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Court of Appeals of Texas, Dallas.

Phyllis LEE, Appellant

v.

GRAND PRAIRIE INDEPENDENT SCHOOL DISTRICT, Appellee

No. 05-22-00338-CV

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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

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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

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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

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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).

Court of Appeals of Texas, Dallas.

EMANUEL LEWIS, ON BEHALF OF HIMSELF AND A CLASS OF CERTAIN DALLAS COUNTY DETENTION SERVICE OFFICERS, Appellant

v.

DALLAS COUNTY SHERIFF MARIAN BROWN, IN HER OFFICIAL CAPACITY, Appellee

No. 05-20-00855-CV

|

Opinion Filed May 5, 2021

On Appeal from the 162nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-20-11810

Before Justices Pedersen, III, Reichek, and Garcia

Opinion by Justice Pedersen, III

MEMORANDUM OPINION

BILL PEDERSEN, III JUSTICE

Affirmed and Opinion Filed May 5, 2021

Detention Security Officer Emanuel Lewis sought injunctive relief against Marian Brown, Dallas County Sheriff—in her official capacity—in relation to Sheriff Brown’s actions regarding the use of the county jail and conditions in the county jail amid the COVID-19 pandemic. Sheriff Brown filed a plea to the jurisdiction, for which the trial court conducted a non-evidentiary hearing. The trial court entered an order granting Sheriff Brown’s plea to the jurisdiction, which effectively dismissed Officer Lewis’s claims. Officer Lewis appeals that order. After reviewing the parties’ briefs and the record, we affirm the judgment of the trial court.

I. BACKGROUND

By March 2020, the contagious COVID-19 coronavirus disease began to infect people in the Dallas County Jail (“Jail”). Sheriff Brown was tasked with managing the Jail. Officer Lewis worked as a detention security officer in the Jail. Officer Lewis—both as an individual and as the representative of a putative class of Dallas County detention service officers who have not been diagnosed with COVID-19—filed a lawsuit against Sheriff Brown due to her actions in managing the Jail in response to the COVID-19 pandemic.1 Officer Lewis pled that Sheriff Brown acted ultra vires, alleging she had:

(a) created an ongoing public health nuisance and failed to abate that nuisance, ...

(b) failed to maintain the Jail in a clean and sanitary condition in accordance with standards of sanitation and health, ... and

(c) ignored the requirements that the Jail have the appropriate number of jailers, sufficient staff, and preventative maintenance.

Officer Lewis alleged Sheriff Brown’s acts threatened to cause him, and the members of his putative class of detention service officers, personal injury and death. Officer Lewis further pled that Sheriff Brown was negligent in her duties. His petition sought solely injunctive relief to enjoin Sheriff Brown from “continuing to operate the Jail in a negligent and grossly negligent manner” and to require that she “immediately begin and continue to maintain effective preventative measures to control the spread of COVID-19 at the Jail.” Officer Lewis sought no damages or other relief.

Sheriff Brown asserted a plea to the jurisdiction and filed an answer. The trial court held a hearing and granted Sheriff Brown’s plea to the jurisdiction.2 Officer Lewis then timely filed this appeal.

II. ISSUES RAISED ON APPEAL

Officer Lewis raises a single issue on appeal with four sub-issues:

Issue One: Whether the trial court erred in granting the Sheriff’s plea to the jurisdiction.

1. Whether the Texas Workers’ Compensation Act shields the Sheriff from suit by Officer Lewis and the Class even though they are seeking only injunctive relief to prevent future harm, not damages.

2. Whether Officer Lewis has standing to sue for an injunction to prevent the Sheriff’s ultra vires and negligent conduct before he becomes sick or dies.

3. Whether governmental immunity deprived the trial court of jurisdiction from Officer Lewis’s claims for ultra vires conduct by the Sheriff that is without legal authority or involved the Sheriff ‘s failure to perform purely ministerial acts mandated by statute.

4. Whether Officer Lewis’s negligence and negligence per se claims against the Sheriff fall within the Texas Tort Claims Act.

III. STANDARD OF REVIEW

Subject-matter jurisdiction is essential to the authority of a court to decide a case. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A trial court’s ruling on a plea challenging subject matter jurisdiction is reviewed de novo. City of Dallas v. Redbird Dev. Corp., 143 S.W.3d 375, 380 (Tex. App.—Dallas 2004, no pet.) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)). A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action based on lack of subject-matter jurisdiction without regard to the merits of the claim. Town of Fairview v. Lawler, 252 S.W.3d 853, 855–56 (Tex. App.—Dallas 2008, no pet.) (citing Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000)). A plea to the jurisdiction may challenge either the pleadings or the existence of jurisdictional facts. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27 (Tex. 2004).

IV. DISCUSSION

A. Subject Matter Jurisdiction

Because subject matter jurisdiction is essential to Officer Lewis’s claims, we address that issue first. Officer Lewis contends that governmental immunity does not protect Sheriff Lewis from the suit, alleging her actions were ultra vires. We therefore address governmental immunity, ultra vires action, and whether the allegations and facts pled sustain a viable ultra vires action.

i. Governmental Immunity

Under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent. City of Houston v. Williams, 353 S.W.3d 128, 134 (Tex. 2011) (citing Tooke v. City of Mexia, 197 S.W.3d 325, 331 (Tex. 2006)). Sovereign immunity and governmental immunity are two related common law doctrines that protect the government from suit. Harris County v. Annab, 547 S.W.3d 609, 612 (Tex. 2018).3 The purpose of governmental immunity is pragmatic: to shield the public from the costs and consequences of improvident actions of their governments. Tooke, 197 S.W.3d at 332. Sovereign immunity deprives a trial court of subject matter jurisdiction for lawsuits in which the state or certain governmental units have been sued—unless the state or governmental unit consents to suit. Miranda, 133 S.W.3d at 224. Absent a valid statutory waiver of immunity, a trial court may not assume subject-matter jurisdiction over a suit against a governmental unit. City of San Antonio v. Tenorio, 543 S.W.3d 772, 775 (Tex. 2018) (citing Ryder Integrated Logistics, Inc. v. Fayette Cty., 453 S.W.3d 922, 926–27 (Tex. 2015)).

ii. Ultra Vires Action

Even if a governmental entity’s immunity has not been waived by the Legislature, a claim may be brought against a governmental official if the official engages in ultra vires conduct. City of Houston v. Houston Mun. Employees Pension Sys., 549 S.W.3d 566, 576 (Tex. 2018). Suits to require state officials to comply with a statutory or constitutional provision are not prohibited by sovereign immunity. City of El Paso v. Heinrich, 284 S.W.3d 366, 373–77 (Tex. 2009). Plaintiffs in ultra vires suits must “allege, and ultimately prove, that the officer [(i)] acted without legal authority or [(ii)] failed to perform a purely ministerial act.” Id. Ultra vires claims depend on the scope of a state official’s authority. Hall v. McRaven, 508 S.W.3d 232, 234 (Tex. 2017).

It is not an ultra vires act for an official or agency to make an erroneous or improvident decision while staying within its authority. Hall, 508 S.W.3d at 242. Ultra vires suits do not attempt to exert control over the state—rather they seek to enforce existing policy. Heinrich, 284 S.W.3d at 372. Nevertheless, governmental immunity “does not bar a suit for prospective injunctive relief remedies in official-capacity suits against government actors who violate statutory or constitutional provisions.” Dallas County Hosp. Dist. v. Sosa, No. 05-19-01164-CV, 2020 WL 4581666, at *3 (Tex. App.—Dallas Aug. 10, 2020, pet. filed) (mem. op.) (citing Heinrich, 284 S.W.3d at 369).4

iii. Whether Sheriff Brown Acted Without Lawful Authority

First, Officer Lewis asserts that Sheriff Brown acted in excess of the bounds of her granted authority—that her conduct was contrary to her mandatory statutory duties. An official acts beyond the limits of her authority when she (i) misinterprets the enabling law that creates the authority for her to act or (ii) acts in conflict with the law that authorizes her to act or violates state law. Hall, 508 S.W.3d at 238, 241. Officer Lewis argues that Sheriff Brown acted outside of her authority when she violated her mandatory duties by operating the Jail in an unclean, unsanitary condition and as a public nuisance. With regard to Sheriff Brown’s duties, the Local Government Code provides:

(a) The sheriff of each county is the keeper of the county jail. The sheriff shall safely keep all prisoners committed to the jail by a lawful authority, subject to an order of the proper court.

(b) The sheriff may appoint a jailer to operate the jail and meet the needs of the prisoners, but the sheriff shall continue to exercise supervision and control over the jail.

