial court may permit an appeal of an order that is not otherwise appealable. See TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(d). Appellant is correct, but the record before us does not contain a written order permitting an appeal of the venue order. See TEX. R. CIV. P. 168. In the remainder of appellant’s letter brief, she addresses the merits of the trial court’s action transferring venue.

The trial court’s interlocutory venue order is not subject to interlocutory appeal. See TEX. CIV. PRAC. & REM. CODE § 15.064(a); TEX. R. CIV. P. 87(6). Because appellant has failed to demonstrate that we have jurisdiction, we dismiss the appeal. See TEX. R. APP. P. 42.3(a).

Court of Appeals of Texas, Dallas.

CORBY W. STEVENSON, Appellant

v.

TEXAS MUTUAL INSURANCE COMPANY, Appellee

No. 05-21-00464-CV

|

Opinion Filed May 13, 2022

On Appeal from the 354th Judicial District Court

Hunt County, Texas

Trial Court Cause No. 82551

Before Justices Myers, Osborne, and Nowell

Opinion by Justice Nowell

MEMORANDUM OPINION

ERIN A. NOWELL JUSTICE

Affirmed and Opinion Filed May 13, 2022

Corby W. Stevenson appeals the trial court’s order denying his motion to apportion settlement proceeds and granting Texas Mutual Insurance Company’s cross-motion for apportionment. In a single issue, Stevenson argues the trial court failed to properly apportion settlement proceeds pursuant to the Texas Labor Code. We reverse the trial court’s order in part and remand for the trial court to calculate Texas Mutual’s proportionate share of expenses.

FACTUAL BACKGROUND

Stevenson suffered a workplace injury in June 2013, which was exacerbated by negligent medical treatment he received on December 23, 2013. Texas Mutual, the workers’ compensation carrier for Stevenson’s employer, paid workers’ compensation benefits to and on behalf of Stevenson for his injuries. In January 2015, Stevenson sued his health care providers for negligence.

On April 29, 2016, Texas Mutual sent a letter to Stevenson’s counsel stating:

Texas Mutual Insurance Company is the workers’ compensation carrier for Corby Stevenson’s 06/30/2013 accident. Our investigation reveals that your client may be pursuing a claim for damages against the liable third party or parties.

Because of the accident, to date we have paid $253,665.95 in workers’ compensation benefits to and on behalf of your client. This amount, which is our subrogation lien, may continue to increase. Chapter 417 of the Texas Labor Code gives us a statutory subrogation right to step in the shoes of your client to obtain reimbursement of the benefits we have paid. This letter is notice of our subrogation lien and intent to subrogate.

In case of settlement or judgment, we have a legal right to receive reimbursement before your client receives any money.

On December 29, 2016, Texas Mutual sent another letter to Stevenson’s counsel stating:

To date, Texas Mutual Insurance Company (Texas Mutual) has paid $307,546.67 on behalf of Corby Stevenson. Attached is an itemized abstract detailing the medical and indemnity paid to date. The total amount of the workers’ compensation lien from June 30, 2013 through December 23, 2013 is $27,519.40.

Our lien is not final. Please contact me before settlement for an updated lien amount.

Texas Mutual sent similar letters to Stevenson’s counsel on July 21, 2017, stating Texas Mutual had paid $318,092.46 on Stevenson’s behalf to date and again on January 22, 2018 stating it had paid $318,551.33 to date. Each letter advised that the total amount of the workers’ compensation lien from June 30, 2013 through December 23, 2013 was $27,519.40.

Stevenson settled his medical negligence case on January 25, 2018, for $270,000.

On February 1, 2018, Texas Mutual sent another letter to Stevenson’s counsel stating:

In my previous correspondence with you, I indicated the total amount we had paid on the claim and also indicated the amounts paid prior to the cast being applied too tightly on December 23, 2013, which was the basis of the lawsuit you filed on behalf of Mr. Stevenson. My letters stated very clearly that the $27,519.40 was what we paid from the date of the original injury until December 23, 2013, which was the period before the cast was applied too tightly. As of today, the total paid is $318,551.33 less $27,519.40 = $291,031.93 which is the amount of our lien attributable to the medical malpractice.

Texas Mutual then filed its original petition in intervention to recover its “subrogation lien for medical and indemnity benefits of $318,551.33 paid to and on behalf of” Stevenson. In response, Stevenson filed a motion for apportionment and requested the trial court limit Texas Mutual’s recovery to $27,519.40 before deductions for attorney’s fees and expenses. Texas Mutual responded with its own motion for apportionment in which it proposed the apportionment of settlement funds could be proper pursuant to labor code section 417.003(a), which would reduce its recovery to pay attorney’s fees and expenses to Stevenson’s counsel.

Following a hearing, the trial court entered an order denying Stevenson’s motion for apportionment and granting Texas Mutual’s cross-motion for apportionment. The trial court found: Texas Mutual’s subrogation interest is $291,031.93; Texas Mutual is entitled to first-money recovery of its subrogation interest from Stevenson’s medical malpractice settlement; Texas Mutual’s subrogation interest exceeds the value of the medical malpractice settlement; Texas Mutual is entitled to recover $270,000 to satisfy its subrogation interest; and Stevenson’s counsel is entitled to receive no more than one-third of Texas Mutual’s subrogation recovery in attorney’s fees. Therefore, the trial court found: “Pursuant to Texas Labor Code 417.003(c), Intervenor Texas Mutual Insurance Company’s subrogation recovery out of the $270,000 settlement is: $270,000 less a maximum attorney fee of $90,000 = $180,000.” The trial court ordered Stevenson’s counsel to pay $180,000 from the settlement funds to Texas Mutual. This appeal followed.

LAW & ANALYSIS

In a single issue on appeal, Stevenson argues the trial court failed to properly apportion the settlement proceeds and also requests that Texas Mutual’s recovery be limited to no more than $27,519.40.

An employee may seek damages from a third party who is liable for an injury that is compensable under the labor code. See TEX. LAB. CODE ANN. § 417.001(a). When a benefit is claimed by an injured employee, the insurance carrier is subrogated to the rights of the injured employee. See id. § 417.001(b).

The Texas Supreme Court has repeatedly stated that an insurance carrier is entitled to recover all benefits paid to an injured worker out of the “first money” the worker recovers from a liable third party. See Exxon Mobile Corp. v. Ins. Co. of Am., 568 S.W.3d 650, 651 (Tex. 2019) (citing TEX. LAB. CODE ANN. §§ 417.001–.002). Considering sections 417.001 and 417.002 of the labor code, the supreme court recently reiterated that the insurance carrier has the right to “the first money a worker receives from a tortfeasor,” and “the employee has no right to any sums recovered from a third party until the carrier is reimbursed in full.” Id. at 655-56 (internal quotation marks and footnotes omitted); see also Tex. Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31, 35 (Tex. 2008) (“carrier gets the first money a worker receives from a tortfeasor”); Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 530 (Tex. 2002) (“For decades, the law has been that, under the Workers’ Compensation Act’s subrogation provision, the first money paid [to] or recovered by the employee, or his representatives, belongs to the compensation carrier paying the compensation, and until it is paid in full, the employee, or his representatives, have no right to any funds.”); Harris County, Tex. v. Knapp, 496 S.W.3d 871, 880 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

Applying the Texas Supreme Court’s authority, Texas Mutual is entitled to the first money Stevenson recovered in the medical malpractice action, and until Texas Mutual is paid in full, Stevenson has no right to the settlement money. In this case, the settlement amount ($270,000.00) does not exceed the amount of Texas Mutual’s subrogation interest as determined by the trial court ($291,031.93). Accordingly, as discussed below, Texas Mutual is entitled to the full amount of the settlement minus payment of attorney’s fees and expenses that Texas Mutual must pay to Stevenson’s counsel pursuant to section 417.003(a).1

Section 417.003(a) provides:

An insurance carrier whose interest is not actively represented by an attorney in a third-party action shall pay a fee to an attorney representing the claimant in the amount agreed on between the attorney and the insurance carrier. In the absence of an agreement, the court shall award to the attorney payable out of the insurance carrier’s recovery:

(1) a reasonable fee for recovery of the insurance carrier’s interest that may not exceed one-third of the insurance carrier’s recovery; and

(2) a proportionate share of expenses.

TEX. LAB. CODE ANN. § 417.003(a). The parties agree that Texas Mutual’s interest was not actively represented by an attorney in the medical malpractice action, and the record does not reflect that Texas Mutual and Stevenson’s attorney agreed on a fee. Accordingly, Texas Mutual must pay a reasonable fee to Stevenson’s attorney and a proportionate share of expenses. See id.

Stevenson’s counsel was entitled to recover a reasonable fee not to exceed one-third of Texas Mutual’s recovery. See id. § 417.003(a)(1). The trial court awarded Stevenson’s counsel a fee equal to one-third of Texas Mutual’s recovery ($90,000).2 We conclude this fee award was not in error. However, subsection (a)(2) requires that Texas Mutual also must pay a proportionate share of expenses from its recovery. See id. § 417.003(a)(2). The trial court erred when it failed to order Texas Mutual to do so.

