Court of Appeals of Texas, Texarkana.

ROSANNE M. BARKER, Appellant

v.

SAM HOUSTON STATE UNIVERSITY, Appellee

No. 06-22-00076-CV

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Submitted: March 21, 2023

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Decided: June 22, 2023

On Appeal from the 278th District Court

Walker County, Texas

Trial Court No. 1929437

Before Stevens, C.J., van Cleef and Rambin, JJ.

Memorandum Opinion by Chief Justice Stevens

MEMORANDUM OPINION

Scott E. Stevens Chief Justice

*1 Roseanne M. Barker filed a suit against her employer, Sam Houston State University (SHSU), seeking damages for personal injuries that she allegedly suffered when she was struck by a SHSU vehicle driven by a SHSU employee.¹ SHSU asserted a plea to the jurisdiction, arguing on various grounds that the trial court lacked subject-matter jurisdiction over the case because its sovereign immunity could not be waived. After a hearing, the trial court granted SHSU’s plea and dismissed Barker’s claims with prejudice.

On appeal, Barker contends that the trial court erred in finding, as a matter of law, that Barker was in the course and scope of her employment at the time she was injured. Because we find that Barker was in the course and scope of her employment at the time of her injury, we affirm the trial court’s judgment.

I. Factual and Procedural Background

On October 11, 2017, Roseanne Barker, a history professor at SHSU, was scheduled to teach a 9:00 a.m. class in Building AB4 on the SHSU campus. Before class started, Barker parked her car in the SHSU parking lot across the street from Building AB4, even though she was not permitted to park there. She finished teaching her class and left the classroom sometime after 10:00 a.m. Because she was not scheduled to teach another class for “about two hours,” she headed to the parking lot.

Barker alleged that she was walking to the parking lot to move her car to another campus parking area where she was permitted to park. As she crossed Avenue I outside of Building AB4 on the way to her car, she was struck by a white Chevrolet Colorado truck. The truck was owned by SHSU and was being operated by Johnny Boston, a SHSU employee. It is undisputed that Boston was driving the truck within the course and scope of his employment for SHSU at the time of the accident. The SHSU Police Department responded to and investigated the accident.

As a result of the accident, Barker was injured and required medical care. She also missed time from work.

About four months after the accident, Barker filed a workers’ compensation claim, and he received workers’ compensation benefits for the injuries she sustained. Sometime after, Barker’s personal health insurance administrator, Blue Cross Blue Shield (BCBS), sent an information request to Barker requesting verification about her injuries. Barker informed BCBS that she had filed a workers’ compensation claim with her employer and that the claim had been accepted. Barker received a total of $38,058.26 in workers’ compensation benefits.

On September 24, 2019, Barker filed suit against SHSU asserting a claim of negligence and seeking to recover personal injury damages for the injuries she suffered in the accident. SHSU answered and asserted a plea to the jurisdiction on the grounds of sovereign immunity. SHSU argued that the trial court lacked subject-matter jurisdiction over Barker’s claims because SHSU’s sovereign immunity from suit and liability could not be waived based on (1) the exclusive remedy provision (commonly known as the workers’ compensation bar) in Section 408.001(a) of the Texas Labor Code, (2) Barker’s failure, upon being hired, to waive her workers’ compensation coverage under Section 406.034 of the Texas Labor Code, (3) the equitable election of remedies doctrine, and/or (4) Barker’s failure to exhaust her administrative remedies before the Texas Department of Insurance, Division of Workers’ Compensation. After a hearing, the trial court granted SHSU’s plea to the jurisdiction and dismissed Barker’s lawsuit without specifying the grounds upon which it was granted. Barker appealed.

II. Plea to the Jurisdiction

*2 “A plea to the jurisdiction is a dilatory plea” by which a party challenges a court’s authority to determine the subject matter of the action. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). “We review a trial court’s ruling on a plea to the jurisdiction de novo.” Tex. A&M Univ., Mark Hussey, Ph.D. v. Starks, 500 S.W.3d 560, 567 (Tex. App.—Waco 2016, no pet.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004) (plurality op.)).

“The plaintiff bears the initial burden to allege facts affirmatively demonstrating the trial court’s jurisdiction to hear a case.” Tex. Dep’t of Transp. v. Ingram, 412 S.W.3d 129, 134 (Tex. App.—Texarkana 2013, no pet.). After the party challenging subject-matter jurisdiction “asserts and supports with evidence that the trial court lacks subject[-]matter jurisdiction,” the plaintiff is required “to show that there is a disputed material fact regarding the jurisdictional issue.” Id. at 228 (citing Huckabee v. Time Warner Entm’t Co. L.P., 19 S.W.3d 413, 420 (Tex. 2000)).

When a plea to the jurisdiction challenges the existence of jurisdictional facts, a trial court’s review “mirrors that of a traditional summary judgment motion.” Mission Consol. Indep. Sch. Dist. v. Garcia, 372 S.W.3d 629, 635 (Tex. 2012). “If the evidence creates a fact question regarding the jurisdictional issue, then the plea to the jurisdiction must be denied.” Starks, 500 S.W.3d at 567 (quoting Kirby Lake Dev., Ltd. v. Clear Lake City Water Auth., 321 S.W.3d 1, 3–4 (Tex. App.—Houston [14th Dist.] 2008), aff’d, 320 S.W.3d 829 (Tex. 2010)). “However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, then the court rules on the plea to the jurisdiction as a matter of law.” Id. “In ruling on a plea to the jurisdiction, a court does not consider the merits of the parties’ claims.” Id.; see Cnty. of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002).

III. Sovereign Immunity

“In Texas, 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 consents to suit.” Miranda, 133 S.W.3d at 224. The State’s sovereign immunity extends to “various divisions of state government, including agencies, boards, hospitals, and universities.” Tooke v. City of Mexia, 197 S.W.3d 325, 330 n.11 (Tex. 2006). “[S]overeign immunity, unless waived, includes immunity from suit and immunity from liability.” Richards v. Tex. A&M Univ. Sys., 131 S.W.3d 550, 556 (Tex. App.—Waco 2004, pet. denied) (citing Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692, 696 (Tex. 2003)). “In the absence of waiver of immunity from suit, a trial court lacks subject-matter jurisdiction in a suit against the State.” Id. (citing Tex. Dep’t of Transp. v. Jones, 8 S.W.3d 636, 638 (Tex. 1999) (per curiam)).

IV. Texas Tort Claims Act

“The [Texas] Tort Claims Act [(TTCA)] provides a limited waiver of sovereign immunity” and “allow[s] suits to be brought against governmental [entities] only in certain, narrow[ ] ... circumstances.” Tex. Dep’t of Crim. Just. v. Miller, 51 S.W.3d 583, 587 (Tex. 2001); see TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. We “look to the terms of the [TTCA] to determine the scope of its waiver” and then “consider the particular facts of the case ... to determine whether [the case] comes within that scope.” Miller, 51 S.W.3d at 587. “[F]or immunity to be waived under the [TTCA,] the claim must arise under one of the three specific areas of liability for which immunity is waived and the claim must not fall under one of the exceptions from waiver.” Durbin v. City of Winnsboro, 135 S.W.3d 317, 320 (Tex. App.—Texarkana 2004, pet. denied). Under one of the areas of waiver applicable here,

*3 [a] governmental unit in the state is liable for:

(1) property damage, personal injury, and death proximately caused by the wrongful act or omission or the negligence of an employee acting within his scope of employment if:

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

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

(2) 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.