TEX. LOC. GOV’T CODE ANN. § 351.041.5

Officer Lewis’s ultra vires claims relate to policies and actions at the Jail regarding (i) social distancing guidance from the Centers for Disease Control and Prevention (“CDC”), (ii) testing for COVID-19, (iii) supply and use of personal protective equipment (“PPE”), (iv) training for dealing with inmates that exhibit symptoms of COVID-19, and (v) cleanliness of the premises. Officer Lewis directs us to the Local Government Code, which states: A county jail must be: “maintained in a clean and sanitary condition in accordance with standards of sanitation and health.” LOC. GOV’T § 351.010(4). Officer Lewis directs us to the Texas Health and Safety Code—which provides a public health nuisance includes “a place, condition, or building controlled or operated by a state or local government agency that is not maintained in a sanitary condition” and “an object, place, or condition that is a possible and probable medium of disease transmission to or between humans.” TEX. HEALTH & SAFETY CODE ANN. § 341.011(4), (12). Officer Lewis further refers to the Texas Health and Safety Code’s nuisance statute, which provides that “a person shall abate a public health nuisance existing in or on a place the person possesses as soon as the person knows that the nuisance exists.” HEALTH & SAFETY § 341.012.

Officer Lewis directs us to our opinion in Dallas County Hospital District v. Sosa, in which we discussed ultra vires claims in the context of a specific Property Code statute regarding hospital liens:

Section 55.004 of the property code provides a hospital lien may include “the amount of a physician’s reasonable and necessary charges for emergency hospital care services provided to the injured individual” but does not cover charges “for other services that exceed a reasonable and regular rate for the services.”

Sosa, 2020 WL 4581666, at *7 (quoting TEX. PROP. CODE ANN. § 55.004(c), (d)(1)). We held, in part, that Parkland Hospital’s Chief Operating Officer lacked statutory authority to authorize a hospital lien for charges that were not reasonable or necessary in contravention of the terms of the Texas Property Code. Id.; PROP. § 55.004.

Unlike Sosa, Officer Lewis’s pleadings do not point to a specific statute that Sheriff Brown acted beyond her authority or without authority. Officer Lewis does not dispute that Sheriff Brown is keeper of the Jail, authorized to safely keep all prisoners committed to the jail by a lawful authority. Officer Lewis’s briefing directs us to no statutorily required action that Sheriff Brown has failed to perform. Indeed, he admits Sheriff Brown has taken action regarding the five bases in his petition. Officer Lewis’s pleadings explain:

(i) Inmates and officers were organized in pods that were to quarantine together should someone in the pod have come under suspicion of having contracted COVID-19.6

(ii) Although detention service officers were excluded from testing, the Jail permitted COVID-19 testing for inmates through Parkland Hospital.

(iii) Albeit limited, the Jail provided PPE to detention service officers and inmates.

(iv) Although Sheriff Brown did not provide specific training to detention service officers regarding COVID-19, the Jail implemented policies on handling infectious diseases and shared short videos about how to wear PPE.

(v) The Jail was routinely cleaned, and the Jail was provided with disinfectant and bleach-based cleaners.

Nevertheless, Officer Lewis’s petition asserts that Sheriff Brown should “begin and continue to maintain effective preventative measures to control the spread of COVID-19”—suggesting additional measures to ensure (i) social distancing under CDC guidelines; (ii) increased testing for COVID-19; (iii) increased supply and use of PPE; (iv) additional training on COVID-19; and (v) increased cleanliness at the Jail.7

Officer Lewis does not direct us to a statute applicable to Sheriff Brown, which requires her to take the actions described in his five bases. We have likewise found no such statutory requirements. Officer Lewis does not point us to facts that Sheriff Brown has misinterpreted the enabling law that creates authority for her to act, acted in conflict with the law that authorizes her to act, violated state law, or otherwise acted without lawful authority. We conclude that Sheriff Brown did not act without lawful authority.

iv. Whether Sheriff Brown Failed to Perform a Ministerial Act

Second, Officer Lewis asserts that Sheriff Brown failed to perform a ministerial act—that she has ignored her statutory obligations. An act is ministerial when the law clearly spells out the duty to be performed by the official with sufficient certainty that nothing is left to the official’s discretion. Anderson v. City of Seven Points, 806 S.W.2d 791, 793 (Tex. 1991). If an action involves personal deliberation, decision, and judgment, it is discretionary—not ministerial. Dallas County v. Halsey, 87 S.W.3d 552, 557 (Tex. 2002) (quoting City of Lancaster v. Chambers, 883 S.W.2d 650, 654 (Tex. 1994)). Whether a governmental activity is discretionary is a question of law. State v. San Miguel, 2 S.W.3d 249, 251 (Tex. 1999); City of Irving v. Seppy, 301 S.W.3d 435, 442 (Tex. App.—Dallas 2009, no pet.).

Officer Lewis argues that the “mere fact that the Sheriff has options for how to maintain the jail in a clean and sanitary condition and how to abate a public nuisance does not vest her with any discretion to ignore her statutory obligation to do so.” (emphasis in original). Officer Lewis directs us to the Texas Supreme Court’s holding in City of Houston v. Houston Municipal Employees Pension System in which:

[t]he System requested various types of employee data and designation of a point person to provide employee and payroll information. This request and two additional requests went unanswered. Further, the City did not make contributions to fund the pension plan for employees of HF Corporation, HF Foundation, and CC Services.

Houston Mun. Employees Pension Sys., 549 S.W.3d at 573. Pertinent here, the System argued that article 6243h required the City to provide pension payments and that such a requirement was ministerial, not discretionary. Id. at 582. The Texas Supreme Court agreed, holding that article 6243h created a ministerial duty. Id. at 582. (“Article 6243h states that the City “shall provide full and timely information” to the Pension System and “shall make contributions” to the Pension System. (quoting TEX. REV. CIV. STAT. art. 6243h, §§ 2(u), 8A(a))). The Texas Supreme Court narrowed the inquiry as to whether the City’s duties were discretionary or ministerial as follows: “[t]he controversy here is not about how the City must make the payments, only whether it must.... [Article 6243h] leaves no room for the City to exercise judgment regarding whether the payments must be made.” Id. at 582 (emphasis added).

Unlike Houston Municipal Employees Pension System, the instant case does not involve a statute that “leaves no room” for Sheriff Brown to exercise judgment. See generally id. Neither (i) the statutes that directly govern Sheriff Brown’s duties,8 nor (ii) the statutes Officer Lewis cites regarding the maintenance and conditions of the Jail,9 nor (iii) the statutes relating to public nuisance10 require Sheriff Brown to act with such certainty or specificity as is found in article 6243h. Furthermore, although Officer Lewis claims Sheriff Brown has “ignored” her duties, he concedes—as discussed above—that Sheriff Brown has taken actions to fulfill her duties. Thus, unlike Houston Municipal Employees Pension System, the instant controversy is not whether Sheriff Brown fulfilled her duties as Sheriff but, rather, how Sheriff Brown has fulfilled her ministerial duties. Sheriff Brown’s exercise of her statutory authority in serving as the “keeper of the county jail,” with the “authority to supervise, direct, or control the daily operation of the county jail” is an exercise of her discretionary powers. See LOC. GOV’T § 351.041; Tex. Att’y Gen. Op. No. H-1190 (1978).

Therefore, Officer Lewis’s claims are based on Sheriff Brown’s exercise of discretion, not whether she has failed to perform a ministerial act. We conclude that Sheriff Brown has not failed to perform a ministerial act.11 In combination with our conclusion that Sheriff Brown had not acted without lawful authority, we conclude Officer Lewis has not pled an actionable ultra vires claim against Sheriff Brown.

v. Liability Under the Texas Torts Claim Act

Officer Lewis asserts that his negligence claims, which request solely injunctive relief, fall within the scope of the Texas Torts Claim Act (“TTCA”)—that the TTCA provides an independent waiver of sovereign immunity because his claims arise from the “condition or use of tangible personal or real property” at the Jail. See TEX. CIV. PRAC. & REM. CODE § 101.021(2).12 A statutory waiver of sovereign immunity must be construed narrowly, and statutory language waiving immunity must be clear and unambiguous. In re Smith, 333 S.W.3d 582, 587 (Tex. 2011); see also TEX. GOV’T CODE § 311.034 (codifying the clear and unambiguous standard). Where the language of a statute is unambiguous, we interpret the statute according to its plain meaning. Sunstate Equip. Co., LLC v. Hegar, 601 S.W.3d 685, 690 (Tex. 2020).