Stevenson also argues that Texas Mutual is estopped from seeking to recover more than $27,519.40 of the settlement proceeds. Stevenson asserts that Texas Mutual consistently represented the amount of its subrogation lien to be $27,519.40, and “the settlement that was reached with the healthcare providers was based on that amount. Only after the case was settled did [Texas Mutual] come back, demanding subrogation well in excess of even the amount of the settlement.” We disagree.

Quasi-estoppel precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken. Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 864 (Tex. 2000); Jamison v. Allen, 377 S.W.3d 819, 823 (Tex. App.—Dallas 2012, no pet.). The principle applies when a party knowingly acts or conducts himself in a particular manner and then takes a position inconsistent with that act or conduct. Jamison, 377 S.W.3d at 823.

Texas Mutual’s written correspondence to Stevenson’s counsel consistently stated the total amount of the workers’ compensation lien from June 30, 2013 through December 23, 2013 was $27,519.40. Texas Mutual’s correspondence also consistently provided the total amount in workers’ compensation benefits that Texas Mutual had paid to and on Stevenson’s behalf; that amount was never less than $253,665.95, and each of the letters confirmed the lien was not final.

The undisputed facts show that the original workplace injury to Stevenson occurred on June 30, 2013, and the incidence of medical malpractice that exacerbated the injury occurred on December 23, 2013. Accordingly, Texas Mutual’s representation that “the total amount of the workers’ compensation lien from June 30, 2013 through December 23, 2013 is $27,519.40” only applied to the portion of the workers’ compensation that Texas Mutual paid before the medical malpractice event exacerbated the injury. Texas Mutual’s correspondence in no way indicated that $27,519.40 was the total amount of its subrogation interest. Rather, Texas Mutual consistently stated its subrogation interest exceeded $253,665.95 and was not final.

We conclude that, in seeking to recover the full amount of its subrogation interest, Texas Mutual did not assert a right inconsistent with a position previously taken and the trial court did not err by refusing to limit Texas Mutual’s recovery to $27,519.40 as Stevenson requested.

CONCLUSION

The trial court’s order denying Stevenson’s motion for apportionment and granting Texas Mutual’s cross motion for apportionment is reversed in part. We reverse the trial court’s order insofar as it incorrectly relies on Texas Labor Code section 417.003(c). We remand this case to the trial court to award a proportionate share of expenses payable to Stevenson’s counsel from Texas Mutual’s recovery pursuant to Texas Labor Code section 417.003(a). In all other respects, the trial court’s order denying Stevenson’s motion for apportionment and granting Texas Mutual’s cross motion for apportionment is affirmed.

Footnotes

1

Rather than apply section 417.003(a), the trial court erroneously applied section 417.003(c). Section 417.003(c) applies when “an attorney actively representing the insurance carrier’s interest actively participates in obtaining a recovery.” TEX. LAB. CODE. ANN. § 417.003(c). It is undisputed in this case that Texas Mutual did not participate in obtaining the medical malpractice settlement. Therefore, the trial court erred by applying subsection (c). See Morales v. Michelin N. Am., Inc., 351 S.W.3d 120, 122–23 (Tex. App.—San Antonio 2011, no pet.) (“Because Texas Mutual was not actively represented in Morales’s claims against the defendants he alleged were responsible for his injuries, section 417.003(a) is the applicable provision, and the trial court erred when it applied section 417.003(c) and failed to reduce Texas Mutual’s first money payment by the amount of its proportionate share of expenses.”).

Texas Mutual asserts the trial court could apply section 417.003(c) because Stevenson sought apportionment pursuant to that provision. However, the trial court denied Stevenson’s motion and granted Texas Mutual’s cross-motion for apportionment. Accordingly, the grounds on which Stevenson moved for apportionment are not at issue in this appeal; the grounds on which Texas Mutual moved are at issue, and Texas Mutual proposed a division pursuant to section 417.003(a). To the extent Texas Mutual argues the trial court could rely on Stevenson’s representations that section 417.003(c) was the proper provision under which to determine recovery of attorney’s fees and expenses, we consider this argument unavailing.

2

While reaching the correct result, the trial court incorrectly awarded the fees pursuant subsection (c) rather than pursuant to section 417.003(a)(1).

Court of Appeals of Texas, Dallas.

FLASHDANCER, INC., Appellant

v.

John FULCHER III, Appellee

No. 05-21-00070-CV

|

Opinion Filed May 4, 2022

On Appeal from the 193rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-18-11379

Attorneys & Firms

Anthony Hamilton Green, for Appellant.

A. Jared Aldinger, Hutton W. Sentell, Geoffrey E. Schorr, for Appellee.

Before Justices Molberg, Reichek, and Garcia

MEMORANDUM OPINION

Opinion by Justice Garcia

*1 This is a common law negligence case against an employer for breach of the duty of care owed to employees. Jack Fulcher, a bouncer for Flashdancer, was shot in the finger when another Flashdancer employee discharged a firearm. Flashdancer now challenges the trial court’s judgment awarding Fulcher damages on his negligence claim, arguing the evidence is insufficient to establish breach of the duty of care. Finding no reversible error, we affirm the trial court’s judgment.

I. BACKGROUND

Ashley Clark worked as a dancer for Flashdancer. Fulcher was employed as a bouncer.

Flashdancer’s policy requires that all persons, including employees, be searched for contraband before entering the premises. There are no exceptions to this policy because state law prohibits firearms on the premises of a nightclub.

On the night in question, Clark visited Flashdancer as a patron. She was greeted by a fellow employee, paid her cover charge, and stepped inside the business. Her purse was not checked for weapons or contraband.

A fight ensued between Clark and her boyfriend, who was also a patron. Fulcher and a coworker intervened. As Fulcher stood beside Clark, she began to run. Fulcher chased Clark, and as he tried to grab her, a gun Clark was holding suddenly discharged, striking Fulcher in the first joint of his index finger. Fulcher was not aware that Clark had a gun until he was shot.

Fulcher was transported to the hospital for medical treatment. His injuries were such that his right index finger ultimately required amputation.

Fulcher sued Flashdancer and others for negligence. At the time of trial, Flashdancer was the only defendant remaining in the suit. The court conducted a bench trial at which Fulcher was the only witness. Several exhibits were admitted into evidence by agreement.1

When the trial concluded, the court made findings of fact and conclusions of law and entered a final judgment awarding Fulcher $22,899.33 for medical expenses, $1,100 for lost earnings, and $22,899.33 for past and future pain, suffering, mental anguish, physical impairment, and disfigurement. Flashdancer appeals from that judgment.

II. ANALYSIS

Flashdancer argues the evidence is insufficient to establish that it breached the duty of care owed by an employer to an employee.2 We disagree.

*2 When conducting a legal sufficiency review of a finding on which the appellant did not bear the burden of proof at trial, we use the “no evidence” standard. “No evidence” points must, and may only, be sustained when the record discloses one of the following situations: (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; (d) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).

More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable and fair-minded people to differ in their conclusions. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). “Less than a scintilla of evidence exists when the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

A legal sufficiency challenge requires reviewing the record in the light most favorable to the judgment, crediting favorable evidence if a reasonable fact finder could and disregarding contrary evidence unless a reasonable fact finder could not. See City of Keller, 168 S.W.3d at 807. We indulge every reasonable inference in support of the judgment, and we may not substitute our opinions on credibility for those of the fact finder. See id. at 816–17, 822. The ultimate test for legal sufficiency is whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. Id. at 827.

In a bench trial, the trial court acts as a fact finder, and we accord its findings the same weight as a jury verdict. Thompson v. Smith, 483 S.W.3d 87, 93 (Tex. App.—Houston [1st Dist.] 2015, no pet.). Unchallenged findings of fact are binding on the parties and the appellate court. Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.—Dallas 2008, no pet.).

The elements of a negligence cause of action are a duty, a breach of that duty, and damages proximately caused by the breach of duty. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995); Werner v. Colwell, 909 S.W.2d 866, 868 (Tex. 1995). The existence of a legal duty is a question of law. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008).

The trial court found, inter alia, that Flashdancer was negligent by and through the actions and/or inactions of its employees because Clark was not searched and entered the premises with a firearm that was accidentally and recklessly discharged, injuring Fulcher. The trial court further found that Flashdancer was required to maintain the premises in a reasonably safe condition and Fulcher was injured due to unsafe conditions; specifically, Flashdancer’s employee’s failure to follow company policies and procedures. Fulcher’s testimony supports these findings.

Fulcher explained Flashdancer’s policy of checking bags and conducting pat down searches of patrons at the front door before they are allowed to enter the premises. There are no exceptions to the policy because firearms are forbidden on the premises under state law.

Recorded security footage was played for the court, and Fulcher identified Clark pulling up to the establishment and hugging the employee at the front door as she entered. Clark was not searched. Another segment of the recording showed Clark walking past the security officer who was smoking a cigarette. Again, Clark was not searched. Fulcher testified that it was not his job to conduct searches that night because he was working the floor, and searches were to be conducted by the person working the front door.