TEX. CIV. PRAC. & REM. CODE ANN. § 101.021.

Here, it is undisputed that SHSU is a governmental unit. See City of Mexia, 197 S.W.3d at 331. Additionally, the pleadings and evidence showed that Barker was injured by a SHSU employee operating a SHSU motor vehicle. As a result, Barker’s claim meets the first two requirements of Section 101.021. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021. Even so, SHSU contends that its immunity is not waived under the TTCA because it cannot be personally liable to Barker since workers’ compensation is her exclusive remedy, she failed to waive workers’ compensation coverage under the election of remedies doctrine, or she failed to exhaust her administrative remedies. We, therefore, first examine whether Barker’s claims are barred by the exclusive remedy provision of the Texas Workers’ Compensation Act (TWCA). See City of Bellaire v. Johnson, 400 S.W.3d 922, 924 (Tex. 2013) (per curiam) (“suit for injury from the operation of a motor-driven vehicle” would have waived sovereign immunity “but for the exclusive-remedy bar provided by the [TWCA]”).

V. Exclusive Remedy

Neither party disputes that SHSU is “[a] governmental unit that has workers’ compensation insurance.” TEX. CIV. PRAC. & REM. CODE ANN. § 101.028. SHSU is, therefore, “entitled to the privileges and immunities granted by the workers’ compensation laws of this state to private individuals and corporations.” Id. “The Act is the exclusive remedy for non-intentional, ‘work-related injuries’ of an employee, and exempts the employer, its agents, and its employees from common-law liability claims based on negligence or gross negligence.” Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing TEX. LAB. CODE ANN. § 408.001(a)). “To demonstrate that a common law claim is barred by the [exclusive remedy provision,] the defendant must show that the injured worker was (1) its employee at the time of the work-related injury and (2) covered by worker’s compensation insurance.” Id.

It is further undisputed that Barker was a SHSU employee at the time she was injured and that she was covered by workers’ compensation insurance. Even so, Barker contends that the TWCA exclusive remedy provision does not apply because she did not suffer a work-related injury under the TWCA. A “work-related injury” has been interpreted to mean an injury suffered while in the course and scope of employment. Payne v. Galen Hosp. Corp., 28 S.W.3d 15, 17–18 (Tex. 2000).

*4 Section 401.011(12) of the TWCA defines the “[c]ourse and scope of employment” as “an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer.”

City of Corpus Christi v. Muller, No. 13-18-00443-CV, 2019 WL 2384162, at *2 (Tex. App.—Corpus Christi–Edinburg Jun. 6, 2019, no pet.) (alteration in original) (mem. op.) (quoting TEX. LAB. CODE ANN. § 401.011(12)). “The term includes an activity conducted on the premises of the employer or at other locations.” TEX. LAB. CODE ANN. § 401.011(12).

The parties dispute whether Barker was in the course and scope of her employment when she suffered her injuries. If she was within the course and scope of her employment, then the exclusive remedy provision of the TWCA barred Barker’s common-law claims, and the City’s immunity was not waived. See City of Bellaire, 400 S.W.3d at 924; see also TEX. LAB. CODE ANN. § 408.001(a). If she was not within the course and scope of her employment, the TTCA waived the City’s immunity because Barker suffered injuries as a result of an accident involving a motor vehicle. See TEX. CIV. PRAC. & REM. CODE ANN. 101.021; City of Bellaire, 400 S.W.3d at 924.

Employees injured while going to or from work are generally considered not to be in the course of employment for the purposes of workers’ compensation. Tex. Comp. Ins. Co. v. Matthews, 519 S.W.2d 630, 631 (Tex. 1974). That said, the course and scope of an employee’s employment is not limited to the employee’s working hours or the place where the work is performed. See Tex. Workers’ Comp. Ins. Fund v. Rodriguez, 953 S.W.2d 765, 768 (Tex. App.—Corpus Christi–Edinburg 1997, pet. denied) (citing Deatherage v. Int’l Ins. Co., 615 S.W.2d 181, 183 (Tex. 1981)). For example, in Rodriguez, an employee was found to be “in the course and scope of his employment” when, during a scheduled, ten-minute break, he was injured while playing football with his coworkers. Rodriguez, 953 S.W.2d at 768.

Similarly, under the rule known as the “access doctrine,” the course and scope of employment includes:

not only the actual doing of the work, but a reasonable margin of time and space necessary to be used in passing to and from the place where the work is to be done. If the employee be injured while passing, with the express or implied consent of the employer, to or from his work by a way over the employer’s premises, or over those of another in such proximity and relation as to be in practical effect a part of the employer’s premises, the injury is one arising out of and in the course of the employment as much as though it had happened while the employee was engaged in his work at the place of its performance. Tex. Emp. Ins. Ass’n v. Lee, 596 S.W.2d 942, 943 (Tex. App.—Waco 1980, no writ).

Courts have applied the access doctrine to find that an employee was injured in the course of employment when her accident occurred on or about the employer’s premises while she was either going to or coming from work. In Dickson v. Silva, the plaintiff clocked out for lunch and drove his motorcycle through his employer’s entrance and exit driveway where he collided with an employer-owned truck, which was being driven in the course and scope of employment by another company employee. Dickson v. Silva, 880 S.W.2d 785, 786 (Tex. App.—Houston [1st Dist.] 1993, writ denied). The plaintiff received workers’ compensation benefits but subsequently filed a negligence claim against the employee driver and his employer. Id. The court of appeals upheld the trial court’s grant of summary judgment in favor of the employer, holding that the access doctrine placed the plaintiff in the course and scope of his employment and barred his claim under the TWCA’s exclusive remedy provision.² See also Bordwine v. Tex. Emp.s’ Ins. Ass’n, 761 S.W.2d 117, 120 (Tex. App.—Houston [14th Dist.] 1988, writ denied) (holding that an employee was injured in the course of employment when she stepped out of her car parked in an employee parking lot); Tex. Emp.s’ Ins. Ass’n v. Lee, 596 S.W.2d 942, 947 (Tex. App.—Waco 1980, no writ) (holding that an employee was injured in the course of employment when his accident occurred shortly after work while he was preparing to leave in his vehicle from his employer’s work site); Tex. Emp.s’ Ins. Ass’n v. Dean, 604 S.W.2d 346, 349–50 (Tex. App.—El Paso 1980, no writ) (holding that an employee, who was assaulted in her employer’s parking lot, was in the course of employment); Aetna Life Ins. Co. v. Woods, 449 S.W.2d 86, 88 (Tex. App.—Fort Worth 1969, writ ref’d n.r.e.) (holding that an employee, who collided with another car on her employer’s premises when she was leaving work to go home, was in the course of her employment).