Section 101.023 of the TTCA, provides limitations on the amount of liability and reads, in each subsection, that liability “is limited to money damages.” CIV. PRAC. & REM. § 101.023. We have found no other section of the TTCA that addresses or permits injunctive relief against a governmental unit. The TTCA waives sovereign immunity only “to the extent of liability created by [the] chapter.” CIV. PRAC. & REM. § 101.025(a). Since the only measure of liability provided by the TTCA is money damages, the TTCA does not waive sovereign immunity for injunctive relief. See CIV. PRAC. & REM. § 101.023; see, e.g., Tex. Dep’t of Transp. v. Ramming, 861 S.W.2d 460, 468 (Tex. App.—Houston [14th Dist.] 1993, writ denied) (holding the exclusive mode and measure of liability for which the State is willing to waive sovereign immunity is for money damages).13 Thus, we conclude the TTCA does not afford Officer Lewis an avenue to pursue injunctive relief for his negligence claims.

Furthermore, even if we were to conclude the TTCA waived immunity such that Officer Lewis could proceed with injunctive relief under his negligence claims, the TTCA does not waive a governmental unit’s immunity for a claim based on either (i) the governmental unit’s failure to perform an act the unit was not required by law to perform or (ii) the governmental unit’s decision not to perform an act or its failure to make a decision on the performance or nonperformance of an act if the law leaves the performance or nonperformance of the act to the governmental unit’s discretion. CIV. PRAC. & REM. § 101.056; Tarrant Reg’l Water Dist. v. Johnson, 572 S.W.3d 658, 665 (Tex. 2019).14 As we have discussed and concluded above, Officer Lewis’s suit sought to hold Sheriff Brown liable for claims based on (i) her failure to perform acts not required by law and (ii) her actions taken under her discretionary authority. Consequently, we conclude the TTCA does not waive Sheriff Brown’s immunity for Officer Lewis’s negligence claims. Coupled with our conclusion that Officer Lewis failed to plead an actionable ultra vires suit, we overrule Officer Lewis’s sole issue. We do not reach his remaining sub-issues.15

V. CONCLUSION

Because Officer Lewis pled neither an actionable ultra vires claim nor an actionable negligence claim under the TTCA against Sheriff Brown, subject matter jurisdiction over those claims is lacking as a matter of law. We therefore affirm the judgment of the trial court.

Footnotes

1

On March 11, 2020, the World Health Organization declared COVID-19 a global pandemic.

2

The trial court’s order granting Sheriff Brown’s plea to the jurisdiction did not specify the basis of its ruling.

3

“ ‘Sovereign immunity protects the state and its various divisions, such as agencies and boards, from suit and liability, whereas governmental immunity provides similar protection to the political subdivisions of the state, such as counties, cities, and school districts.’ ” Annab, 547 S.W.3d at 612 (quoting Travis Cent. Appraisal Dist. v. Norman, 342 S.W.3d 54, 57–58 (Tex. 2011)).

4

“We conclude that while governmental immunity generally bars suits for retrospective monetary relief, it does not preclude prospective injunctive remedies in official-capacity suits against government actors who violate statutory or constitutional provisions.” Heinrich, 284 S.W.3d at 368–69.

5

We note, however, that the Commission on Jail Standards adopts reasonable rules and procedures establishing minimum standards for many aspects of county jails. See TEX. GOV’T CODE ANN. § 511.009(a)(1-5).

6

We note that CDC guidelines regarding COVID-19, including those on social distancing, are not binding on the Jail. See Sanchez v. Brown, 3:20-CV-00832-E, 2020 WL 2615931, at *18 (N.D. Tex. May 22, 2020) (“Should legislators deem it appropriate for CDC recommendations to become law, they will surely make them so. Using this Court’s power to order the jail to follow what are now just recommendations from the CDC would turn this district court into a lawmaking body.”).

7

Officer Lewis’s petition also complains of jailor and staffing levels at the Jail. However, neither his petition nor briefing directs us to any facts or specific allegations that jailor or staffing levels fall below statutory requirements. See 37 TEX. ADMIN CODE § 275.4. (“One jailer shall be provided on each floor of the facility where 10 or more inmates are housed, with no less than 1 jailer per 48 inmates or increment thereof on each floor for direct inmate supervision.... Sufficient staff to include supervisors, jailers and other essential personnel as accepted by the Commission shall be provided to perform required functions.”). Officer Lewis’s complaints of staffing levels relate to the CDC guidelines of social distancing, which are not binding on the Jail. Additionally, Officer Lewis’s petition complains of “preventative maintenance” at the Jail. Neither his petition nor his briefing directs us to any facts or specific allegations that any aspect of the Jail requires preventative maintenance.

8

See LOC. GOV’T § 351.041.

9

See LOC. GOV’T § 351.010(4).

10

See HEALTH & SAFETY § 341.011(4), (12); HEALTH & SAFETY § 341.012

11

Officer Lewis sought relief that would result in control over Sheriff Brown’s exercise of her discretionary authority. A suit that seeks to direct or control a government official in the exercise of her absolute discretionary authority is a suit to control state action. See Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 163-64 (Tex. 2016); Heinrich, 284 S.W.3d at 372. Such suits to control discretionary state action are barred by sovereign immunity. See Klumb v. Houston Mun. Employees Pension Sys., 458 S.W.3d 1, 11 (Tex. 2015) (holding that, absent a conspicuous and irreconcilable conflict, the Texas Supreme Court could not further consider discretionary authority afforded to a municipal pension board under article 6243h.).

12

“A governmental unit in the state is liable for: personal injury and death so caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law.” CIV. PRAC. & REM. § 101.021(2).

13

Our sister court addressed liability under the TTCA.

Section 101.023 imposes a limit on the State’s liability. “[Liability] is a broad legal term.... It has been referred to as of the most comprehensive significance, including almost every character of hazard or responsibility, absolute, contingent, or likely.” BLACK’S LAW DICTIONARY 823 (5th ed. 1979). Therefore, the only legal obligations, however characterized, capable of being imposed on the State are those specified by § 101.023. Section 101.023 specifies that the State’s only permissible liability is “money damages in a maximum amount of $250,000.” Therefore, § 101.023 states simply and unequivocally that the State can only be liable for “money damages” (as opposed to injunctive relief) that do not exceed $250,000. In other words, § 101.023 states the exclusive mode and measure of liability for which the State is willing to waive sovereign immunity.

Ramming, 861 S.W.2d at 468 (emphasis added).

14

“Section 101.056 preserves immunity ‘for the state’s failure to act, when no particular action is required by law.’ ... The exception ‘avoid[s] judicial review or interference with those policy decisions committed to the other branches of government.’ ” Tarrant Reg’l Water Dist. v. Johnson, 572 S.W.3d 658, 665 (Tex. 2019) (citation omitted, quoting Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 657 (Tex. 2007)).

15

Both parties briefed the potential application of the Texas Worker’s Compensation Act (“TWCA”) and that it applies to “work-related injuries.” TEX. LABOR CODE ANN. § 408.001. Officer Lewis specifically pled he had not suffered an injury—that is, he and his putative class have not been sickened or killed by COVID-19. As we have concluded that Officer Lewis pled neither an actionable ultra vires claim nor an actionable claim under the TTCA, we pretermit any further discussion of the TWCA.

Court of Appeals of Texas, Dallas.

TRENT S. GRIFFIN, Appellant

v.

AMERICAN ZURICH INSURANCE COMPANY, Appellee

No. 05-19-00630-CV

|

Opinion Filed April 21, 2021

On Appeal from the 101st Judicial District Court

Dallas County, Texas

Trial Court Cause No. DC-13-05893

Before Justices Schenck, Molberg, and Nowell

Opinion by Justice Molberg

MEMORANDUM OPINION

KEN MOLBERG JUSTICE

Reverse and Remand and Opinion Filed April 21, 2021

In his second appeal in this case,1 appellant Trent S. Griffin, appearing pro se, appeals the trial court’s final judgment and argues the trial court abused its discretion in dismissing his claims with prejudice. We agree and reverse, as we explain below.