*3 Fulcher described the altercation Clark had with her boyfriend at the bar. When Fulcher chased Clark across the room, he did not see a gun in her hand. But she had a gun in her hand when he tried to grab her. The gun fell to the floor and discharged in the ensuing struggle. The gunshot hit the index finger on Fulcher’s right hand.

Fulcher’s status as an employee gave rise to Flashdancer’s duty to exercise ordinary care in providing a safe workplace. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993) (nonsubscriber to workers’ compensation owes duty of ordinary care to provide a safe workplace for its employees). Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). Flashdancer acknowledges this duty but insists that it acted as a reasonable employer and there was an intervening criminal act.3

Flashdancer also insists that as a bouncer in a club, Fulcher was aware of and assumed the risks of such employment. Non-subscribers, however, may not invoke the assumption of the risk defense. See TEX. LAB. CODE ANN. § 406.033 (a)(2). Flashdancer has not identified any evidence contrary to the trial court’s finding that it is a non-subscriber or otherwise explained why it might be entitled to rely on this defense. In addition, although an employer owes no duty to warn of hazards that are commonly known or already appreciated by the employee, liability cannot be avoided by merely alleging the hazards were known when the employer has created a work environment that requires an employee to perform tasks in an unsafe manner. See Elwood, 197 S.W.3d at 794. Thus, while Fulcher may have been aware of the hazards of being a bouncer is an adult entertainment venue, those risks did not include working in an environment with firearms on the premises. The evidence establishes that Flashdancer is responsible for the work environment that required Fulcher to perform his duties as a bouncer in an unsafe manner.

Because the evidence establishes that Flashdancer’s search policy was not followed, creating unsafe working conditions for Fulcher that resulted in his injury, the trial court did not err in concluding that Flashdancer breached the duty owed to Fulcher and that the breach proximately caused his injuries. See, e.g., LMC Complete Automotive, Inc. v. Burke, 229 S.W.3d 469, 476 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (employee’s negligence while acting in scope of employment constituted breach of employer’s duty to use ordinary care to provide a safe workplace); West Star Transp. Inc. v. Robison, 457 S.W.3d 178, 187 (Tex. App.—Amarillo 2015, pet. denied) (employer breached duty to provide safe workplace). Flashdancer’s sole issue is resolved against it.

The trial court’s judgment is affirmed.

Footnotes

1

These exhibits, which include medical records, security camera photographs, and four documents entitled “Texas Department of Insurance Division of Worker’s Compensation No Coverage Verification,” are not included in the reporter’s record but are not material to our analysis.

2

Although not raised as an issue, Flashdancer also states, without reference to evidence or citations to the record, that it was “not proven at trial that [Flashdancer] was a “non-subscribing employer.” Flashdancer discusses non-subscriber status in the context of a premises liability claim, but then acknowledges that an employee must prove all elements of a common law negligence claim to prevail against non-subscribing employers. This is not a premises liability case. See Austin v. Kroger Tex. L.P., 465 S.W.3d 193, 214, 216 (Tex. 2015) (distinguishing premises liability claims from other types of workplace negligence and noting that employer had a duty not to engage in negligent activities in addition to its premises liability duty). Our analysis here, as framed by the issue raised, is confined to whether the evidence supports a finding of common law negligence.

3

Flashdancer does not challenges the court’s causation findings. Moreover, when the intervening illegal act is the foreseeable result of negligence, it does not negate the continuing proximate causation and consequent liability of the initial actor. See Berly v. D&L Sec. Svcs, and Inv., Inc. 876 S.W.2d 179, 183 (Tex. App.—Dallas 1994, writ denied).

Court of Appeals of Texas, Dallas.

Deloris PHILLIPS, Appellant

v.

TEXAS DEPARTMENT OF INSURANCE DIVISION OF WORKERS’ COMPENSATION, Fleming Foods, Inc., Core-Mark Holding Co., the Raymond Corp., Cigna Insurance Co., Bankers Standard Insurance Co., Esis-Chubb Management Corp., Liberty Mutual Insurance Co., United Parcel Service, Inc., Teamsters Local Union 767, City of Dallas Municipality, Dallas County Muncipality, and Dallas Police Department, Appellees

No. 05-22-00120-CV

|

Opinion Filed April 19, 2022

On Appeal from the 101st Judicial District Court, Dallas County, Texas, Trial Court Cause No. DC-21-06299

Attorneys & Firms

Dennis M. McKinney, for Appellee Texas Department of Insurance-Division of Workers Compensation.

Deloris Phillips, Pro Se.

Francis H. LoCoco, Chalon N. Clark, for Appellee Raymond Forklift Trucks.

Christopher M. Losey, for Appellee Liberty Mutual Insurance.

Todd Keith Sellars, for Appellee Dallas County Municipality.

David L. Brenner, Robert Reginald Graves Jr., for Appellee Bankers Standard Insurance.

Shannon Brown Schmoyer, for Appellee United Parcel Service, Inc.

Jamie King Harrison, James Roddy Tanner, for Appellee Teamsters Local Union 767.

Stephanie Laird Tolson, for Appellee Cigna Health and Life Insurance Company.

Tatia Wilson, Devin Q. Alexander, for Appellee City of Dallas Municipality.

Before Chief Justice Burns, Justice Goldstein, and Justice Smith

MEMORANDUM OPINION

Opinion by Chief Justice Burns

*1 Appellant appeals from the trial court’s January 31, 2022 interlocutory order granting the Rule 91a motion to dismiss filed by The Raymond Corporation, one of numerous defendants. See TEX. R. CIV. P. 91a. Generally, this Court has jurisdiction only over final judgments and certain interlocutory orders as permitted by statute. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (listing appealable interlocutory orders). A final judgment is one that disposes of all parties and claims. See Lehmann, 39 S.W.3d at 195. Because the appealed order did not appear to be a final judgment or an appealable interlocutory order, we questioned our jurisdiction over the appeal and instructed the parties to file letter briefs addressing the issue.

In her letter briefs filed on April 1 and April 18, appellant fails to address the lack of a final judgment or appealable interlocutory order. Rather, appellant asserts, without explanation, that the reporter’s record1 will “factually validate” our jurisdiction over the appeal. Also, without explanation, appellant cites to this Court’s opinion in Dezoete v. Raymond Corp., No. 05-19-01301-CV, 2020 WL 7382302, at *1 (Tex. App.—Dallas Dec. 16, 2020, no pet.). Dezoete is not applicable because it involved an appeal from a final judgment over which we had jurisdiction.

The order appealed is interlocutory because it does not dispose of appellant’s claims against all parties. Appellant has not provided any authority demonstrating that the order is otherwise appealable and nothing before us reflects the reporter’s record would assist us. Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

Footnotes

1

We suspended the deadline for the reporter’s record pending determination of our jurisdiction over the appeal.

Court of Appeals of Texas, Dallas.

DELORIS PHILLIPS, Appellant

v.

TEXAS DEPARTMENT OF INSURANCE DIVISION OF WORKERS’ COMPENSATION, FLEMING COMPANIES, INC., BANKERS STANDARD, UNITED PARCEL SERVICE, INC., LIBERTY MUTUAL INSURANCE COMPANY, TEAMSTERS LOCAL UNION 767, AND ESIS, Appellees

No. 05-21-00498-CV

|

Opinion Filed August 31, 2021

On Appeal from the 101st Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-21-06299

Before Justices Osborne, Pedersen, III, and Nowell

Opinion by Justice Osborne

MEMORANDUM OPINION

LESLIE OSBORNE JUSTICE

DISMISS and Opinion Filed August 31, 2021

In her notice of appeal, appellant states that she is appealing from an order orally rendered denying her appointment of counsel. We questioned our jurisdiction over the appeal because, even assuming the trial court has signed an order, such an order is neither a final judgment nor an appealable interlocutory order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001) (generally appellate courts have jurisdiction only over appeals from final judgments and interlocutory orders permitted by statute); TEX. CIV. PRAC. & REM. CODE ANN. § 51.014(a) (listing appealable interlocutory orders).

As requested appellant filed a letter brief. She also filed an amended notice of appeal to additionally challenge the trial court’s denial of her motion for discovery. Neither an order denying a motion to appoint counsel nor a motion for discovery is an appealable interlocutory order that confers jurisdiction on the Court, and nothing in appellant’s letter brief demonstrates our jurisdiction. See Wilcox v. Wilcox, No. 05-09-01421-CV, 2010 WL 457434, at *1 (Tex. App.—Dallas Feb. 11, 2010, no pet.) (mem. op.) (order on motion to appoint counsel not appealable); See Sharma v. Vinmar Int’l, Ltd., 231 S.W.3d 405, 422 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (order denying discovery not appealable). Accordingly, we dismiss the appeal for want of jurisdiction. See TEX. R. APP. P. 42.3(a).

Court of Appeals of Texas, Dallas.

ANDRE W. WILLIAMS, SR., Appellant

v.