*5 Here, the relevant facts are undisputed. After teaching a 9:00 a.m. class in SHSU Building AB4, Barker left the building a few minutes later and walked toward the parking lot where she had parked her car that morning. Barker testified that she was going to move her car to a different parking lot and that she was going to run an errand and eat lunch before her next class, which was about two hours later. As she was crossing the street directly outside the building, she was struck by the truck and injured. Testimony indicated that the portion of Avenue I directly outside of Building AB4 where Barker was injured was owned and maintained by SHSU but that the street was open to public use. Barker later applied for and received workers’ compensation benefits.

Viewing the facts in the light most favorable to Barker, as we must, we find that she was within the course and scope of her employment at the time of her injury. Although Barker, a salaried employee, was going to lunch or running an errand and was not “on the Company’s clock” at the time she was walking to her car in the SHSU parking lot, her actions and the collision were so closely connected with her employment as to render it an incident thereto. See Dickson, 880 S.W.2d at 786. Moreover, the portion of Avenue I where she was injured was on SHSU’s premises. Even if SHSU did not own the roadway, being within the campus, directly outside of Building AB4, it was in such proximity and relation as to be in practical effect a part of SHSU’s premises. See Lee, 596 S.W.2d at 943 (Tex. App.—Waco 1980, no writ).

Based on the foregoing, we find that SHSU, were it a private person, would not be liable to Barker because she suffered work-related injuries in the course and scope of her employment. As a result, workers’ compensation is her exclusive remedy and her common-law action for damages is barred by the TWCA. See TEX. CIV. PRAC. & REM. CODE ANN. § 101.021(2); TEX. LAB. CODE ANN. § 401.011(12), 408.001(a). Accordingly, the TTCA does not apply to waive SHSU’s sovereign immunity, the trial court properly granted SHSU’s plea to the jurisdiction, and we overrule this point of error. See City of Bellaire, 400 S.W.3d at 924.

Having found one valid ground for granting the plea to the jurisdiction, we need not address Barker’s challenge to the remaining grounds. See Kownslar v. City of Houston, 654 S.W.3d 472, 480 (Tex. App.—Houston [14th Dist.] 2022, pet. filed) (we must affirm if any of the independent grounds in the jurisdictional plea has merit).

V. Conclusion

We affirm the trial court’s judgment.

Footnotes
1	Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2	At the time Dickson was decided, the exclusive remedy provision was codified under former Article 8306 of the Texas Revised Civil Statutes. See Act of May 5, 1983, 68th Leg., R.S., ch. 131, § 1, 1983 Tex. Gen. Laws 613, 613 (repealed 1989).

2021 WL 3435004

Only the Westlaw citation is currently available.

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.

Court of Appeals of Texas, Texarkana.

IN RE DAMYIEN PORTER, WARFAB INDUSTRIES, INC., AND WARFAB, INC.

No. 06-21-00066-CV

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Submitted: August 5, 2021

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Decided: August 6, 2021

Original Mandamus Proceeding

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Justice Burgess

MEMORANDUM OPINION

Ralph K. Burgess Justice

In this original proceeding, Damyien Porter (Porter), Warfab Industries, Inc., and Warfab, Inc. (collectively Warfab), have filed a petition for a writ of mandamus requesting this Court to compel the trial court to vacate its order denying their plea to the jurisdiction and plea in abatement. We conclude that the record does not establish the right to mandamus relief. As a result, we deny the petition for a writ of mandamus.

I. Factual and Procedural Background

On June 30, 2018, Lauren Vasquez was traveling as a passenger in a Warfab-owned pickup truck driven by Porter, a Warfab employee. According to Vasquez’s petition, she was injured after Porter lost control of the vehicle and caused it to crash into a tree. She sued Porter and Warfab (collectively Relators) for several theories of negligence, alleged that Porter was operating within the course and scope of his employment at the time of the accident, and sought damages for reasonable past and future medical care, pain and suffering, past and future physical impairment, loss of earnings, and loss of earning capacity.

In their answer, Relators alleged that Warfab was a subscriber under the Texas Workers’ Compensation Act (TWCA), that it had a workers’ compensation policy at the time of the accident, and as a result, that Vasquez’s claims were barred pursuant to the Texas Labor Code because she was also a Warfab employee. Relators filed a plea to the jurisdiction and a plea in abatement arguing that the trial court lacked jurisdiction to consider the case because Vasquez had not exhausted her administrative remedies. Relators’ plea also alleged that Warfab had filed a claim with the workers’ compensation insurance carrier and that it was assigned to adjuster Richard Martinez. In support, Relators attached an unverified, unsworn document purporting to be a copy of Warfab’s workers’ compensation and employer’s liability insurance policy issued by the Hartford, which stated it would cover bodily injury if it arose “out of and in the course of the injured employee’s employment.” No other documents were attached to Relators’ plea.

In response, Vasquez admitted that she did not pursue a worker’s compensation claim because she was not acting in the course and scope of her employment during the accident. The response attached a verified copy of Warfab’s interrogatory responses, which were answered by Safety Director Jimmy Dean Smith, who said that the accident happened at 1:15 p.m. A verified copy of Vasquez’s timecard showed that, on the day of the accident, she clocked in at 8:06 a.m. and clocked out at 11:08 a.m. A verified copy of her earnings statement showed that Vasquez was only paid for three hours of work on the day of the accident.

On August 27, 2020, the trial court denied Warfab’s plea to the jurisdiction. On November 9, Relators filed a motion for reconsideration arguing that the evidence created a question of fact concerning whether Vasquez was acting in the course and scope of her employment. Again, Relators alleged that Warfab was a subscriber under the TWCA and, in support of this assertion, attached another unverified, unsworn document purporting to be a copy of Warfab’s workers’ compensation and employer’s liability insurance policy. Relators also attached affidavits from Smith¹ and Porter² attempting to challenge Vasquez’s evidence on whether she was in the course and scope of her employment.

In response, Vasquez objected to Relators’ unverified, unsworn copy of Warfab’s purported workers’ compensation insurance policy on the ground that it was unauthenticated and argued that Relators had not brought forth any evidence showing that Warfab subscribed to workers’ compensation insurance on the date of the accident. Vasquez also objected to Smith’s and Porter’s affidavits as conclusory statements that contained hearsay.

The trial court held a hearing on Relators’ motion on December 22, 2020. Relators have not provided this Court with a transcript of that hearing. Even so, Relators represented in a subsequent motion that, “[a]t the hearing, Plaintiff objected to the insurance policy attached as evidence in support of the motion. The Court requested supplementation of a business records affidavit to prove-up the authenticity of the attached records.” As a result, it appears that the trial court sustained Vasquez’s objection. To remedy the issue, Relators filed supplemental evidence in support of their motion for reconsideration on March 23, 2021.