BACKGROUND

We draw certain facts from our prior opinion. This is a suit for judicial review of a decision of the Texas Department of Insurance—Workers’ Compensation Division (“the Division”). On February 21, 2012, Griffin suffered an on-the-job injury and made a claim for workers’ compensation benefits. American Zurich Insurance Company (“Zurich”) accepted the claim and began paying temporary income benefits. The Division subsequently designated a doctor to determine whether Griffin had reached maximum medical improvement and, if so, what his impairment rating was. The designated doctor determined that Griffin had suffered a neck and shoulder soft tissue injury and also diagnosed him as having degenerative conditions of the shoulder and neck. The designated doctor concluded the degenerative conditions were most likely preexisting, but required further evaluation. The designated doctor nevertheless evaluated the soft tissue injuries and, based on those injuries, determined Griffin had reached clinical maximum medical improvement (MMI) on April 26, 2012, and had a zero percent impairment rating. He stated he would obtain an EMG and MRI and provide an addendum if the results altered his conclusions. One week later, the designated doctor finalized his report without additional testing because Griffin was unable to schedule both an EMG and an MRI within the time limits required by the Division. A doctor selected by Griffin’s treating physician subsequently examined Griffin. That doctor diagnosed Griffin with a cervical disc displacement and cervical radiculitis and concluded Griffin had not yet reached MMI.

A contested case hearing followed to resolve the parties’ disputes regarding the extent of Griffin’s on-the-job injuries, whether he had reached MMI, and, if so, what his impairment rating was. The hearing officer determined Griffin had failed to show a causal link between the compensable injury event and the disputed injuries, Griffin’s on-the-job injury was limited to the soft tissue injuries, and Griffin had reached MMI on April 26, 2012, with a zero percent impairment rating. An appeals panel affirmed the hearing officer’s decision.

Griffin filed suit on May 29, 2013, for judicial review of the Division’s decision. We noted in our original opinion that Griffin’s petition included complaints that (1) the evidence did not support the Division’s decision, (2) Zurich waived its right to contest whether his injuries were compensable, (3) he was denied his rights to due process and equal protection of the laws, (4) the Division’s decision was arbitrary and capricious, and (5) the Division exceeded its statutory authority.2

The trial court granted summary judgment on various issues, but its orders did not dispose of all issues and claims. Thus, because we lacked jurisdiction to consider the trial court’s prior summary judgment orders, we dismissed that appeal and remanded the case as a result. See Griffin, 2016 WL 4039257, at *1–2.

Following remand, the case was called for jury trial on January 15, 2019. Griffin appeared pro se and announced ready, and he never withdrew that announcement. Zurich appeared through its counsel and explained it had announced not ready the week before. The court asked Zurich’s counsel why it was not ready, disagreed with counsel’s conclusion regarding the court’s prior orders, and indicated trial would proceed.3

The parties and the court engaged in other discussions about various pretrial matters, including witnesses, exhibits, and motions in limine. Upon inquiry from the court, Griffin identified nine witnesses other than himself that he intended to call and stated two were there at that time. Zurich’s counsel objected to all of the witnesses, stating Griffin had failed to disclose them during the discovery process, which Griffin disputed.4 Zurich’s counsel also informed the court that Griffin was the only witness Zurich intended to call.

The court discussed exhibits briefly but moved on to Zurich’s motion in limine, granting several of the matters addressed therein. Soon after noting “we have our jury coming in pretty soon,” the court went off the record, and it is not clear from the record whether any additional discussion or rulings occurred in the interim.

When the proceedings continued on the record, the court stated:

One of the first things about being a judge is that you have to follow the rules regardless of the outcome. Sometimes it’s easy to do so and sometimes it’s very difficult because we want the end result of people having their day in court. However, at the district court level when you have your day in court, you must follow the rules. I am obligated to follow the rules of civil procedure regardless of the result. And upon – I took a couple of minutes to take a look – re-reviewed the Texas Rules of Civil Procedure and, unfortunately, the result is – unfortunately, the result is if you didn’t identify the witnesses, I can’t at the last minute allow you to present these witnesses. You have to follow the Texas Rules of Civil Procedure. The result is unfortunate, which is why we advise pro se individuals to – to seek legal counsel so that these harsh, harsh results do not occur. So the Court is now going to reverse its rulings from earlier. These witnesses were not identified, therefore, they will not be permitted to testify [naming two of them] or any of the witnesses identified as well as the exhibits. So at this point I think this case is a case that will have to be dismissed for want of prosecution.

Zurich’s counsel asked what the court would like done regarding an order, and after discussing that for a moment, they concluded as follows:

[ZURICH’S COUNSEL]: Okay.... You struck the fifth amended pleading?

THE COURT: Correct.5

[ZURICH’S COUNSEL]: I’ll put that in there.

THE COURT: Okay. You can put in whatever you want. I’m famous for interlineating.

[ZURICH’S COUNSEL]: We’re making a record.

THE COURT: Okay. Right.

[ZURICH’S COUNSEL]: We know what’s going to happen. And we don’t want another 18 months later coming back here.

THE COURT: No. This needs to be shut down. And I really just wanted to create a record so it wouldn’t – but looking back, I would have been running afoul with the Texas Rules of Civil Procedure. My role as judge is to follow the law regardless of the outcome....

On February 26, 2019, the court signed a Final Judgment which states:

On this 15th day of January, 2019, this matter came on for trial. Plaintiff ... appeared pro se. Defendant ... appeared and was represented by .... The Court granted Defendant’s Motion to Exclude Plaintiff’s Evidence and Witnesses. The Court further determined the Plaintiff had no evidence to move forward at trial, that Plaintiff failed to prosecute his case; thus, Plaintiff’s case should be and was dismissed with prejudice.

IT IS THEREFORE ORDERED, ADJUDGED and DECREED that Plaintiff Griffin recover nothing of and from Defendant Zurich.

IT IS FURTHER, ORDERED, ADJUDGED and DECREED that the previously adjudicated administrative law decisions and rulings ... are hereby affirmed.

IT IS FURTHER, ORDERED, ADJUDGED and DECREED that FINAL JUDGMENT is hereby entered in favor of Defendant American Zurich Insurance Company against Plaintiff Trent S. Griffin as to any and all claims and/or causes of actions asserted by Plaintiff Griffin in this litigation.

This is a Final Judgment. This Final Judgment resolves any and all Disputes between the parties.

All other relief not expressly granted herein is DENIED.

Griffin timely appealed. Before he did so, he filed two motions for new trial and motions for reinstatement (one original, one amended), and in each, he requested that the court issue findings of fact and conclusions of law.6 The trial court did not rule on the motions and did not issue any findings of fact or conclusions of law.7

ISSUE ON APPEAL

We begin by identifying the issue before us. An appellant’s brief is to “state concisely all issues or points presented for review” and “contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record.” See TEX. R. APP. P. 38.1(f), 38.1(i). At 100 pages, excluding attachments, Griffin’s principal brief is neither clear nor concise. His “issues presented” consists of roughly six pages of text. Generally, Griffin goes to great lengths to describe his views of the parties’ roughly seven- or eight-year dispute, and his brief is difficult, if not impossible at times, to decipher.8 However, because “[d]isposing of appeals for harmless procedural defects is disfavored,” we construe briefs “reasonably, yet liberally, so that the right to appellate review is not lost by waiver.” Weeks Marine, Inc. v. Garza, 371 S.W.3d 157, 162 (Tex. 2012) (citing Perry v. Cohen, 272 S.W.3d 585, 587 (Tex. 2008) (per curiam)). Viewed reasonably and liberally, Griffin’s brief clearly raises the only issue we address here—whether the trial court abused its discretion and committed reversible error by involuntarily dismissing his claims and entering a take-nothing judgment on February 26, 2019. We conclude the trial court did so based on the record before us.

LEGAL STANDARDS

“A court may dismiss a case for want of prosecution under either [r]ule 165a or under its common law inherent authority.” Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 850 n.18 (Tex. 2004) (citing Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628 (Tex. 1999)). A court may also, after notice and hearing, make certain orders in regard to a party’s failure to comply with proper discovery requests, including dismissing the action or proceedings with or without prejudice, a result often referred in civil cases as a “death penalty” sanction. See TEX. R. CIV. P. 215.2(b)(5); Shops at Legacy (Inland) Ltd. P’ship v. Fine Autographs & Memorabilia Retail Stores Inc., 418 S.W.3d 229, 232 (Tex. App.—Dallas 2013, pet. denied).

We review a dismissal for want of prosecution and a dismissal for discovery failures under an abuse of discretion standard. See Villarreal, 994 S.W.2d at 630 (review for dismissal for want of prosecution); Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007) (review for dismissal for discovery failure). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules and principles of law. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); see Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per curiam). We review the entire record to determine whether the imposition of sanctions constitutes an abuse of discretion. Id.

Legal principles regarding directed verdicts are also instructive here, even if not directly at issue.9 A directed verdict “is a procedural device to ask the court to render judgment without submitting a charge to the jury because there is nothing for a jury to decide.” C.B. v. Tex. Dep’t. of Family and Protective Serv., 440 S.W.3d 756, 769 (Tex. App.—El Paso 2013, no pet.). A motion for directed verdict may be made orally or in writing and shall state the specific grounds for the motion. Dillard v. Broyles, 633 S.W.2d 636, 645 (Tex. App.—Corpus Christi 1982, writ ref’d n.r.e.); TEX. R. CIV. P. 268.