CITY OF RICHARDSON, SELF INSURED, Appellee

No. 05-20-00085-CV

|

Opinion Filed August 31, 2021

On Appeal from the 192nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-19-02050

Before Justices Osborne, Pedersen, III, and Nowell

Opinion by Justice Osborne

MEMORANDUM OPINION

LESLIE OSBORNE JUSTICE

Affirmed and Opinion Filed August 31, 2021

This is a worker’s compensation case. After the Texas Department of Insurance, Division of Workers’ Compensation (“Department”) ruled that appellant Andre W. Williams, Sr. “did not sustain a compensable injury on February 29, 2016,” and the Department’s Appeals Panel affirmed that ruling, Williams filed a petition for review in the trial court. The trial court rendered judgment for appellee City of Richardson, Williams’s employer, after a bench trial. In three issues, Williams challenges the trial court’s judgment. We affirm.

BACKGROUND

In his operative petition, Williams alleged he “sustained a compensable injury to the lower back” on February 29, 2016, “while performing duties with his employer, The City of Richardson.” He contended he informed his supervisor “that he was hurt, in pain and needed to go to his Doctor’s immediately.” He alleged that he then informed his supervisor that “he was out on Doctor’s request to rest his lower back and let the swelling go down.” He pleaded that he gave timely notice of his claim to the Department within a year of his injury.

Williams initiated his worker’s compensation claim by filing it in the Department in 2017. His claim proceeded to a contested case hearing before a Department administrative law judge in October 2018. The disputed issues presented for decision were:

1. Did the Claimant sustain a compensable injury on February 29, 2016? ...

2. Is [the City] relieved from liability under Texas Labor Code Section 409.002 because of the Claimant’s failure to timely notify his Employer pursuant to Section 409.001?

3. Is [the City] relieved from liability under Texas Labor Code Section 409.004 because of Claimant’s failure to timely file a claim for compensation with the Division within one year of the claimed injury as required by Texas Labor Code Section 409.003?

After an evidentiary hearing, the Department ruled in favor of Williams on the third issue, but concluded that “Claimant did not sustain a compensable injury on February 29, 2016,” and that the City “is relieved from liability under Texas Labor Code Section 409.002 because of Claimant’s failure to timely notify his Employer pursuant to Section 409.001.” The Department issued its “Decision and Order” with these rulings on October 25, 2018 (“Original Order”). The Original Order was signed by the Administrative Law Judge (“ALJ”) who conducted the contested case hearing. It contained a “Discussion” section in which the ALJ noted:

• Williams’s testimony that he “sustained a specific event work injury on February 29, 2016 as a result of riding as a passenger in a front loader for a few hours, because he could not stretch out his legs” was “inconsistent with a lot of the evidence, including evidence coming from Claimant [Williams].”

• Williams’s medical records did not reflect that he had been injured at work on February 29, 2016. In particular, records from a lumbar MRI on the alleged date of injury showed “Bilateral leg numbness for three weeks. No acute injury,” and records from three visits to Dr. Gibbons for back pain in August and September 2016 contain Dr. Gibbons’s note that “Patient firmly states that his low back pain is not the product of a work-related injury.”

• “Claimant’s credibility was called into question” by certain documents he offered as evidence containing “obvious alterations,” including his termination notice from the City.

Williams sought review by the Department’s appeals panel. The appeals panel subsequently notified Williams that the Original Order had become final. See TEX. LAB. CODE § 410.204(c) (appeals panel decisions).

Williams then filed a petition for judicial review of the Department’s decision in the trial court. In his petition, Williams complained that the Original Order contained errors. In response, the City filed a “Motion to Correct Clerical Error and for Judgment Nunc Pro Tunc” in the Department, seeking correction of “six clerical errors”—all dates—in the Original Order.1 The City filed a copy of this motion in the trial court. The Department signed an order granting the City’s motion on September 5, 2019, ruling that the original Decision and Order was effective October 25, 2018—the date of the Original Order—“as herein modified.” The City filed the Department’s “Order on Motion to Correct Clerical Errors” in the trial court on September 9, 2019, and the case proceeded to trial before the court on October 14, 2019.

Williams, representing himself, contended that he suffered a back injury on February 29, 2016, from “being forced to sit in an uncomfortable position for an extended period of time.” Jose Morino, the City’s human resources director, testified that Williams never reported a work-related injury to the City. He explained that the City learned of the claim after notification from the Department over a year later. Morino testified that Williams received a poor performance review immediately before he stopped coming to work in March 2016, and Williams’s employment was terminated in October 2016.

Williams and Morino were the only witnesses at trial. The relevant facts were vigorously contested, and each party alleged the other had submitted altered medical records and other documents to the Department or to the court.

The trial court rendered judgment for the City on October 21, 2019. On November 11, 2019, Williams filed a request for findings of fact and conclusions of law. The trial court responded by letter inviting the parties to submit proposed findings of fact and conclusions of law. Neither party responded or filed a notice of past due findings and conclusions, and the trial court did not make any. Williams filed a motion for new trial that the trial court denied by order of December 19, 2018. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

In the trial court, Williams sought judicial review of the Department’s appeals panel’s decision. Labor code section 410.301 governs judicial review of administrative-level workers’ compensation decisions regarding compensability or benefits eligibility. See TEX. LAB. CODE § 410.301; Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007). The issues decided by the Department’s appeals panel are tried to the court or to a jury, and the appealing party bears the burden of proof by a preponderance of the evidence. TEX. LAB. CODE § 410.303. The records of a contested case hearing are admissible “in accordance with the Texas Rules of Evidence,” and trial “is limited to issues decided by the appeals panel and on which judicial review is sought.” Id. § 410.302. “However, the fact finder does not simply review the appeals panel decision for reasonableness, but decides the issues independently based on a preponderance of the evidence.” Sec. Nat’l Ins. Co. v. Farmer, 89 S.W.3d 197, 200 (Tex. App.—Fort Worth 2002, pet. denied). All issues other than compensability or benefits eligibility are reviewed under the substantial evidence rule. TEX. LAB. CODE § 410.255(b); Sec. Nat’l Ins. Co., 89 S.W.3d at 200–01. Under the substantial evidence rule, the trial court is concerned only with the reasonableness of the agency’s order, not its correctness. Sec. Nat’l Ins. Co., 89 S.W.3d at 200–01.

Williams now appeals the trial court’s judgment affirming the appeals panel’s decision. In three issues, Williams contends the trial court erred by rendering judgment for the City.

In his first issue, Williams contends the trial court erred by denying his motion for new trial. He argues that a new trial was warranted because (1) the City presented new medical evidence at trial that Williams had insufficient time to review, (2) the trial court “failed to address spoliation of evidence,” and (3) the trial court should have restricted its review to the original administrative record, not the later-corrected record. We review the denial of a motion for new trial for abuse of discretion. Dugan v. Compass Bank, 129 S.W.3d 579, 582 (Tex. App.—Dallas 2003, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner, without reference to any guiding rules or principles. Id.

In his second issue, Williams contends the trial court erred by failing to file findings of fact and conclusions of law after he made a timely request. As we discuss below, Williams waived his right to complain of the trial court’s failure to file findings. Under these circumstances, we must imply all necessary findings to support the trial court’s judgment. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017).

In his third issue, Williams challenges the trial court’s evidentiary rulings. The Texas Rules of Evidence apply to the trial court’s review of the Department’s rulings. See TEX. LAB. CODE § 410.306. We review the trial court’s rulings on admission or exclusion of evidence for abuse of discretion. Williams v. Cty. of Dallas, 194 S.W.3d 29, 31–32 (Tex. App.—Dallas 2006, pet. denied).

In a subpart of his third issue, Williams argues that had the trial court “restrict[ed] the case to the scope of compensability” under the labor code, the evidence showed (1) he was injured on February 29, 2016, in the course and scope of his employment, (2) his medical records supported his claim, but the City tampered with the records, and (3) he gave adequate and timely notice to the City of his work-related injury. We construe this complaint as a challenge to the sufficiency of the evidence. Where, as here, there is a reporter’s record, the trial court’s implied findings may be challenged for legal and factual sufficiency in the same manner as challenges to express findings of fact or jury findings. Shields Ltd. P’ship, 526 S.W.3d at 480.

In evaluating the legal sufficiency of the evidence to support a finding, we credit favorable evidence if a reasonable factfinder could, and disregard contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally sufficient if it is more than a “scintilla” of evidence on which a reasonable factfinder could find the fact to be true. Crosstex N. Tex. Pipeline, L.P. v. Gardiner, 505 S.W.3d 580, 613 (Tex. 2016).

In reviewing the factual sufficiency of the evidence, we review all the evidence and will set aside the finding 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. See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

In a bench trial, the trial court is the sole judge of the credibility of the witnesses and may believe one witness over another and resolve any conflicts or inconsistencies in the testimony. Shaw v. County of Dallas, 251 S.W.3d 165, 169 (Tex. App.—Dallas 2008, pet. denied).