The supplemental evidence included an insurance policy authenticated by a business record affidavit, which was different from the previous unverified policies Relators had presented to the trial court. While effective on the date of the accident, the authenticated policy did not show that Warfab had workers’ compensation coverage. Instead, it stated, under a provision labeled “[e]xclusions,” that the “insurance [did] not apply to ... ‘[b]odily injury,’ ... and ‘personal injury’ ” or to “Workers’ Compensation.” It also stated that the insurance company would not “pay expenses for ‘bodily injury’.... [t]o a person hired to do work for or on behalf of any insured” or “[t]o a person, whether or not an ‘employee’ of any insured, if benefits for the ‘bodily injury’ [were] payable or must be provided under a workers’ compensation or disability benefits law or a similar law.”

Relators also attached the affidavit of Martinez, which read,

I am the claims adjuster assigned to claim #Y2ZC06266 regarding a worker’s compensation claim filed with the Hartford. This claim was filed on May 15, 2020[,] by JD Smith on behalf of the insured Warfab Industries, Inc. related to injuries allegedly sustained by employee Laura Vasquez while in the course of her employment with Warfab Industries, Inc. The date of loss was listed as[ ] June 30, 2018. A notice of medical claim acknowledgement package was forwarded to the Laura Vasquez at her address .... The medical claim acknowledgement package has not been completed or returned and the claim remains open at this time.

The affidavit did not state whether Warfab had workers’ compensation coverage on the date of the accident. On April 27, 2021, the trial court denied Warfab’s motion to reconsider. Relators now bring this original proceeding.

II. Standard of Review

“To be entitled to mandamus relief, the relator must show (1) that he has no adequate remedy at law and (2) that the action he seeks to compel is ministerial, not one involving a discretionary or judicial decision.” In re Crawford, 560 S.W.3d 357, 363 (Tex. App.—Texarkana 2018, orig. proceeding) (citing State ex rel. Young v. Sixth Judicial Dist. Court of Appeals at Texarkana, 236 S.W.3d 207, 210 (Tex. Crim. App. 2007) (orig. proceeding)). “The relator is obligated to provide this Court with a record sufficient to establish his right to mandamus relief.” Id. (citing TEX. R. APP. P. 52.3; Walker v. Packer, 827 S.W.2d 833, 837 (Tex. 1992) (orig. proceeding); In re Pilgrim’s Pride Corp., 187 S.W.3d 197, 198–99 (Tex. App.—Texarkana 2006, orig. proceeding)). “Before mandamus may issue, the relator must show that the trial court had a legal duty to perform a ministerial act, was asked to do so, and failed or refused to act.” Id.

“In addition to showing that the trial court had no option but to have performed the act urged by the relator, the relator must also have no adequate remedy at law.” Id. “An appellate remedy is ‘adequate’ when any benefits to mandamus review are outweighed by the detriments.” Id. (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). “[A]n appellate remedy is not inadequate merely because it may involve more expense or delay than obtaining an extraneous writ.” Id. (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d at 136).

“Absent an extraordinary circumstance, ‘a denial of a motion to dismiss or a plea in abatement is a ruling incident to the ordinary trial process which will not be corrected by mandamus, but by the legal remedy of the ordinary appellate process.’ ” Id. (quoting Hooks v. Fourth Court of Appeals, 808 S.W.2d 56, 59 (Tex. 1991) (orig. proceeding)); see In re State Bar of Tex., 113 S.W.3d 730, 734 (Tex. 2003) (orig. proceeding). “Mandamus review is not—and should not be—an easily wielded tool, but such review of significant rulings in exceptional cases may be essential to, among other things, ‘spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.’ ” In re Crawford, 560 S.W.3d at 363–64 (quoting In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 299 (Tex. 2016) (orig. proceeding) (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d at 136)).

An exception to the general rule that mandamus review is unavailable from an order denying a plea to the jurisdiction exists in situations when a state agency has exclusive jurisdiction or a trial court’s order interferes with the authority of a state agency. See In re Entergy Corp., 142 S.W.3d 316, 321–22 (Tex. 2004) (orig. proceeding); In re State Bar of Tex., 113 S.W.3d at 734. “The Texas Worker’s Compensation Act provides that the recovery of worker’s compensation benefits is the exclusive remedy of an employee covered by worker’s compensation insurance for a work-related injury.” In re Tex. Mut. Ins. Co., No. 05-05-00944-CV, 2005 WL 1763562, at *2 (Tex. App.—Dallas July 27, 2005, orig. proceeding) (mem. op.) (citing TEX. LAB. CODE ANN. § 408.001(a)). “The Act vests the power to award compensation benefits solely to the Commission, subject to judicial review.” Id. (citing Am. Motorists Ins. Co. v. Fodge, 63 S.W.3d 801, 803 (Tex. 2001) (citing TEX. LAB. CODE ANN. §§ 408.001(a), 410.168–.169, .203–.205, .208). “Medical benefits are included within the definition of benefits.” Id. (citing TEX. LAB. CODE ANN. § 401.011(5)). As a result, a complaint that the Texas Workers’ Compensation Commission had exclusive jurisdiction over an employee’s claims and that the trial court lacked jurisdiction because an employee had not exhausted administrative remedies may be reviewed by petition for the writ of mandamus. Id. at *1.

“If an agency has exclusive jurisdiction, a claimant must exhaust all administrative remedies in the agency before filing a claim in the trial court.” In re Vilore Foods Co., No. 04-19-00860-CV, 2020 WL 1159060, at *1 (Tex. App.—San Antonio Mar. 11, 2020, orig. proceeding) (mem. op.) (quoting In re Tex. Mut. Ins. Co., 329 S.W.3d at 5). “Until the party has exhausted all administrative remedies, the trial court lacks subject matter jurisdiction and must dismiss any claim within the agency’s exclusive jurisdiction.” Id. (quoting In re Entergy Corp., 142 S.W.3d at 321–22; In re Tex. Mut. Ins. Co., 329 S.W.3d at 5).

“Subject-matter jurisdiction may be properly challenged by a plea to the jurisdiction.” Univ. of Tex. Health Sci. Ctr. at Tyler v. Nawab, 528 S.W.3d 631, 638 (Tex. App.—Texarkana 2017, pet. denied). “Whether a trial court has subject-matter jurisdiction is a question of law subject to de novo review.” Id. (quoting Fannin Cty. Cmty. Supervision & Corrections Dep’t v. Spoon, No. 06-13-00103-CV, 2014 WL 3513388, at *4 (Tex. App.—Texarkana July 16, 2014, pet. denied) (mem. op.)). “A plea to the jurisdiction may challenge ... the existence of jurisdictional facts to support the pleadings.” Id. (citing Mission Consol. Indep. Sch. Dist. v. Garcia (Garcia II), 372 S.W.3d 629, 635 (Tex. 2012)).

Where, as here, “the plea to the jurisdiction challenges the existence of jurisdictional facts, the trial court may consider the evidence submitted by the parties to resolve the dispute, ‘even if that evidence “implicates both the subject-matter jurisdiction of the court and the merits of the case.” ’ ” Id. (quoting Garcia II, 372 S.W.3d at 635 (quoting Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004))). In such a circumstance,

a trial court’s review of a plea to the jurisdiction mirrors that of a traditional summary judgment motion. Initially, the defendant carries the burden to meet the summary judgment proof standard for its assertion that the trial court lacks jurisdiction. If it does, the plaintiff is then required to show that a disputed material fact exists regarding the jurisdictional issue.