“A court may instruct a verdict if no evidence of probative force raises a fact issue on the material questions in the suit.” Prudential Ins. Co. of America v. Financial Review Services, Inc., 29 S.W.3d 74, 77 (Tex. 2000) (citing Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994)). A directed verdict for a defendant may be proper “when a plaintiff fails to present evidence raising a fact issue essential to the plaintiff’s right of recovery” or “if the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff’s cause of action.” (citations omitted). Id. In other words, a court should direct a verdict when reasonable minds can draw only one conclusion from the evidence. Vance v. My Apt. Steak House, 677 S.W.2d 480, 483 (Tex. 1984); Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978).

“Ordinarily, a directed verdict should not be granted against a party before the party has had a full opportunity to present its case and has rested.” Tana Oil and Gas Co. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003) (citations omitted). Generally, it is “reversible error for the trial court to direct a verdict without allowing the plaintiff to present all of its evidence.” State Ofc. Of Risk Mgmt. v. Martinez, 300 S.W.3d 9, 11–12 (Tex. App.—San Antonio 2009, pet. denied) (citing Wedgeworth v. Kirskey, 985 S.W.2d 115, 116 (Tex. App.—San Antonio 1998, pet. denied)).

APPLICATION AND ANALYSIS

Here, the Final Judgment states that Griffin’s claims were dismissed with prejudice “for want of prosecution” and also indicates the court granted Zurich’s motion to strike witnesses and exhibits.10 While the trial court expressed an intention to comply with the rules of civil procedure, we find no legal basis in the rules for the actions the trial court took here. First, although the Final Judgement states that the court “determined [Griffin] had no evidence to move forward at trial [and] failed to prosecute his case,” the record shows otherwise. Griffin announced ready, did not withdraw that announcement, appeared for trial, and reaffirmed his readiness to proceed. Presumably, Griffin was entitled to testify on his own behalf even if he had not identified himself as a fact witness in response to written discovery. See TEX. R. CIV. P. 193.6(a) (permitting testimony of named party even though not identified in discovery).11

Second, the record lacks any indication that Griffin was provided with notice that a want-of-prosecution dismissal might occur. Such notice is required to dismiss for want of prosecution under either the court’s inherent common law authority or under rule 165a.12 See Villarreal, 994 S.W.2d at 630 (“party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution under ether [r]ule 165a or its inherent authority” and failure to do so “requires reversal”); TEX. R. CIV. P. 165(a) (notice and hearing required for dismissal for want of prosecution by party’s failure to appear).

Third, the record lacks any indication that Griffin was provided with notice to justify what amounted to a death-penalty sanction under rule 215.2(b)(5) if, in fact, the Final Judgment is viewed in the discovery sanctions context. See TEX. R. CIV. P. 215.2(b)(5) (listing dismissal as one of several options court may take “after notice and hearing”).

Fourth, even if Griffin had received notice under rule 215.2(b)(5), the record lacks any indication that the court considered and provided at least some explanation why lesser sanctions were not appropriate. See Shops at Legacy, 418 S.W.3d at 233 (trial court “must analyze the available sanctions and offer a reasoned explanation as to the appropriateness of the sanction imposed”) (citing Cire v. Cummings, 134 S.W.3d 835, 840 (Tex. 2004)). Death penalty sanctions “should be used as an initial sanction only in the most egregious and exceptional cases ‘when they are clearly justified and it is fully apparent that no lesser sanctions would promote compliance with the rules’ ”) Id. (quoting GTE Commc’ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993)).

Fifth, and finally, the practical effect of the court’s final judgment here was to prematurely direct a verdict in appellee’s favor, without ever allowing Griffin to testify, make an offer of proof, or otherwise present his case.

Based on this record and the legal standards discussed herein, we conclude that the dismissal of Griffin’s case with prejudice for want of prosecution constituted an abuse of discretion and reversible error.

CONCLUSION

We reverse the court’s final judgment and remand the case for further proceedings consistent with this opinion.

Schenck, J., concurring.

Footnotes

1

See Griffin v. Am. Zurich Ins. Co., No. 05-14-01510-CV, 2016 WL 4039257 (Tex. App.—Dallas July 26, 2016, pet. denied) (mem. op.) (dismissing appeal for want of jurisdiction because the trial court had not yet entered a final order and thus had no jurisdiction to consider appellant’s complaints regarding the trial court’s summary judgment rulings).

2

The original petition was Griffin’s only pleading at the time of our prior opinion. Since remand, he has amended his petition several times. Based on the record before us, his fourth amended petition is his live pleading, and in it, he asserts twenty-three separate counts as claims. We make no comment here on the merits of Griffin’s claims, his ability to pursue them, or his right to the relief he requests.

3

When the court alluded to all of the years that had elapsed, the court inquired about why Zurich was not ready, and Zurich’s counsel answered, “Because I have orders disposing of the issues.” The court then stated, “No, you haven’t and we let your office – in fact, you can make your record. We’re proceeding to trial.”

4

We do not have any of the discovery materials before us and do not decide any issues regarding the merits of Zurich’s objections.

5

Four days before trial, Griffin filed a motion for leave to file a fifth amended petition. The trial court denied the motion on January 15, explaining that the denial was due to “timeliness” and stating, “Fourth amendment stands.” Thus, at the time of the final judgment, the parties’ live pleadings consisted of Griffin’s fourth amended petition and Zurich’s fourth amended general denial.

6

In the first document, Griffin included a request for findings of fact and conclusions of law, while the second document included a notice of past-due findings of fact and conclusions of law.

7

Griffin mentions the trial court’s lack of findings and conclusions in his brief, but he does not appear to present this as a point of error on appeal. Even if he had, under the circumstances here, the trial court’s inaction regarding those requests was not improper because the case was not tried without a jury and because the trial court did not conduct an evidentiary hearing. See TEX. R. CIV. P. 296 (party may request findings of fact and conclusions of law in cases tried without a jury); Belohlavy v. Belohlavy, No. 05-98-02096-CV, 2001 WL 804507, at *2 (Tex. App.—Dallas 2001, no pet.) (mem. op.) (noting case is “tried” for rule 296 purposes when court holds evidentiary hearing).

8

With attachments, Griffin’s principal brief is 1,627 pages long and contains a single item under “argument” in the brief’s table of contents.

9

Although the record does not indicate that Zurich formally moved for a directed verdict or that the trial court granted one, we discuss the general requirements for such motions because the court’s final judgment had the same practical effect on Griffin’s claims as it would have if the court had granted a motion for directed verdict immediately prior to the beginning of voir dire, at least if we view the final judgment as a judgment on the merits in light of its “take nothing” language. See, e.g. Qaddura v. Indo-European Foods, Inc., 141 S.W.3d 882, 894 (Tex. App.—Dallas 2004, pet. denied) (“A take nothing judgment, however, is a judgment on the merits, and is inconsistent with a dismissal without prejudice.”) (citing Garcia–Marroquin v. Nueces Cty. Bail Bond Bd., 1 S.W.3d 366, 379 n.8 (Tex. App.-Corpus Christi–Edinburgh 1999, no pet.)). Because other language in the final judgment indicates the court dismissed Griffin’s claims for want of prosecution, the court’s dismissal would be inconsistent with a ruling on the merits and would be a dismissal without prejudice. See Gracey v. West, 422 S.W.2d 913, 917 (Tex. 1968) (“The judgment of dismissal of the cause for want of prosecution is not a judgment on the merits of the cause.”); Harris Cnty. v. Gamblicher, 479 S.W. 3d 514, 516 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“a dismissal for want of prosecution is not a determination on the merits, and therefore dismissal with prejudice in such circumstances is improper”) (citations omitted).

10

In the January 15, 2019 proceedings, Zurich orally moved to strike all witnesses. The record is less clear regarding Zurich’s objections to Griffin’s exhibits, but for purposes of this opinion, we assume without deciding that Zurich also objected to Griffin’s exhibits and that the court granted both motions.

11

Additionally, and contrary to the trial court’s suggestion otherwise, the trial court was not required to preclude Griffin, a party, from testifying on his own behalf as to his various causes of action, even if Zurich established that Griffin failed to timely list himself as a witness. See Decision Consultants, Inc. v. Zghyer, No. 05-97-01486-CV, 2000 WL 1801139, *1 (Tex. App.—Dallas Dec. 8, 2000) (not designated for publication) (concluding pro se party’s pleading with narrative of the facts “was sufficient to communicate [the party’s] identity and his personal knowledge of relevant facts and overruling opponent’s argument on appeal that trial court erred in permitting the pro se party to testify when he had not identified himself as a person with knowledge of facts in response to an interrogatory).