DISCUSSION

1. Scope of the trial court’s review

In all three of his issues, Williams complains that the trial court erred by admitting and considering evidence outside the scope of the parties’ rule 11 agreement. See TEX. R. CIV. P. 11 (agreements between attorneys or parties in pending suits). Williams contends that the trial court “erred by not restricting the case to regard compensability under Texas Labor Code § 409.001.” He argues the evidence he offered showed he suffered a compensable injury in the course and scope of his employment, and in contrast, the City did not “address compensability” but “instead, wast[ed] the majority of any proceedings time with fabricated matters” that Williams was required “to refute in order to place the proceedings[’] focus back on course.” And he specifically complains that the trial court should not have considered the Department’s corrected order. We disagree that the trial court’s review exceeded the proper scope.

The parties attempted to reach agreement regarding “the scope of what the live issues are in this case,” as the trial court explained at a pretrial hearing. The City initially proposed that “the scope of this lawsuit will be limited to the judicial review of the Plaintiff’s Worker’s Compensation claim against the City of Richardson, self-insured. We’d also like an agreement as to the admissibility of the records from the administrative hearing.”

Williams did not agree to this proposal. Addressing the City’s counsel, the trial court stated, “I’m not going to make this man [Williams] agree to anything.” The court continued, “You [the City] can certainly present everything you want to present and I will rule accordingly.” The court summarized the discussion as follows: “THE COURT: Here’s what we are agreeing to: Nothing. Except we’re agreeing that the review of this Court is a review of the judicial record ... as it stands or as it’s argued according to the law as it would apply to this case.”

The trial court’s statement correctly reflected the scope of the trial court’s review under the labor code. See TEX. LAB. CODE §§ 410.301–.304. The parties agreed to “[n]othing” that deviated from these standards, and the trial court expressly stated its review of the Department’s rulings would be “according to the law as it would apply to this case.” As the trial court noted, Williams was not required to agree in advance to the admissibility of any evidence, and he expressly declined to do so. As a consequence, rulings on the relevancy and admissibility of evidence would be made at trial and were within the trial court’s sound discretion. See Williams, 194 S.W.3d at 31–32; see also TEX. R. EVID. 401 (evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action”); TEX. LAB. CODE § 410.306(a) (in judicial review of appeals panel decision, “[e]vidence shall be adduced as in other civil trials”).

We discuss Williams’s complaints about the trial court’s rulings on specific evidence in our consideration of Williams’s third issue, but decide his broader complaint about the scope of the proceedings against him.

2. Motion for new trial

In his first issue, Williams argues the trial court erred by denying his motion for new trial because (1) the City presented new medical evidence “just barely before trial ending” that he had no time to review, and (2) he discovered “spoliation of evidence” by the City during trial.2 Throughout trial, each party asserted that the other had falsified copies of Williams’s medical and employment records to either show or remove any notations that Williams’s injury was work-related. On the second day of trial, the City offered its Exhibit 9, a copy of Williams’s medical records that had been produced in discovery. The City sought the records’ admission into evidence in response to Williams’s contentions that certain of his medical records had been altered. Williams’s only objection to Exhibit 9’s admission at trial was that it was missing communications showing the City violated federal privacy law by obtaining certain records from Dr. Acosta. The trial court overruled Williams’s objection and admitted Exhibit 9 into evidence.

In his motion for new trial, Williams argued that he objected to the records’ admission because “there was no continuing medical for his back injury, as [he] has not seen a doctor since October 2016 for this issue.” He contended a new trial was necessary because (1) he “was unaware of the evidence and had no notice of its existence before it was presented in Court”; (2) the evidence “would likely cause a different result in a new trial” because Williams “established inconsistencies in statements and medical treatment documentation by his treating physicians at the time,” and “[t]hese inconsistencies become pertinent in determining cause of injury and if a compensable injury was sustained”; and (3) with admission of the records, the scope of the trial would have been broadened so that Williams could have offered additional evidence about his medical treatment and his employment.

A party seeking a new trial on grounds of newly-discovered evidence must demonstrate to the trial court that (1) admissible, relevant evidence has come to its knowledge since the trial, (2) its failure to discover the evidence sooner was not due to lack of diligence, (3) the evidence is not cumulative or to be used for impeachment, and (4) the evidence is so material it would probably produce a different result if a new trial were granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); New Amsterdam Cas. Co. v. Jordan, 359 S.W.2d 864, 866 (Tex. 1962).

Williams did not explain how his past medical records had come to his knowledge only after the trial or how the evidence was not cumulative or to be used for impeachment. See Waffle House, Inc., 313 S.W.3d at 813; New Amsterdam Cas. Co., 359 S.W.2d at 866. To the contrary, his motion indicates he sought a new trial to challenge the credibility of the City’s evidence and “establish[ ] inconsistencies.” See Watts v. Watts, 396 S.W.3d 19, 23 (Tex. App.—San Antonio 2012, no pet.) (trial court did not abuse its discretion by denial of motion for new trial that “asserted only that the newly discovered evidence was material in assessing [a party’s] credibility”); Cornelison v. Aggregate Haulers, Inc., 777 S.W.2d 542, 547 (Tex. App.—Fort Worth 1989, writ denied) (“the alleged newly-discovered evidence would only have gone to the impeachment of the witness who testified, and therefore did not establish sufficient grounds for motion for new trial based on newly-discovered evidence”). In addition, Williams’s motion for new trial did not inform the trial court of any specific new information in Exhibit 9 that he had not already challenged. Finally, because Williams did not submit an affidavit swearing to facts supporting his request for a new trial, the trial court did not abuse its discretion by denying his motion on that basis. See Vodicka v. N. Am. Title Co., No. 05-13-00126-CV, 2014 WL 348530, at *4 (Tex. App.—Dallas Jan. 30, 2014, no pet.) (mem. op.).

Williams also contends the trial court erred by denying his motion for new trial because the trial court “failed to address spoliation of evidence after Williams provided concern and proof before the court.” As we have noted, however, each party alleged the other had submitted altered records to the trial court, and the trial court was the sole judge of the parties’ credibility on this issue. See Shaw, 251 S.W.3d at 169.

We conclude the trial court did not abuse its discretion by denying Williams’s motion for new trial. See Dugan, 129 S.W.3d at 582. We decide Williams’s first issue against him.

3. Request for findings

Williams’s second issue challenges the trial court’s failure to file findings of fact and conclusions of law. After a bench trial, a party may request that the trial court issue separate written findings of fact and conclusions of law. TEX. R. CIV. P. 296. The party must file its request within twenty days after the signing of the judgment. Id. If the trial court does not file its findings of fact and conclusions of law within twenty days after the party’s timely request, then the party must file a “Notice of Past Due Findings of Fact and Conclusions of Law” within thirty days of its original request. TEX. R. CIV. P. 297. Otherwise, the party waives its appellate complaint of the trial court’s failure to file findings of fact and conclusions of law. Jimenez v. McGeary, 542 S.W.3d 810, 812 (Tex. App.—Fort Worth 2018, pet. denied); see also Las Vegas Pecan & Cattle Co., Inc. v. Zavala Cty., 682 S.W.2d 254, 255–56 (Tex. 1984) (applying former procedural rules).

The trial court rendered judgment on October 21, 2019. Williams timely filed his request for findings of fact and conclusions of law on November 11, 2019. See TEX. R. CIV. P. 296. Thus, the trial court’s findings of fact and conclusions of law were due twenty days later, on December 1, 2019. See TEX. R. CIV. P. 297. After the trial court did not issue them, Williams’s notice of past due findings of fact and conclusions of law was due on December 11, 2019, thirty days after the date of his original request. See id.

Williams argues that his post-judgment request on November 11, 2019, served as a notice of past due findings because before trial, he filed proposed findings. On November 11, 2019, however, findings were not “past due,” nor did Williams contend they were. Williams’s November 11, 2019 filing requested the court to “state separately, in writing” and “file such findings of fact and conclusions of law with the clerk of the said Court so that they become a part of the record of said cause.” Although certain prematurely-filed requests may be deemed timely, see TEX. R. CIV. P. 306c, this Court has concluded that “rule 306c does not include a prematurely filed notice of past due findings of fact and conclusions of law.” Nisby v. Dentsply Int’l, Inc., No. 05-14-00814-CV, 2015 WL 2196627, at *2 (Tex. App.—Dallas May 11, 2015, no pet.) (mem. op.). We explained, “[i]f a notice of past due findings were allowed to be prematurely filed, it would defeat the purpose of reminding the trial court that it has been requested to file findings and has not done so by the time prescribed by the rules of procedure.” Id.; see also Burley v. Burley, No. 02-16-00119-CV, 2017 WL 4542854, at *2 (Tex. App.—Fort Worth Oct. 12, 2017, no pet.) (mem. op.) (collecting cases for same proposition).