Id. at 638 (quoting Garcia II, 372 S.W.3d at 635) (citations omitted). “On review, we take as true all evidence favorable to the non-movant, indulging reasonable inferences and resolving all doubts in favor of the non-movant.” Id. at 639 (quoting Fannin Cty. Cmty. Supervision & Corrections Dep’t v. Spoon, No. 06-13-00103-CV, 2014 WL 3513388, at *5 (Tex. App.—Texarkana July 16, 2014, pet. denied) (mem. op.) (citing City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009))).

“If the trial court’s subject matter jurisdiction is challenged in a plea to the jurisdiction and the undisputed evidence shows the claimant has failed to exhaust its administrative remedies, the trial court must grant the plea as a matter of law.” In re Vilore Foods Co., 2020 WL 1159060, at *2 (citing In re Entergy Corp., 142 S.W.3d at 321–22; Miranda, 133 S.W.3d at 228); see Nawab, 528 S.W.3d at 638. But “[i]f a fact issue exists, the trial court should deny the plea.” Nawab, 528 S.W.3d at 638 (quoting Garcia II, 372 S.W.3d at 635); see State v. Holland, 221 S.W.3d 639, 643 (Tex. 2007) (“A plea should not be granted if a fact issue is presented as to the court’s jurisdiction, but if the relevant undisputed evidence negates jurisdiction, then the plea to the jurisdiction must be granted.”); Miller v. Gregg Cty., 546 S.W.3d 410, 419 (Tex. App.—Texarkana 2018, no pet.).

III. The Record Does Not Establish Relators’ Right to Mandamus Relief

Here, Relators were required to “carr[y] the burden to meet the summary judgment proof standard for [their] assertion that the trial court lack[ed] jurisdiction.” Nawab, 528 S.W.3d at 638 (quoting Garcia II, 372 S.W.3d at 635). Relators argued that Vasquez was required to exhaust administrative remedies under the TWCA. To show that the TWCA applied, Relators were first required to bring forth evidence that Vasquez was “an employee covered by workers’ compensation insurance coverage.” TEX. LAB. CODE ANN. § 408.001(a).

Relators’ pleadings alleged Warfab had workers’ compensation coverage at the time of the accident. Even so, “[p]leadings outline the issues, but they are not evidence.” Shawell v. Pend Oreille Oil & Gas Co., 823 S.W.2d 336, 338 (Tex. App.—Texarkana 1991, writ denied); see Holmes v. S. Methodist Univ., No. 05-11-01178-CV, 2013 WL 1857932, at *3 (Tex. App.—Dallas May 1, 2013, no pet.) (mem. op.) (citing Heirs of Del Real v. Eason, 374 S.W.3d 483, 487 (Tex. App.—Eastland 2012, no pet.); Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); Zeifman v. Nowlin, 322 S.W.3d 804, 808 (Tex. App.—Austin 2010, no pet.)). Relators attached a document in support of their motion for reconsideration of the denial of the plea to the jurisdiction that purported to be a copy of a workers’ compensation insurance coverage policy. The document was unverified and unsworn. By written response and during the reconsideration hearing, Vasquez objected to the unauthenticated document. Because “[u]nverified documents attached to pleadings are not proper summary judgment evidence” that can be relied on in the context of either a summary judgment or a plea to the jurisdiction, it appears from the record submitted by Relators that the trial court granted the objection. Holmes, 2013 WL 1857932, at *3 (citing Eason, 374 S.W.3d at 487); see Kleven v. Tex. Dep’t of Criminal Justice–I.D., 69 S.W.3d 341, 345 (Tex. App.—Texarkana 2002, no pet.); see also In re Est. of Guerrero, 465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). Relators attempted to remedy the issue by obtaining a business records affidavit authenticating a different policy, but this policy did not contain workers’ compensation coverage, and none of the other evidence submitted by Relators established that they had such coverage.

We find that Relators failed to provide this Court with a record sufficient to establish their right to mandamus relief because the record does not contain undisputed evidence that Vasquez was required to exhaust administrative remedies. See In re Aramark Corp., 38 S.W.3d 291, 293–94 (Tex. App.—Tyler 2001, orig. proceeding) (denying mandamus relief where, “[b]ased on the limited record ... in th[e] mandamus proceeding, [appellate court was] unable to determine whether and to what extent [plaintiff was] required to exhaust her administrative remedies [under the TWCA] before ... bring[ing] the ... cause of action”). As a result, Relators have neither shown that the trial court had a ministerial duty to grant the plea to the jurisdiction nor presented an extraordinary circumstance that would justify an exception to the general rule that mandamus review is unavailable from an order denying a plea to the jurisdiction.

We deny the petition for a writ of mandamus.³

Footnotes
1	Smith’s affidavit said, Upon returning to our company premises I asked Laura Va[s]quez if she was on the clock during the accident and she stated ‘no.’ I asked if her timecard entry was a date stamp or a written-in time entry and she said ‘written-in.’ It is against company policy for an employee to ‘ride along’ with another employee for the purpose of conducting company business while they are not on the clock. It is also against company policy for an employee to ‘write in’ a timecard entry without an approval and signature of a company manager at the time of correction. .... .... When I reviewed Laura Vasquez’s timecard (attached) for the date of June 30, 2018, it contained a white out entry with a date and time stamp designating her alleged clock out. There was no ‘write-in’ clock out on her timecard. The time entry is very suspicious and appears to cover up a time previously stamped or handwritten entry. Per company protocol, any type of correction to a time sheet must be approved and initialed by a manager on duty at the time of the correction. The timecard did not contain the requisite endorsement by the manager on duty.... .... The following Monday morning we noticed that the time clock system had been mysteriously changed by one hour and had to be reset. Two meetings were held about how the Plaintiff should not have been riding along on the day of the accident. That afternoon Plaintiff Laura Vasquez resigned and cleaned her computer before I had any opportunity to discuss the suspicious entries or the clock system changes with her. Based on the numerous violations of company policy, the suspicious timecard entries, the bizarre time clock system modification and the inconsistent version of events provided by Plaintiff Laura Vasquez, it is my opinion and belief that Laura Vasquez was on the clock and on the job when the motor vehicle accident occurred on June 30, 2018.
2	Porter’s affidavit read, On June 30, 2018, I was engaged in my duty as an employee of Warfab and driving a white flat-bed pick-up truck owned by my employer for a delivery in Groesbeck, Texas. I was accompanied by Laura Va[s]quez who asked if she could ride along/help while I ma[d]e the delivery. She stated she wanted to get “some extra hours” and overtime pay. It was my understanding from our conversation that Laura Va[s]quez was on the clock and being paid by Warfab at the time of the motor vehicle collision that happened on or about June 30, 2018. At the time of the accident, Laura Va[s]quez and I were traveling in a Warfab vehicle for the purpose of making a delivery for our employer, Warfab.
3	We also deny Relators’ accompanying motion for emergency stay of proceedings in the trial court.

Court of Appeals of Texas, Texarkana.

LOAD TRAIL, LLC, Appellant

v.