12

Rule 165a does not apply here, as Griffin appeared for trial and announced ready, and there is no indication in the record that his case was placed on a dismissal docket for any failure to be disposed of within time standards promulgated by the Supreme Court’s administrative rules. See TEX. R. CIV. P. 165a. We mention this simply to note that even if rule 165a did apply, the rule’s requirements were not satisfied, such as notice before dismissal and a hearing in response to a timely motion to reinstate. See id.

Court of Appeals of Texas, Dallas.

AMANDA LYNN POSEY-GLYNN, Appellant

v.

CAMDEN DEVELOPMENT, INC., Appellee

No. 05-19-01454-CV

|

Filed December 10, 2020

On Appeal from the 471st Judicial District Court

Collin County, Texas

Trial Court Cause No. 471-05542-2018

Before Justices Whitehill, Pedersen, III, and Reichek

Opinion by Justice Reichek

MEMORANDUM OPINION

AMANDA L. REICHEK JUSTICE

*1 AFFIRMED and Opinion Filed December 10, 2020

Amanda Lynn Posey-Glynn appeals the trial court’s no-evidence summary judgment dismissing her claims for workplace discrimination and retaliation. Bringing four issues, Posey-Glynn generally contends the trial court erred in granting Camden Development, Inc.’s motion because she presented sufficient evidence to establish a prima facie case for each of her causes of action. Because we conclude Posey-Glynn failed to meet her summary judgment burden, we affirm the trial court’s judgment.

Background

Posey-Glynn began working for Camden at the Camden Panther Creek apartment complex in Frisco, Texas, on November 9, 2016. Posey-Glynn was employed as a Make Ready Technician and her responsibilities included various maintenance tasks and preparing vacant apartments for new tenants.

On April 14, 2017, Posey-Glynn was injured as she and a co-worker were moving a washing machine up a flight of stairs. According to Posey-Glynn, the washing machine slipped off a dolly and she caught it, hurting her left side. She did not fall, however, and they completed moving the washer. Posey-Glynn then continued working her shift, but left work one hour early. Posey-Glynn informed Camden that she had been injured the next day.

When Posey-Glynn informed her supervisor about the accident, she was instructed to see a doctor. A physician at CareNow diagnosed her with cervical neck strain and spasms of the back and neck. An X-ray of Posey-Glynn’s spine was considered normal for her age. She was given medication and released to return to work the same day with restrictions on kneeling, squatting, and lifting expected to last one week.

Camden’s work-related injury policy states the following:

Camden has a Return to Work program that facilitates the earliest possible return of workers injured on the job to the workplace for the purpose of performing meaningful, productive work within realms of their physical capabilities. The Return to Work Policy offers a transitional return to work and is intended to be time-limited and temporary. The maximum time allowed for transitional duty is six months.

Under the policy, an injured employee may participate in the Return to Work program if the employee was not “taken off work” by her treating physician and Camden could accommodate the employee’s work restrictions. Camille Churchill, Camden’s workers’ compensation manager, confirmed with the community manager that Posey-Glynn’s medical restrictions could be accommodated when she returned.

Posey-Glynn visited CareNow several times over the course of the following week complaining of continued pain and an allergic reaction to the medication she was given. Although she was released to light duty work, Posey-Glynn was placed on medical leave by Camden beginning on April 20.

Posey-Glynn returned to work on May 12 with restrictions on bending, stooping, kneeling, squatting, and overhead reaching. She was further limited to lifting no more than ten pounds and working no more than four hours a day. These restrictions were expected to last through May 25.

*2 On May 16, Sue Evans, a nurse assigned to manage Posey-Glynn’s claim by Camden’s workers’ compensation insurance carrier, sent an email to Churchill stating that MRI reports for Posey-Glynn showed no significant spinal cord problems and “her diagnosis remains cervical and lumbar strain.” Evans further stated that Posey-Glynn was being referred to a therapy facility in Frisco and she would be choosing a new treating provider from a list Evans had sent her.

Shortly after receiving this email, Churchill sent an email to others working at the insurance company stating she had concerns with the manner in which Evans was handing Posey-Glynn’s claim. Churchill referenced earlier discussions about Camden’s displeasure with how Evans had handled another claim and she requested that a new nurse be assigned to Posey-Glynn. Later emails indicate Linda Sanchez was assigned as Posey-Glynn’s new claim manager.

On June 12, Posey-Glynn was reassessed at CareNow and was again released to light duty work. Her restriction on lifting was modified to up to twenty pounds. She was additionally restricted from doing any pushing, pulling or overhead reaching, and her maximum work hours per day were reduced to two. An MRI was ordered to be done of Posey-Glynn’s left shoulder.

The next day, Churchill emailed Sanchez stating she had contacted Posey-Glynn’s manager, Randi Teube, to see if the new restrictions, including working only two hours per day, could be accommodated. Churchill stated she was concerned that Posey-Glynn was not improving and there was a possibility she would need to be taken off work again. Teube responded to Churchill stating, “I don’t see how this can work for us. We are heading into our busy season and we just received a 2 week notice from our maintenance tech, so we are already short staffed.” Churchill replied, “Hopefully we will know more once she has the MRI performed.” Three days later, Churchill confirmed with Camden’s district manager that Posey-Glynn was working only two hours per day and her restrictions were being accommodated.

On June 20, the MRI of Posey-Glynn’s left shoulder was performed. The scan showed no tears and only mild tendinosis and bursitis. Posey-Glynn’s work restrictions were again modified to prohibit any reaching, overhead reaching, or lifting with her left arm. The restrictions were expected to last one week.

On June 22, Sanchez emailed Churchill stating that she had received a call from Posey-Glynn complaining that her restrictions were not being accommodated. Posey-Glynn told Sanchez that her supervisor told her to wash windows, which required her to reach over her head. She stated her shoulder pain worsened overnight and she was unable to go to work the next day. Sanchez asked Churchill to let her know if Posey-Glynn’s restrictions could not be accommodated going forward.

On July 5, Posey-Glynn was again evaluated at CareNow. The medical notes state that Posey-Glynn was upset that her job was “not honoring restrictions.” In addition to her normal medications, Posey-Glynn was given a shoulder sling for her left arm.1 The restrictions on reaching, overhead reaching, and lifting with her left arm were continued and her maximum hours per day of work were limited to four until July 26.

*3 On July 6, Teube emailed Churchill saying that she and a co-worker had spoken with Posey-Glynn and informed her that, since her arm was now in a sling, they could no longer accommodate her restrictions. Teube further stated in the email that they understood Posey-Glynn was scheduled to be re-evaluated on 7/26/17 and “it is our hope that she will be released 100% so she is able to come back to work.”

Camden’s benefits administrator, Becky Martinez, sent Posey-Glynn a letter stating that, due to the physical demands of the Make Ready Technician position, Camden could no longer accommodate the doctor’s restrictions on her ability to work. Martinez told Posey-Glynn she was eligible for a Non-Family Medical Leave Act leave of absence beginning on July 7. Martinez further stated that her leave of absence did not guarantee Posey-Glynn’s job would be restored at the end of the leave period and her job could be eliminated or filled by another person during that time. In the event her job was eliminated or filled, Posey-Glynn could apply for a comparable position within the company. The maximum amount of leave time for which Posey-Glynn was eligible was four weeks based on her tenure with Camden. The leave period could be extended by her manager, however, until a doctor released Posey-Glynn to return to work.

On July 20, Teube emailed Churchill to discuss posting Posey-Glynn’s position as available if she was not released back to work without restrictions following a scheduled doctor’s visit on July 26. Churchill responded that, although the company could not accommodate the work restrictions Posey-Glynn was given at her last appointment, “this does not mean that we will not accommodate any restrictions” and it was not necessary that Posey-Glynn be released to full-duty work.

Following her July 26 appointment, Posey-Glynn’s work restrictions were increased rather than decreased. The restrictions now included no pushing, pulling, grasping, or squeezing with her left arm in addition to no reaching, overhead reaching, or lifting. In addition, Posey-Glynn was instructed to wear a “splint/cast” and her work hours continued to be limited to four per day.