Because Williams did not file a notice of past due findings and conclusions, he has waived error as to the absence of findings of fact and conclusions of law. See TEX. R. CIV. P. 297; S.L. v. S.L., No. 02-19-00017-CV, 2020 WL 4360448, at *6 (Tex. App.—Fort Worth July 30, 2020, no pet.) (mem. op.); Bank of Am., N.A. v. Groff, No. 14-19-00726-CV, 2021 WL 98559, at *2 (Tex. App.—Houston [14th Dist.] Jan. 12, 2021, no pet.) (mem. op.).We decide Williams’s second issue against him.

4. Admission of evidence

In his third issue, Williams contends the trial court erred by admitting the Department’s corrected opinion and order into evidence. He also complains the trial court erred by admitting evidence regarding Williams’s job performance and evidence regarding a “fabricated police report.” We conclude the trial court did not abuse its discretion in these evidentiary rulings.

First, as we have explained, the corrected opinion and order changed two incorrect dates in six places in the “Discussion” section of the Original Order. In four places, the date of injury was incorrectly stated as “September 29, 2016,” and in two places, the date of a performance review was stated as “March 22, 2016” rather than “March 2, 2016.” The “Findings of Fact” section, however, contained the correct date of the alleged injury, February 29, 2016. Conclusion of Law number three, “Claimant did not sustain a compensable injury on February 29, 2016,” also contained the correct date. February 29, 2016, was the dispositive date for purposes of Williams’s claim. Further, the record reflects that the correct dates were supported by evidence admitted in the original record before the hearings examiner. Equally important, the trial court was not bound by the Original Order, was aware of the errors, and could make its own credibility determination accordingly. See Tex. Dep’t of Ins., Workers’ Comp. Div. v. De Los Santos, 446 S.W.3d 800, 806 (Tex. App.—San Antonio 2014, no pet.) (“When a court is the trier of fact, it is to consider the decision of the Divison’s Appeals Panel.... However, the court is not required to accord the Division’s decision any particular weight.”) (citing TEX. LAB. CODE § 410.304(b)). For these reasons, we conclude that the trial court did not abuse its discretion by admitting the Department’s “Order on Motion to Correct Clerical Errors” into evidence. See Williams, 194 S.W.3d at 31–32.

Next, we conclude the trial court did not err in its rulings regarding evidence of Williams’s job performance. In fact, in the second record excerpt quoted in Williams’s brief, the trial court sustained his objections to this testimony after confirming that Williams was “not making any claims for retaliation in [his] dismissal.” In the first excerpt, the trial court overruled Williams’s objection to testimony about his request for a GPS rather than memorizing his route. In response to Williams’s objection, the City explained the evidence supported its contention that Williams filed his worker’s compensation claim only after he had been terminated for issues relating to his job performance. We conclude it was within the trial court’s discretion to admit the evidence. See Williams, 194 S.W.3d at 32 (court of appeals will uphold trial court’s ruling on admission of evidence “if there is any legitimate basis for the ruling”).

Last, we conclude the trial court did not err by any rulings relating to the allegedly “fabricated police report” offered by the City and a corresponding video offered by Williams. At the outset of trial, the trial court admitted the entire administrative record into evidence. The police report was part of that record, so the court overruled Williams’s objection to it. The trial court also permitted Williams to cross-examine Moreno on the subject and to play the corresponding video for the court. Although Williams complains that the trial court “showed a lack of interest[ ]” in the video, he does not explain how the trial court’s rulings were an abuse of discretion. See Williams, 194 S.W.3d at 31–32. We decide the portion of Williams’s third issue challenging the trial court’s evidentiary rulings against him.

5. Sufficiency of the evidence

In a subpart of his third issue, Williams argues that he met his burden to prove he was injured in the course and scope of his employment on February 29, 2016, citing evidence that (1) he was examined by a physician on that date, (2) he received an MRI and X-rays of his lower back area, inconsistent with the City’s contention that he visited the doctor for hypertension on that date, (3) the City tampered with his medical records, and (4) his employment was a “substantial factor” in, and therefore a producing cause of, his injury, supported by medical records showing he reported “sitting in a tight seat at work,” (5) the City attempted to mislead the court by offering photos showing a different type of truck than the one in which he was injured, (6) he timely gave sufficient notice of his injury to his direct supervisor, and (7) the City fabricated evidence of problems with his job performance.

The City, however, also offered evidence relevant to each of these contentions. Morino testified that Williams told him his injury was not work-related; Williams’s supervisor denied that Williams notified him that he had been injured at work on February 29, 2016; Williams had continuing back problems from an earlier injury; Williams altered his medical records; Williams’s true reason for not returning to work arose from problems with his job performance, not his injury; and the City did not receive information from either Williams or any other source that Williams had suffered a work-related injury on February 29, 2016, until May 2017, when the Department notified the City that Williams had submitted a claim for compensation to the Department.

The trial court heard all of the evidence from Williams and from the City and was the sole judge of its credibility. See Shaw, 251 S.W.3d at 169. “When there is conflicting evidence, it is the province of the factfinder to resolve such conflicts.” Yazdani-Beioky v. Sharifan, 550 S.W.3d 808, 821 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (citing City of Keller, 168 S.W.3d at 820). After reviewing all the evidence, we conclude (1) there is more than a scintilla of evidence supporting the trial court’s implied findings, and (2) the trial court’s implied findings are not so against the great weight and preponderance of the evidence as to be clearly wrong or unjust. See Crosstex N. Tex. Pipeline, L.P., 505 S.W.3d at 613; Dow Chem. Co. 46 S.W.3d at 242; Cain, 709 S.W.2d at 176.

We decide the remainder of Williams’s third issue against him.

CONCLUSION

The trial court’s judgment is affirmed.

Footnotes

1

In four places, the Original Order recited the date of the alleged injury as September 29, 2016, not February 29, 2016. In two places, the Original Order recited a date of March 22, 2016, rather than March 2, 2016, as the date when the City advised Williams “that he needed to significantly improve his job performance.” The City attached evidence admitted at the contested case hearing showing the correct dates.

2

Williams also argues that the trial court should have considered only the Original Order, not the amended order. We consider this complaint in our discussion of Williams’s third issue.

Court of Appeals of Texas, Dallas.

GREAT DIVIDE INSURANCE COMPANY, Appellant

v.

ALCUS RESHOD FORTENBERRY, Appellee

No. 05-19-01541-CV

|

Opinion Filed July 26, 2021

On Appeal from the 134th Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-18-06953

On Appeal from the 134th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-18-06953.

Before Justices Schenck, Reichek, and Carlyle

Opinion by Justice Schenck

MEMORANDUM OPINION

DAVID J. SCHENCK JUSTICE

REVERSE and REMAND and Opinion Filed July 26, 2021

This appeal arises from a workers’ compensation judicial review proceeding in which Alcus Reshod Fortenberry sought to set aside an adverse decision of the Texas Department of Insurance, Division of Workers’ Compensation’s (the “DWC”) appeals panel adopting the hearing officer’s earlier denial of Fortenberry’s claim. Following a jury trial, the trial court set aside the DWC appeals panel’s decision and entered a judgment awarding Fortenberry temporary income benefits.

Great Divide Insurance Company (“Great Divide”), the workers’ compensation carrier, appeals the trial court’s judgment, urging, in its first issue, the trial court erred in denying its motion to transfer venue from Dallas County to Travis County. Great Divide’s remaining issues relate to the jury’s findings, the sufficiency of the evidence, the damages awarded, and the trial court’s rulings on certain evidentiary objections.

We conclude Fortenberry failed to show venue was proper in Dallas County and that there is no probative evidence in the record to show venue was proper in Travis County. Because neither party made the necessary venue showing, we reverse the trial court’s judgment and remand the case to the trial court to conduct further proceedings on the issue of venue.1 Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

BACKGROUND

On May 14, 2015, after graduating from Texas Tech University, Fortenberry entered into an NFL Player Contract with the Dallas Cowboys to become an offensive lineman for the football team. While the term of the contract was for three football seasons, the contract contained various early termination provisions.

On August 2, 2015, Fortenberry sustained a work-related injury to his knee while practicing at the Dallas Cowboys’ training camp in Oxnard, California. On August 5, Fortenberry was placed on injured reserve with an estimated recovery period of nine to twelve months. On May 9, 2016, the Dallas Cowboys terminated Fortenberry for failing to establish or maintain excellent physical condition to the satisfaction of the team’s physician and because his skill or performance had been unsatisfactory as compared with that of other players. Pursuant to the terms of the NFL Player Contract, Fortenberry received compensation for the entire 2015 season, and “injury protection” payments for the 2016 and 2017 seasons.

Fortenberry filed a claim for workers’ compensation benefits. That claim was denied, and Fortenberry filed a dispute with the DWC and requested a Benefit Review Conference, followed by a Contested Case Hearing (“CCH”). An Administrative Law Judge (“ALJ”) conducted the CCH and later entered her decision and order finding Fortenberry did not have a compensable disability under the Workers’ Compensation Act. An appeals panel adopted the ALJ’s decision.