Joseph JULIAN, Appellee

No. 06-19-00099-CV

|

Date Submitted: October 14, 2020

|

Date Decided: January 7, 2021

On Appeal from the 62nd District Court, Lamar County, Texas, Trial Court No. 86844

Attorneys & Firms

Jason A. Itkin, Houston, Jeffrey S. Levinger, Cory D. Itkin, Houston, Jacob Karam, Ryan MacLeod, Houston, for Appellee.

Charles T. Frazier Jr., Dallas, Roy W. Horton, Robert C. Turner, Darryl J. Silvera, Dallas, Kirsten M. Castaneda, Houston, for Appellant.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Burgess

Load Trail, LLC (Load Trail), appeals from the trial court’s judgment confirming an arbitration award in favor of Joseph Julian. In a single appellate issue, Load Trail argues that the arbitration award should be vacated because the arbitrator exhibited evident partiality. We affirm the judgment of the trial court.

I. Background

In May 2017, Julian became employed by Load Trail, a trailer manufacturer in Sumner, Texas. Julian’s job consisted of transporting parts from a rack to assembly line welders. Julian was injured approximately two months after he began working for Load Trail when, while lifting a toolbox, he was knocked to the ground by what he believed was a forklift. According to a witness, the forklift driver¹ was transporting a metal wall. When the forklift driver attempted to move the wall up to the front of the forks, the wall fell off and struck Julian on the right side of his back shoulder, knocking him to the ground. The forklift driver helped Julian up, apologized, and the two went to the supervisor’s office to report the accident.

After reporting the accident, Julian left work for the day. Julian indicated that his legs and back hurt after the accident and described it as the worst pain he had ever experienced. Julian was ultimately diagnosed with herniated discs at L4-L5 and L5-S1, for which he underwent lumbar fusion surgery.² Julian also suffered from neck pain following the accident. Julian testified that he could no longer play with his children and that, also suffered from neck pain following the accidentalthough he attempted to resume work on two different occasions, he was physically unable to do manual labor.

Following his injury, Julian sued Load Trail, a nonsubscriber to the Texas workers’ compensation system, alleging negligence, negligence per se, and gross negligence. He sought damages of over $1,000,000.00. Julian’s claims were ordered to mediation pursuant to Load Trail’s arbitration policy and procedures, a condition-of-employment arbitration policy governed by the Federal Arbitration Act (FAA). The arbitration was conducted for three days before the Honorable T. King Fifer. In his Final Award, which included a detailed outline of the evidence on which he relied, Fifer found Load Trail negligent in failing to provide a safe workplace and awarded Julian $930,000.00 in damages. Julian thereafter filed a motion to confirm the arbitration award in the trial court, while Load Trail moved to vacate the award. Following a hearing, the trial court entered an amended final judgment³ confirming the arbitrator’s Final Award. This appeal followed.

II. Standard of Review

“The Federal Arbitration Act imposes significant limits on judicial review in order that arbitration will be ‘efficient and cost-effective’ for the parties.” Householder Grp. v. Caughran, 354 F. App’x 848, 850 (5th Cir. 2009) (per curiam) (quoting Positive Software Solutions, Inc. v. New Century Mortg. Corp., 476 F.3d 278, 280 (5th Cir. 2007) (en banc)). Although review of the confirmation of an arbitration award is de novo, our review of such an award, “[i]n light of the strong federal policy favoring arbitration, ... is extraordinarily narrow.” Rain CII Carbon, LLC v. ConocoPhillips Co., 674 F.3d 469, 472 (5th Cir. 2012) (quoting Brook v. Peak Int’l, Ltd., 294 F.3d 668, 672 (5th Cir. 2002)); see Xtria L.L.C. v. Int’l Ins. All., Inc., 286 S.W.3d 583, 591 (Tex. App.—Texarkana 2009, pet. denied). “Courts consistently emphasize the narrowness of judicial review of arbitration awards, describing it as ‘among the narrowest known to the law.’ ” Pfeifle v. Chemoil Corp., 73 F. App’x 720, 723 (5th Cir. 2003) (quoting ARW Expl. Corp. v. Aguirre, 45 F.3d 1455, 1462 (10th Cir. 1995)). The arbitrator’s decision must be given a high level of deference, and “[t]he court must resolve any doubts or uncertainties in favor of upholding the award.” Brabham v. A.G. Edwards & Sons Inc., 376 F.3d 377, 385 n.9 (5th Cir. 2004).

III. Analysis

Section 10(a) of the FAA authorizes a reviewing court to vacate an arbitration award:

(1) where the award was procured by corruption, fraud or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

9 U.S.C.A. § 10(a).⁴ The party moving to vacate an arbitration award bears the burden of proof. Lummus Global Amazonas S.A. v. Aguaytia Energy del Peru S.R. Ltda., 256 F.Supp.2d 594, 604 (S.D. Tex. 2002).

Load Trail complains that the trial court erred in failing to vacate the award solely based on the arbitrator’s evident partiality. See 9 U.S.C.A. § 10(a)(2). More particularly, it complains that the arbitrator’s rulings and behavior during the arbitration proceeding displayed evident partiality amounting to actual bias and that bias was further evidenced in the arbitrator’s findings and Final Award. “To establish evident partiality based on actual bias, the party urging vacatur must produce specific facts from which ‘a reasonable person would have to conclude that the arbitrator was partial to one party.’ ” Caughran, 354 F. App’x at 852 (quoting Weber v. Merrill Lynch Pierce Fenner & Smith, Inc., 455 F.Supp.2d 545, 550 (N.D. Tex. 2006)). “This is an ‘onerous burden,’ because the urging party must demonstrate that the alleged partiality is ‘direct, definite, and capable of demonstration rather than remote, uncertain or speculative.’ ” Id. (quoting Weber, 455 F.Supp.2d at 550)).

In support of its claim, Load Trail argues that the arbitrator’s statements to Load Trail’s counsel during the arbitration proceeding demonstrated actual bias. The first such complaint regarding the arbitrator’s statements to counsel concern counsel’s objections to certain of Julian’s exhibits. The arbitrator stated:

Here’s what I want you to do. We’re wasting time here.

If you have these exhibits and they’re out of Bates range, you all should have figured this out last night, that we got some problem. I don’t want to waste time going through exhibits when I know full well you got them.

After counsel stated, “I’m going to assert my objections,” the arbitrator responded, “I’m going to let you assert your objections, but I want you to hear me. We got a limited amount of time today; all right.” After counsel stated a somewhat lengthy objection to the first exhibit, the arbitrator stated, “We’re going to take a five-minute break, then I’m going to give you 10 minutes to put your objections on the record; all right. We will start at 9:00 o’clock. Understand me?” At that point, counsel indicated that he had his objections ready and could go through them then. The arbitrator overruled each objection. Load Trail also contends that the arbitrator demonstrated bias for admonishing counsel for objecting after a witness had responded to a question.

Load Trail further complains that the arbitrator demonstrated bias against its counsel when it “pressured him to settle with Julian.” In what Load Trail describes as a “startling, unmasked display of bias,” the arbitrator stated, prior to Julian’s testimony and before Load Trail put on any of its witnesses:

Here’s what I’m going to do. Here’s what I’d like you all to do. We’re going to go to lunch. But before we go to lunch, I want to see if you all can figure out how to resolve this case.