In response to the increased restrictions, Rosa Cameron, Camden’s director of benefits, emailed several employees including Churchill, Teube, and Martinez regarding Posey-Glynn’s position. Cameron stated that “[s]ince we are unable to accommodate her restrictions, Amanda will remain on leave status.” Cameron further stated that Posey-Glynn would exhaust her leave time on August 4, but because her next doctor’s appointment was scheduled for August 10, the company was extending her leave until then with the “hope that her restrictions change enough for her to return to work.” Cameron concluded by stating she understood they were extremely busy and short staffed at the community and, because Posey-Glynn was not eligible for a Family Medical Leave Act leave of absence, they could begin looking for someone to replace her.

On August 9, Churchill emailed Teube confirming Posey-Glynn’s appointment to be re-evaluated by her doctor on the 10th. Churchill stated that “if she is released with restrictions you are able to accommodate, then she will return to work. If she is released with restrictions you are not able to accommodate, then her status will change from LOA to Terminated.”

Posey-Glynn’s medical records show that, following her August 10 evaluation, Posey-Glynn’s doctor continued restrictions on her use of her left arm including reaching, overhead reaching, and any lifting or carrying. Posey-Glynn was further restricted to working only six hours per day.

*4 Churchill called Posey-Glynn the next day and, according to Posey-Glynn, told her she was being terminated “because [she] did not get well quickly enough.” A follow-up letter stated that based on her current medical restrictions, she was “unable to perform the physical demands of [her] position as a Make Ready Technician.” The letter further stated that Camden could not accommodate her restrictions “due to the business needs of the community.” The letter informed Posey-Glynn that because she had exhausted her leave, she would be terminated unless she (1) qualified under the Americans with Disabilities Act and applicable state laws and (2) notified Camden of her desire to return to work with reasonable accommodations that would not impose an undue hardship on Camden’s business operations. The record contains no response to this letter from Posey-Glynn.

Posey-Glynn filed this lawsuit against Camden in April 2018, asserting claims under chapter 21 and section 451.001 of the Texas Labor Code. In her petition, Posey-Glynn asserted she was disabled and Camden discriminated against her “in the terms, conditions, and privileges of her employment,” and by retaliating against her and terminating her employment. Posey-Glynn further asserted she was discharged because she filed a workers’ compensation claim in good faith.

Camden filed a combined traditional and no-evidence motion for summary judgment contending Posey-Glynn was terminated solely because she exhausted all her paid and unpaid leave of absence time and, at the time of her termination, she had work restrictions that Camden could not accommodate. Camden argued Posey-Glynn had no evidence to show she was disabled, that she was qualified for her position as a Make Ready Technician, or that she was retaliated against for engaging in a protected activity.

Posey-Glynn responded that she met the burden of showing she has a disability because she had a shoulder strain and cervical strain. She further contended she had “a record of a disability and she may also be perceived as being disabled.” She stated her job qualifications were demonstrated by the fact that she had worked in the position of Make Ready Technician before her injury. With respect to her retaliation claim, Posey-Glynn argued Camden’s proffered reason for her termination was false and evidence of a retaliatory motive was shown by Camden’s knowledge of her workers’ compensation claim, the company’s negative attitude towards her injured condition, and its failure to adhere to established company policies. She further asserted that Camden failed to accommodate her disability after she complained about being forced to work outside her medical limitations.

Posey-Glynn attached over 130 pages of exhibits to her response, including her declaration, her medical records, emails and letters from Camden employees, and Camden’s Return to Work policy. Nowhere in her response, however, does Posey-Glynn refer to any of the evidence she attached or explain how the exhibits support her claims or create an issue of fact. In its reply, Camden noted that Posey-Glynn failed to support any of her arguments with references to evidence. Camden further noted that, although Posey-Glynn argued that Camden refused to accommodate her alleged disability, she had not asserted a claim for failure to accommodate in her petition.

On October 24, 2019, the trial court granted Camden’s motion for summary judgment. In its order, the court stated that “[a]fter reviewing the Motion, the response – which did not identify, cite to, or explain any of the unlabeled documents attached thereto – and reply, as well as the pleadings on file with the Court, it is the Court’s opinion that the No-Evidence Motion should be GRANTED.” The court dismissed Posey-Glynn’s claims in their entirety and assessed all costs of the action against her. Posey-Glynn then brought this appeal.

Analysis

*5 In four issues, Posey-Glynn contends the trial court erred in granting the no-evidence summary judgment because she established a prima facie case for each of her claims. To defeat a no-evidence motion for summary judgment, the non-movant must produce evidence raising a genuine issue of material fact on each element of the claim or defense challenged by the movant. S.W. Elec. Power Co. v. Grant, 73 SW.3d 211, 215 (Tex. 2002). In determining whether the non-movant has successfully carried their burden, neither the trial court nor the appellate court is required to wade through a voluminous record in search of evidence to support the respondent’s argument that a fact issue exists. Bich Ngoc Nguyen v. Allstate Ins. Co., 404 S.W.3d 770, 776 (Tex. App.—Dallas 2013, pet. denied). The respondent must specifically identify the supporting proof on file that it seeks to have the trial court consider. Id. A trial court does not abuse its discretion by not considering evidence to which the respondent does not specifically direct the court’s attention or for which the respondent fails to provide guidance on how the evidence supports her claim. See id. at 777 & n.4.

Posey-Glynn’s response to Camden’s motion for summary judgment failed to identify or analyze any of the evidence she was relying upon to support the challenged elements of her claims. On appeal, Posey-Glynn argues discussion of her evidence was unnecessary because the 130 pages of exhibits were “laid out simply and chronologically” and her medical records were “self-explanatory.” Although Posey-Glynn may view her case as being self-evident, the trial court was not required to determine on its own exactly how Posey-Glynn viewed her evidence as supporting her claims or which exhibits she believed created a fact issue on the elements challenged by Camden. See Levine v. Unique Beverage Co., No. 05-11-01467-CV, 2013 WL 1281896, at *3 (Tex. App.—Dallas Mar. 19, 2013, pet. denied) (mem. op.) (trial court not required to search through 98 pages of exhibits when non-movant has burden of pointing out what evidence supports responsive issues); In re A.J.L., No. 14-16-00834-CV, 2017 WL 4844479, at *4–5 (Tex. App.—Houston [14th Dist.] Oct. 26, 2017, no pet.) (mem. op.) (trial court not required to search through 114 pages of exhibits attached to response for evidence raising fact issue without guidance from non-movant).

Even on appeal, Posey-Glynn does not point to any evidence that, at the time her employment was terminated, she was qualified for the position of Make Ready Technician – one of the elements Camden challenged. To establish a prima facie case of disability discrimination under chapter 21 of the labor code, a plaintiff must show that (1) she has a disability, (2) she is qualified for the job, and (3) she suffered an adverse employment decision because of her disability. Donaldson v. Tex. Dept. of Aging & Disability Servs., 495 S.W.3d 421, 436 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). To raise a fact issue on her qualifications, Posey-Glynn was required to present evidence showing either (1) she could perform all the essential job functions of a Make Ready Technician with or without modifications or accommodations or (2) that some reasonable accommodation by Camden would enable her to perform those job functions. Id. at 437.

In response to Camden’s motion for summary judgment, Posey-Glynn argued simply that she was “clearly qualified for her job, she had worked for Camden for many months before her injury.” But Posey-Glynn failed to provide evidence and did not address, either in the trial court or on appeal, her ability to perform the essential functions of a Make Ready Technician after her injury and at the time she was terminated. Nor has she addressed or provided evidence to show what reasonable modifications or accommodations Camden could have provided that would have allowed her to perform all the essential functions of the job. Although Camden allowed Posey-Glynn to work within her medical restrictions during the transitional duty period provided for in the company’s Return to Work Policy, this transitional period was, by definition, temporary and not intended as a permanent accommodation of Posey-Glynn’s restrictions. Posey-Glynn provided no evidence that she performed all the essential functions of her job during the transitional period. Indeed, the evidence she provided indicated that she did not, and could not, perform all aspects of her job during that time.