Fortenberry filed suit for judicial review of the DWC’s decision in Dallas County, Texas alleging, in part, that he “was a resident of Dallas County, Texas at the time of his injury,” and that “[u]nder § 410.252 Texas Labor Code, Dallas County is the proper venue for this case.”2 On July 2, 2018, Great Divide filed a motion to transfer venue, objecting to venue in Dallas County and asserting Fortenberry was a resident of Tylertown, Mississippi, and not Dallas County, at the time of his injury; that Great Divide does not have an office, agent or representative in Dallas County; and that venue is proper in Travis County because Great Divide provides workers’ compensation insurance coverage in Texas and has a representative in Austin, Texas, that acts as its agent before the DWC.3

In response to Great Divide’s motion to transfer venue, Fortenberry presented his affidavit stating, “[a]t the time of my injury, I lived and resided at 950 West Walnut Hill Lane, Irving, TX 75038 in Dallas County, Texas.” He further noted that “[a]fter training camp, I moved to 2304 N. Washington, Apt. 405, Dallas, Texas 75204-3798” and resided there since, and pointed to his NFL Player Contract with the Dallas Cowboys that contained an addendum by which he agreed, with respect to workers’ compensation claims, “venue is proper in Dallas County, Texas and such venue shall be exclusive.”

In reply, Great Divide established that 950 West Walnut Hill Lane is an address for a Marriot Residence Inn and that the law firm of Burns Anderson Jury and Brenner, LLP, located in Travis County, is Great Divide’s statutorily designated representative to act as agent to receive notices from the DWC and all correspondence and filings with the DWC regarding Fortenberry’s workers’ compensation claim were filed by the law firm. In addition, Great Divide, through the affidavit of a custodian of records of the Dallas Cowboys, established Fortenberry was in Oxnard, California, on the day he sustained his injury; the Dallas Cowboys “provided players, who did not have a permanent residence in Dallas, with hotel accommodations in August of 2015”; “Fortenberry was among the players who was provided this accommodation”; and the Dallas Cowboys “paid for [ ] Fortenberry to stay at a hotel on a temporary basis.” Great Divide further presented a player information sheet and a 2015 W-2 form that identified Fortenberry’s address as 71 Joe Bullock Rd., Tylertown, MS.

The trial court denied Great Divide’s motion to transfer venue, and the case proceeded to a jury trial. The jury found Fortenberry suffered a compensable disability. The trial court entered a final judgment awarding Fortenberry temporary income benefits. This appeal followed.

DISCUSSION

In its first issue, Great Divide urges the trial court erred in denying its motion to transfer venue because venue was not proper in Dallas County and was proper in Travis County.

I. Burdens and Standard of Review

A plaintiff’s choice of venue stands unless challenged by a proper motion to transfer venue. In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999). Once challenged, the plaintiff has the burden to present prima facie proof that venue is maintainable in the county of suit. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999); see also TEX. R. CIV. P. 87(2)(a), 3(a). A plaintiff satisfies this burden by properly pleading the venue facts and supporting them with an affidavit and duly proved attachments that fully and specifically set forth the facts supporting such pleading. TEX. R. CIV. P. 87.3(a). Venue is determined by facts existing at the time the basis for suit accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 15.006. If the plaintiff fails to discharge its burden, the right to choose a proper venue passes to the defendant, who must then prove that venue is proper in the defendant’s chosen county. TEX. R. CIV. P. 87(3)(a); Ford Motor Co. v. Johnson, 473 S.W.3d 925, 928 (Tex. App.—Dallas 2015, pet. denied).

In an appeal from a trial on the merits, the standard of review we apply to a trial court’s venue decision is mandated by section 15.064(b) of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(b); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993). Section 15.064(b) requires that we consider the entire record, including the trial on the merits, to determine whether venue was or was not proper in the county of suit. CIV. PRAC. & REM. § 15.064(b). If there is no probative evidence to show venue was proper in the county of suit, we must then determine whether there is any probative evidence in the record to show venue was proper in the county to which transfer was sought. Ruiz, 868 S.W.2d at 758. If there is any probative evidence to show venue was proper in that county, we remand with instructions to the trial court to transfer to that county. Id. If there is no probative evidence to show that venue was proper in either the county of suit or the county to which transfer was sought, we must remand to the trial court to conduct further proceedings on the issue of venue. Id.; Ken-Do Contracting, L.P. v. F.A. Brown’s Construction, L.L.C., No. 05-16-00373-CV, 2017 WL 3381105, at *2, 4 (Tex. App.—Dallas Aug. 7, 2017, pet. denied) (mem. op.).

The Texas Workers’ Compensation Act includes a mandatory venue provision requiring that a suit for judicial review of an appeals panel decision be filed in the county where the employee resided at the time of the injury. TEX. LAB. CODE ANN. § 410.252(b)(1); Campos v. Tex. Prop. & Cas. Ins. Guar. Ass’n, 282 S.W.3d 226, 230 (Tex. App.—Austin 2009, no pet.); see also CIV. PRAC. & REM. § 15.016 (“An action governed by any other statute prescribing mandatory venue shall be brought in the county required by that statute”).

II. Whether There Is Prima Facie Proof Venue Was Proper in Dallas County

Great Divide argues that Fortenberry’s assertion as to the location of his residence at the time of his injury is conclusory and thus is not probative evidence of his residency. Affidavits regarding venue must be made on personal knowledge, shall set forth specific facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify. TEX. R. CIV. P. 87(3)(a).

Fortenberry’s conclusion that he was a resident of the Residence Inn in Dallas County does not qualify as prima facie proof because it is unsupported by facts showing that he maintained that residence in Dallas County on the date of his injury in California. See TEX. R. CIV. P. 87.3(a) (“Prima facie proof is made when the venue facts are properly pleaded and an affidavit, and any duly proved attachments to the affidavit, are filed fully and specifically setting forth the facts supporting such pleadings.”); see also A.H. Belo Corp. v. Blanton, 129 S.W.2d 619, 622–23 (Tex. 1939) (holding allegation that plaintiff resided in county where suit was filed at the time claim accrued was legal conclusion); Republic Bankers Life Ins. Co. v. McCool, 441 S.W.2d 314, 315–16 (Tex. App.—Tyler 1969, no writ) (concluding venue affidavit statement that plaintiffs were “residents of Hopkins County” when cause of action accrued was legal conclusion unsupported by facts); see also Lenoir v. Marino, 469 S.W.3d 669, 686–87 (Tex. App.—Houston [1st Dist.] 2015) (op. on reh’g), aff’d, 526 S.W.3d 403 (Tex. 2017). (“[L]ogical conclusions are not improperly conclusory if they are based on underlying facts stated in the affidavit or its attachments.”); 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.”).

Moreover, Fortenberry failed to present prima facie proof to satisfy the residency requirements for venue purposes. Those requirements are (1) a fixed place of abode within the possession of the party, (2) occupied or intended to be occupied consistently over a substantial period of time, and (3) which is permanent rather than temporary. Snyder v. Pitts, 241 S.W.2d 136, 140 (Tex. 1951).4

Under the first element, the party must have some right of possession and not be a mere visitor. Id. The plain meaning of possession includes an element of control or dominion over the property, while access is a broader term that confers the mere opportunity or ability to enter. See Tex. Ethics Comm’n v. Sullivan, No. 02-15-00103-CV, 2015 WL 6759306, at *7 (Tex. App.—Fort Worth Nov. 5, 2015, pet. denied) (mem. op.) (citing Access & Possession, BLACK’S LAW DICTIONARY (10th ed. 2014)); see generally Zanchi v. Lance, 408 S.W.3d 373, 378 (Tex. 2013) (considering dictionary definitions in interpreting undefined, statutory term). The right of access does not equate to a right of possession sufficient to raise prima facie proof of a residence. Tex. Ethics Comm’n v. Sullivan, 2015 WL 6759306, at *7. A guest in a hotel is a mere licensee, not a tenant. Richardson v. Bigelow Mgmt., Inc., No. 05-06-00213-CV, 2007 WL 1139775, at *4 (Tex. App.—Dallas Apr. 18, 2007, no pet.). Thus, Fortenberry failed to establish he possessed a fixed place of abode at the Residence Inn at the time of his injury.

In addition, Fortenberry provided no evidence of the frequency and duration of his stay at the Residence Inn prior to his injury. Thus, Fortenberry failed to present prima facie evidence establishing a consistent occupancy in Dallas County over a substantial period of time at the time of his injury. Snyder, 241 S.W.2d at 141 (collecting cases on second element of secondary-residence test and concluding evidence that defendant spent five days a week in county for two consecutive years was consistent occupancy over a substantial period of time); Plains Ins. Co. v. Acuna, 614 S.W.2d 885, 887–89 (Tex. App.—Eastland 1981, no writ) (finding no evidence of secondary residence in Maverick County because plaintiff testified he previously rented a house in Maverick County to “live there for ... several months” before leaving to work in other counties while his wife “sometimes” stayed in Maverick County, lived in Lubbock County at the time his claim accrued, and moved back to Maverick County after claim accrued).