[Counsel for Appellee]: Yes, sir.

[Counsel for Appellee]: Yes, Your Honor.

Arbitrator: You hearing me, [counsel for Appellant]?

[Counsel for Appellant]: Yes, Your Honor.

Finally, Load Trail has scoured the record and has recited perhaps every instance during the three-day hearing in which the arbitrator overruled any objection it voiced. Load Trail claims that the totality of these circumstances would compel a reasonable person to conclude that the arbitrator was partial to Julian.⁵ Load Trail additionally complains that the arbitrator’s findings and award demonstrate evident partiality.⁶ It contends that, because no reasonable person could have found Julian’s testimony credible, “[o]nly partiality could have blinded the arbitrator to this conclusion.”

Julian responds that Load Trail waived its evident partiality claim by failing to raise that complaint during the arbitration proceeding. “In judicial proceedings, the requirements for preserving complaints and for the record are set out, respectively, in Rules 33 and 34 of the Texas Rules of Appellate Procedure. Although these rules are not written for appeals from arbitration awards, their principles should govern such appeals.” Nafta Traders, Inc. v. Quinn, 339 S.W.3d 84, 101 n.80 (Tex. 2011). Indeed, a party can waive an otherwise valid objection by proceeding with the arbitration despite knowledge of facts giving rise to such an objection. Graham-Rutledge & Co. v. Nadia Corp., 281 S.W.3d 683, 688 (Tex. App.—Dallas 2009, no pet.). As a result, “[a] party who knows or who has reason to know of an arbitrator’s alleged bias but remains silent pending the outcome of the arbitration waives the right to complain.” Tex. Health Mgmt., LLC v. Healthspring Life & Health Ins. Co., No. 05-18-01036-CV, 2020 WL 3071729, at *4 (Tex. App.—Dallas June 10, 2020, no pet.) (mem. op.). When a party believes the arbitrator is biased, he “may not sit idly by during an arbitration procedure and then collaterally attack that procedure on grounds not raised before the arbitrator when the result turns out to be adverse.” Bossley v. Mariner Fin. Grp., Inc., 11 S.W.3d 349, 351–52 (Tex. App.—Houston [1st Dist.] 2000), aff’d, 79 S.W.3d 30 (Tex. 2002); see Dealer Computer Servs., Inc. v. Michael Motor Co., 485 F. App’x 724, 727 (5th Cir. 2012) (party seeking to vacate arbitration award based on evident partiality must object during arbitration; failure to do so results in waiver of right to object); Delta Mine Holding Co. v. AFC Coal Props., Inc., 280 F.3d 815, 821 (8th Cir. 2001) (“Even when a neutral arbitrator is challenged for evident partiality, the issue is deemed waived unless the objecting party raised it to the arbitration panel.”); Cook Indus., Inc. v. C. Itoh & Co. (Am.), 449 F.2d 106, 107–08 (2d Cir. 1971) (“Where a party has knowledge of facts possibly indicating bias or partiality on the part of an arbitrator he cannot remain silent and later object to the award of the arbitrators on that ground. His silence constitutes a waiver of the objection.”).

Yet, Load Trail, having become aware of what it deemed a “startling, unmasked display of bias” during the proceeding, failed to voice any objection to what it perceived to be the arbitrator’s actual bias. And, at the conclusion of the proceeding, the arbitrator asked the parties if “there [was] anything else for the purposes of [their] record that need[ed] to be offered or talked about before [they] dismiss[ed]?” Load Trail responded, “No, Your Honor.”

Load Trail claims, though, that waiver does not apply when a party does not know the basis for the evident-partiality challenge until after the arbitration. See Commonwealth Coatings Corp. v. Cont’l Cas. Co., 393 U.S. 145, 146 (1968) (noting that facts supporting claim were not known until after an award had been made). While that may be the case, the complaints Load Trail has offered in support of its actual bias claim that are based on the arbitrator’s conduct during the arbitration proceeding were certainly known to it before the proceeding was concluded. While acknowledging that its brief explained that “the arbitrator engaged in numerous acts demonstrating actual bias against Load Trail,” Load Trail nevertheless claims that waiver should not apply because it “remained hopeful that the arbitrator’s award would be fair and grounded in evidence and the law, as the parties’ agreement required.” And, because its actual bias claim was not based on a failure to disclose, but instead on the arbitrator’s own bias, Load Trail claims that “a pre-award actual-bias objection risked provoking the arbitrator and possibly eliminating any chance Load Trail had for a fair decision.” Load Trail therefore decided that, rather than potentially offending the arbitrator by objecting to perceived actual bias, it would not object. That choice resulted in waiver of Load Trail’s claims of actual bias that allegedly occurred during the arbitration proceeding. See Dealer Computer Servs., Inc., 485 F. App’x at 727.

Even assuming no waiver of its actual bias claims emanating from the proceeding, Load Trail failed to satisfy the onerous burden of establishing “specific facts from which ‘a reasonable person would have to conclude that the arbitrator was partial to one party.’ ” Caughran, 354 F. App’x at 852 (quoting Weber v. Merrill Lynch Pierce Fenner & Smith, Inc., 455 F.Supp.2d 545, 550 (N.D. Tex. 2006)).⁷

Claims of perceived actual bias during the proceeding aside, Load Trail would have this Court vacate the Final Award based on alleged fallacies in the arbitrator’s findings of fact and award, claiming those alleged fallacies indicate bias.⁸ This Court is not permitted to “conduct a review of an arbitrator’s decision on the merits.” Caughran, 354 F. App’x at 851 (FAA does not include any ground on which to vacate award based on errors in interpretation or application of law or mistakes in factfinding); see Fontaine v. Sport City Toyota, 544 F. App’x 529 (5th Cir. 2013) (belief that the weight of evidence established arbitrator’s bias fails to satisfy “onerous burden” of demonstrating evident partiality); Bacon, 562 F.3d at 358 (there are no longer non-statutory grounds for vacating arbitration awards); Cooper, 832 F.3d at 546 (arbitration award “may not be set aside for a mere mistake of fact or law” (quoting Rain CII Carbon, L.L.C., 674 F.3d at 472)). As stated by the Supreme Court, “Courts are not authorized to review the arbitrator’s decision on the merits despite allegations that the decision rests on factual errors,” and the “fact that ‘a court is convinced [the arbitrator] committed serious error does not suffice to overturn his decision.’ ” Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001).

We, therefore, decline Load Trail’s invitation to do indirectly what we cannot do directly—conduct a merits review of the arbitrator’s decision. We overrule this point of error.

IV. Conclusion

We affirm the trial court’s judgment.