*6 Posey-Glynn asserts that she pleaded a failure to accommodate claim because she “pled a case of disability discrimination, thereby necessarily including accommodation by definition.” Although the elements of a disability discrimination claim and a failure-to-accommodate claim overlap to some extent, the latter is not subsumed within the former. See id. at 439. Even assuming Posey-Glynn’s petition could be read to assert a failure-to-accommodate claim, she was still required to provide summary judgment evidence sufficient to create a fact issue on whether she was qualified to do the job at the time she was terminated. See id. The elements of an accommodation claim are (1) the plaintiff has disability, (2) the employer had notice of the disability, (3) the plaintiff was qualified for the position with reasonable accommodations, and (4) the employer refused to make such accommodations. Id. It was Posey-Glynn’s burden to show that an accommodation of her alleged disability existed and that such an accommodation was reasonable. Hagood v. Cty. of El Paso, 408 S.W.3d 515, 525 (Tex. App.—El Paso 2013, no pet.). Again, Posey-Glynn failed to present any evidence of what reasonable accommodations Camden could have provided that would have allowed her to perform all the essential functions of a Make Ready Technician at the time her employment was terminated. The termination letter sent to Posey-Glynn specifically informed her that if she wished to return to work with a reasonable accommodation that would not impose an undue hardship on Camden’s business operations, she needed to notify Camden. Posey-Glynn provided no evidence that she ever responded to the letter. According to Posey-Glynn’s own declaration, the only accommodation she requested from Camden was that she not be required to perform any job tasks that conflicted with her medical restrictions. We conclude the trial court properly granted Camden’s motion for no evidence summary judgment on Posey-Glynn’s disability discrimination claims.

Posey-Glynn’s claims of retaliation similarly fail for lack of evidence. Although unclear from her petition, Posey-Glynn contended in her response to Camden’s motion for summary judgment that she had asserted a claim for retaliation under chapter 21 of the labor code. Posey-Glynn stated this claim was based on Camden’s action of placing her on a leave of absence after she complained to her workers’ compensation claim supervisor that Camden was requiring her to perform job duties that did not fall within her medical restrictions. Actionable retaliation exists when an employer makes an adverse employment decision against an employee who voices opposition to a discriminatory practice made unlawful under chapter 21. Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 823 (Tex. App.—Houston [1st Dist.] 2012, pet. denied). Posey-Glynn cites no authority, and provides no argument, that the conduct about which she complained to her claim supervisor was a discriminatory practice under chapter 21 or that her complaint would have put Camden on notice of any unlawful discrimination. See Alamo Heights Ind. Sch. Dist. v. Clark, 544 S.W.3d 755, 786 (Tex. 2018) (employee’s complaint must, at minimum, alert employer that unlawful discrimination is at issue). Nor does she cite any authority or provide any argument for the proposition that being placed on a leave of absence because she could not fully perform the job duties of a Make Ready Technician constituted an adverse employment decision. Although Camden’s Return to Work program allowed employees to temporarily work within their medical restrictions following a job-related injury when their restrictions could be accommodated, Camden was not required to provide such work, particularly if business demands made transitional work impractical. See Donaldson, 495 S.W.3d at 443 (failure to allow employee to work within medical restrictions when employee could not perform essential duties of job was not adverse employment decision). As discussed above, it was Posey-Glynn’s burden to produce evidence that she could fully perform the duties of a Make Ready Technician, with or without reasonable accommodations, and she failed to do so.

Posey-Glynn also failed to present evidence to support her claim for retaliatory discharge under section 451.001 of the labor code. Section 451.001 states that a person may not discharge or in any other manner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith. TEX. LAB. CODE ANN. § 451.001. To support her claim that her discharge was retaliatory, Posey-Glynn had the burden of demonstrating a causal link between the termination of her employment and her filing of the claim. Benners v. Blanks Color Imaging, Inc., 133 S.W.3d 364, 369 (Tex. App.—Dallas 2004, no pet.). Circumstantial evidence sufficient to establish a causal connection includes: (1) knowledge of the compensation claim by the person terminating the employee; (2) expression of a negative attitude toward the employee’s injured condition; (3) failure to adhere to established company policies; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the reason for the discharge was false. Vallance v. Irving C.A.R.E.S., Inc., 14 S.W.3d 833, 837 (Tex. App.—Dallas 2000, no pet.); Love v. Geo Group, Inc., No. 04-12-00231-CV, 2013 WL 1223870, at *3 (Tex. App.—San Antonio Mar. 27, 2013, no pet.) (mem. op.).

*7 In this case, it is undisputed that Churchill, whom Posey-Glynn characterizes as the decision-maker, had knowledge of Posey-Glynn’s worker’s compensation claim. This fact standing alone, however, is insufficient to raise a fact issue on retaliation. Vallance, 14 S.W.3d at 837. Knowledge of the claim is simply a factor to consider along with the remaining evidence. Id. Where a plaintiff fails to produce any probative evidence in the remaining categories, a no-evidence summary judgment is appropriate. Love, 2013 WL 1223870, at *3.

In support of her assertion that there was a negative attitude towards her injured condition, Posey-Glynn points to her immediate supervisor, Teube, asking her to perform tasks outside her medical restrictions. To be probative of retaliation, however, the negative attitude must be expressed by an individual with authority over the employment decision at issue. Id. at *4. Posey-Glynn identified Churchill as the person who terminated her employment and she did not argue or point to any evidence that Teube was involved in the decision. Accordingly, Teube’s actions are not probative of any retaliatory motive in the termination decision. See id. (supervisors’ negative attitude towards medical restrictions was not evidence of retaliatory motive where supervisors were not involved in termination decision).

As for Churchill, the evidence provided by Posey-Glynn showed that Churchill consistently attempted to ensure that Posey-Glynn’s medical restrictions were accommodated to the extent possible during the transitional Return to Work period. When the business needs of the community during its “busy season” required her to work beyond her physical capabilities, Posey-Glynn was placed on a leave of absence.

Posey-Glynn states that Churchill’s negative attitude was demonstrated by her request that a new workers’ compensation claim manager be assigned to handle Posey-Glynn’s claim. Posey-Glynn suggests Churchill made this request because the original claim manager, Evans, was helping Posey-Glynn find a new physician. Although an email exchange between Evans and Churchill shows that Evans provided Posey-Glynn with a list of possible new treating physicians, nothing in the record suggests that this was because Posey-Glynn had requested a new doctor or that Evans’s assistance in finding Posey-Glynn a new medical provider was the basis of Churchill’s request for a new claim manager. Posey-Glynn’s declaration states that she saw “varying doctors” during her course of treatment. She cites no evidence that she expressed dissatisfaction with any of them.

In an email to the insurance carrier, Churchill stated she had concerns with the way Evans was handling Posey-Glynn’s claim, but she gave no indication of the nature of those concerns. In the same email, Churchill referenced that she had concerns with how Evans managed another claim, indicating her issues were with Evans, not Posey-Glynn. Accordingly, Posey-Glynn’s evidence fails to demonstrate Churchill had a negative attitude towards Posey-Glynn’s injury or her compensation claim.2

*8 Posey-Glynn next contends that Camden failed to follow its own Return to Work Policy because she was not allowed the full six months of transitional work provided by the program. The policy states that the “maximum time allowed for transitional duty is six months.” The policy does not, however, provide a minimum amount of time that must be provided for transitional work. Nor does the policy require that an injured employee be provided any transitional work if the employee’s work restrictions cannot be accommodated. Because the policy does not mandate that injured employees be given six months of transitional work, Posey-Glynn did not provide any evidence that Camden failed to follow its own policies.

Finally, Posey-Glynn provided no evidence regarding how Camden treated its other employees, let alone employees who were similarly situated to her. Nor did she provide any evidence to show that the reason given for her termination – that she was unable to meet the physical demands of her position – was false. An employer is permitted to terminate an employee who sustains a job-related injury if it ultimately appears that, due to the nature of the injury, the employee can no longer perform the essential functions of the position. See Garcia v. Allen, 28 S.W.3d 587, 601 (Tex. App.—Corpus Christi–Edinburg 2000, pet. denied). Posey-Glynn provided no evidence she could perform the essential functions of her position at the time her employment was terminated.

Based on the foregoing, we conclude the trial court properly granted Camden’s motion for no-evidence summary judgment on Posey-Glynn’s retaliation claims.

We affirm the trial court’s judgment.

Footnotes

1

Although wearing the sling was not made a work restriction until July 26, Posey-Glynn’s medical records indicate she was given a sling for her left shoulder at her July 5 examination.

2

Posey-Glynn additionally references an email from Teube to Churchill sent two weeks after Posey-Glynn’s employment was terminated stating that Posey-Glynn had “verbally committed to move out of her apartment on 8/31/2017.” Posey-Glynn suggests this email shows Churchill’s negative attitude because she was “forcing Posey-Glynn to move out of her apartment.” We disagree. This email does not state that Posey-Glynn was being “forced” to move out of her apartment by Churchill or anyone else. To the extent it could be read that way, the email also does not suggest that Posey-Glynn’s moving out was anything other than a consequence of her no longer working as a maintenance technician for the apartment complex. Reading this evidence in the light most favorable to Posey-Glynn, the email, standing alone, is not sufficient to create a fact issue on her claim for retaliatory discharge.

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