As to the third element, the question of whether a stay is temporary or permanent is a question of intent to be proven by declarations, usually to others, and acts. Snyder, 241 S.W.2d at 141. Fortenberry made no attempt to detail any acts that would indicate that his stay at the Residence Inn at the time of his injury was anything other than temporary, nor could he. Rooms at hotels, motels, inns and the like are temporary or transient housing and are not residences. Warehouse Partners v. Gardner, 910 S.W.2d 19, 23 (Tex. App.—Dallas 1995, writ denied). Accordingly, Fortenberry failed to establish he consistently and permanently stayed in Dallas County at the time of his injury.

We conclude Fortenberry failed to present prima facie proof of a residence in Dallas County.

Fortenberry asserts even if venue is not mandatory in Dallas County it is permissive because his NFL Player Contract expresses the parties’ intention that Dallas County is the proper county for maintenance of the current case. As an initial matter, we note that Great Divide is not a party to Fortenberry’s NFL Player Contract. Fortenberry claims that because the relationship between an employee, employer, and insurer is contractual and the provisions of the workers’ compensation statute existing at the time of the issuance of the workers’ compensation policy are to be considered part of the employee–employer contract, Ankrom v. Dallas Cowboys Football Club, Ltd., 900 S.W.2d 75, 78 n. 5 (Tex. App.—Dallas 1995, writ denied), Great Divide is subject to and bound by the venue provision in his contract with the Dallas Cowboys. Fortenberry’s extension of this Court’s statement in Ankrom in reverse is unsupported by any legal authority, and we decline to extend its application here.

Fortenberry further asserts Dallas County was nevertheless a county of proper venue because Great Divide had a principal office in Irving, Texas. We note that where there is no county of proper venue under section 410.252(b) of the labor code, venue is governed by the general venue rule contained in section 15.002(a) of the Texas Civil Practice and Remedies Code. See Rayas v. Tex. Mut. Ins. Co., No. 03-11-00310-CV, 2013 WL 150304, at * 4 (Tex. App.—Austin Jan. 11, 2013, no pet.) (mem. op.). Under that general rule, a lawsuit may be brought “in the county of the defendant’s principal office of this state, if the defendant is not a natural person.” CIV. PRAC. & REM. § 15.002(a)(3) (emphasis added). To establish a principal office in a particular county, there must be prima facie proof that the decision makers for the organization within the state conduct the daily affairs of the organization in the county. Id. § 15.001(a). A mere agent or representative is not a decision maker nor is a principal office one where only decisions typical of an agency or representative are made. Mo. Pac., 998 S.W.2d at 217, 220. Accordingly, to establish venue based on a principal office, Fortenberry must show the employees in the county where the lawsuit was filed are decision makers for the company and have substantially equal responsibility and authority relative to other company officials within the state. Ford Motor, 473 S.W.3d at 928–29. Decision makers who conduct the daily affairs are different kinds of officials than agents or representatives, and daily affairs does not mean relatively common, low-level management decisions. Mo. Pac., 998 S.W.2d at 217.

Fortenberry contends a copy of a letter from a claims examiner at Berkley Specialty Underwriting Managers to Fortenberry, notifying Fortenberry that Great Divide disputed his claim and refused to pay benefits establishes Great Divide has a principal office in Dallas County because failure to provide claims services through a resident representative with full power to act for the insurance carrier is an administrative violation, see LAB. § 406.010(a),5 and a sub-script on the letter contains an address in Irving, Texas. This letter, standing alone, does not establish Great Divide has a principal office in Dallas County. At best, it may suggest Great Divide has an agent or representative in Dallas County, which is not sufficient to establish a principal office. CIV. PRAC. & REM. § 15.001(a).

We conclude Fortenberry failed to prove that mandatory or permissive venue lies in Dallas County. Thus, there is no probative evidence supporting the trial court’s legal determination that venue was proper in Dallas County, and no rational inference could have been made placing venue in Dallas County on the date of Fortenberry’s injury.

III. Whether There Is Prima Facie Proof Venue Was Proper in Travis County

Next, we must determine whether there is any probative evidence in the record to show venue was proper in Travis County, the county to which Great Divide sought transfer. TEX. R. CIV. P. 87(2)(a); Mo. Pac., 998 S.W.2d at 216. In support of its assertion that Travis County was a proper venue, Great Divide relies on the affidavit of one of its attorney stating her law firm, located in Austin, Travis County, serves as Great Divide’s statutorily required representative to the DWC, see LAB. § 406.011,6 and acts as agent for receiving notice from the DWC. She further states any notice the law firm receives from the DWC is notice to Great Divide and all correspondence and filings with the DWC regarding Fortenberry’s workers’ compensation claim was filed through the law firm in Travis County.

As stated supra, in order to prove the existence of a principal office, a party must show the employees in the chosen county are decision makers for the company and have substantially equal responsibility and authority relative to other company officials within the state. Ford Motor, 473 S.W.3d at 928–29. At best, Great Divide’s evidence establishes the law firm is its agent for notice and filing with respect to the DWC and functions similarly to a registered agent for service of process. It does not attempt to show the principal decision makers of the company are located there or to establish their role for the company is qualitatively different from that of any other agents, including, for example, its agent in Dallas. See e.g., id. at 931 (concluding registered office is nothing more than location entity has designated where it can be served with legal process and does not show principal decision makers of entity conducted its daily affairs from that location). We conclude there is no evidence in the record to show Great Divide has a principal office in Travis County.

CONCLUSION

Because Fortenberry offered no prima facie proof that he resided in Dallas County for venue purposes on the date of his injury or that Great Divide has a principal office in Dallas County and because Great Divide failed to present prima facie proof it maintains a principal office in Travis County, neither party made the necessary venue showing. Accordingly, we reverse the trial court’s judgment and remand to the trial court to conduct further proceedings on the issue of venue.7 See Ruiz, 868 S.W.2d at 758. We instruct the trial court to direct the parties to make further proof. TEX. R. CIV. P. 87(3)(d). Because this is a threshold determination, we need not address Great Divide’s remaining issues. TEX. R. APP. P. 47.1.

JUDGMENT

Opinion delivered by Justice Schenck. Justices Reichek and Carlyle participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court to conduct further proceedings on the issue of venue.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 26th day of July 2021.

Footnotes

1

“In the event that the parties shall fail to make prima facie proof that the county of suit or the specific county to which transfer is sought is a county of proper venue, then the court may direct the parties to make further proof.” TEX. R. CIV. P. 87(3)(d); see also Ken-Do Contracting, L.P. v. F.A. Brown’s Constr., L.L.C., No. 05-16-00373-CV, 2017 WL 3381105, at *2, 4 (Tex. App.—Dallas Aug. 7, 2017, pet. denied) (mem. op.).

2

Section 410.252(b)(1) of the labor code provides, “[t]he party bringing suit to appeal the decision must file a petition with the appropriate court in: (1) the county where the employee resided at the time of the injury or death, if the employee is decease.” TEX. LAB. CODE ANN. § 410.252(b)(1).

3

Great Divide is a foreign corporation with its home office in North Dakota.

4

In the Snyder case, the Texas Supreme Court found Snyder was a resident of Dallam County. In doing so, the court noted Snyder spent five days a week in Dallam County for about two years, he rented a room at a hotel “for [an unspecified] period” and then moved to a room rented in a private home, and he occupied a fixed place of abode consistently and with continuity. Snyder, 241 S.W.2d at 141. The supreme court concluded, “[a] rented room may be a residence.” Id. At 141. It did not conclude the rental of a hotel room may be a residence.

5

406.010 of the labor code, entitled Claims Service: Administrative Violation, provides, in part, “[a]n insurance carrier shall provide claims service: (1) through offices of the insurance carrier located in this state; or (2) by other resident representatives will full power to act for the insurance carrier .... A person commits an administrative violation if the person violates a rule adopted under this section. LAB. § 406.010(a)(d).

6

Section 406.011 of the labor code, entitled Austin Representative; Administrative Violation, provides, “(a) The commissioner by rule may require an insurance carrier to designate a representative in Austin to act as the insurance carrier’s agent before the division in Austin. Notice to the designated agent constitutes notice to the insurance carrier. (b) A person commits an administrative violation if the person violates a rule adopted under this section.” LAB. § 406.011.

7

Our conclusion that venue is not proper in Dallas County and the law of the case doctrine applies to exclude Dallas County as a proper venue in any subsequent proceeding. See Ken-Do Contracting, L.P. v. F.A. Brown’s Constr., LLC, No. 05-19-00228-CV, 2020 WL 1060699, at *3 n.1 (Tex. App.—Dallas Mar. 5, 2020, pet. denied). As the supreme court has explained, “[b]y narrowing the issues in successive appeals, the law-of-the-case doctrine further seeks to promote efficiency and uniformity in the decision-making process. Requiring a party to reargue issues previously lost in the court of appeals as a predicate to this Court’s review would obviously work at cross-purposes to the doctrine.” See Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012) (under law-of-the case doctrine, decision rendered in former appeal of case generally binding in later appeal of same case).

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