Footnotes
1	Julian did not know the name of the forklift driver involved in the accident. Load Trail disclosed the identities of the two forklift drivers working in Building A on the accident date at mediation but admitted that they did not interview either of them about the incident.
2	Julian’s employment was terminated for an unauthorized hospital visit, filing a false injury report, and unauthorized leave of work on July 28, 2017, following the July 25, 2017, accident. Julian testified that he had provided a written statement to Stanley Montalvo, Load Trail’s safety compliance manager, that indicated that he had been hit by a forklift. He further testified that Montalvo asked him to sign a blank witness statement, which Montalvo later filled out. The incident described in Montalvo’s report did not mention the forklift and stated that Julian was injured while lifting a toolbox. Julian never saw his written statement again after handing it to Montalvo.
3	The amended final judgment indicated that the trial court considered: (1) Plaintiff’s Motion to Confirm Arbitration Award and Enter Judgment; (2) Defendant’s Original and Supplemental Response to Plaintiff’s Motion to Confirm Arbitration Award and Enter Judgment; (3) Defendant’s Original and Supplemental Motion to Vacate Arbitration Award; (4) Defendant’s Motion to Modify Judgment; (5) all exhibits to the foregoing filings; (6) the Court’s file—including the entire record from the Arbitration proceeding, which also includes the Arbitrator’s Findings of Fact and Conclusions of Law and Defendant’s Objections to Plaintiff’s Proposed Findings of Fact and Conclusions of Law, of which the court took judicial notice at the October 7, 2019, and December 2, 2019, hearings; and (7) argument of counsel.
4	Arbitration awards under the FAA may be vacated only for the reasons provided in Section 10. See Citigroup Global Mkts., Inc. v. Bacon, 562 F.3d 349, 358 (5th Cir. 2009).
5	There is no indication in the record that Julian or his attorneys knew the arbitrator or had any dealings with him before the arbitration, and Load Trail makes no such contention. Julian represents in his brief that neither he nor his counsel had a previous relationship with the arbitrator, a former Dallas County judge.
6	Load Trail claims that, in making findings that favored Julian, “the arbitrator often accepted as true testimony that was conclusively disproven by physical facts, was conclusory, or otherwise constituted ‘no evidence’ under the law.” In addition to complaints regarding the arbitrator’s detailed findings, Load Trail complains that the arbitrator did not include findings about “(1) the manner in which Load Trail supervised the phantom [forklift driver], (2) how that manner of supervision breached the duty of ordinary care, and (3) why that manner of supervision was a substantial factor in the collision and without which the collision would not have occurred.” Load Trail continues, “And there is no evidence to support a conclusion that a reasonably prudent employer should have anticipated the danger of a forklift collision from the unknown manner in which Load Trail supervised the phantom [forklift driver].” Load Trail also claims that the damage award included an award for physical pain and mental anguish and that the opinions of Julian’s medical experts were conclusory and based on incomplete or false information.
7	See Weber v. Merrill Lynch Pierce Fenner & Smith, Inc., 455 F.Supp.2d 545, 549 (N.D. Tex. 2006) (“Even repeated rulings against one party to the arbitration will not establish bias absent some evidence of improper motivation.”); Litkey v. United States, 510 U.S. 540, 555–56 (1994) (“A judge’s ordinary efforts at courtroom administration—even a stern and short-tempered judge’s ordinary efforts at courtroom administration—remain immune.”); Ballentine Books, Inc. v. Capital Distrib. Co., 302 F.2d 17, 18 (2nd Cir. 1962) (no evident partiality when arbitrator asked “whether there was any possibility of settlement” and stated, after he was informed that there was no such possibility, that “it was his tentative view that there should be an award for Ballentine”); United Forming, Inc. v. Faulkner USA, LP, 350 F. App’x 948, 950 (5th Cir. 2009) (no evident partiality when arbitrator suggested defenses and causes of action to one side).
8	See supra note 6. Load Trail specifically complains that (1) the arbitrator stopped short of finding that Julian backed into the path of the forklift driver, (2) the arbitrator omitted a finding that the forklift driver also was backing up when Julian backed into his path, (3) the arbitrator omitted a finding that the forklift was making a beeping noise when Julian backed into its path, (4) the arbitrator accepted testimony about Julian’s injury that does not rise to the level of competent evidence, (5) the arbitrator omitted findings that the forklift driver was unfit or incompetent and that Load Trail should have known it, (6) the arbitrator made no findings about what supervision Load Trail provided, or as a reasonably prudent employer should have provided, to the forklift driver, (7) the arbitrator made no findings to support a causal link between Load Trail’s supervision of the employee and Julian’s purported injuries from that employee’s alleged negligence, (8) the arbitrator made no findings that Julian experienced, or will experience, any mental anguish, (9) the arbitrator’s conclusions that the forklift driver and Load Trail were negligent are not supported by the arbitrator’s findings, (10) there is no evidence in the record from which to conclude that the forklift driver was negligent, (11) as highlighted by critical findings the arbitrator omitted, the arbitrator’s findings do not support a conclusion that Load Trail was negligent, and (12) the arbitrator accorded weight to testimony no reasonable person could find credible.

Court of Appeals of Texas, Texarkana.

DIPANKAR CHANDRA, Appellant

v.

LEONARDO DRS, INC., AND DRS NETWORK & IMAGING SERVICES, LLC, Appellees

No. 06-20-00056-CV

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Submitted: November 2, 2020

|

Decided: November 24, 2020

On Appeal from the 116th District Court

Dallas County, Texas

Trial Court No. DC-19-03484

Before Morriss, C.J., Burgess and Stevens, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Josh R. Morriss, III Chief Justice

*1 Dipankar Chandra acted pro se in his attempt to prosecute a toxic tort claim in Dallas County¹ against his former employer, Leonardo DRS, Inc., and DRS Network & Imaging Services, Inc. (collectively DRS), alleging that his on-the-job, regular exposure to dangerous chemicals, including mercury telluride and cadmium telluride, caused his colon and prostate cancer and other resulting damages.² The trial court, after granting DRS’s traditional and no-evidence motion for summary judgment, entered a take-nothing judgment against Chandra. Chandra appeals. Because we conclude that the trial court’s no-evidence summary judgment was proper, we affirm its judgment.

Factual and Procedural Background

DRS filed a motion for summary judgment containing both traditional and no-evidence elements. The traditional portion of its motion argued that Chandra’s claims were barred by the Texas Workers Compensation Act’s exclusive remedy provisions and that Chanda’s claims revolving around his 2006 colon-cancer diagnosis were barred by the statute of limitations. The no-evidence portion of the motion argued that Chandra had no proof of either specific or general causation between exposure to cadmium and mercury telluride and the development of his colon and prostate cancers.

Chandra’s response to DRS’s summary judgment motion attached his own affidavit stating that “[c]olon and prostate cancer are clearly tied to cadmium exposures in scientific literature,” that two co-workers had also been diagnosed with colon cancer, and that “scientific literature indicated that prostate cancer is a slow growth cancer which can develop over a ten year period after exposure to deadly chemicals.” Chandra also attached “studies [he] found online” that discussed links between such exposures and various cancers.³ DRS objected to Chandra’s affidavit, which it described as “simply a bald assertion of Plaintiff’s personal opinion” and as conclusory, lacking in personal knowledge, and containing hearsay. DRS also objected to the articles attached to Chandra’s affidavit because they were incomplete, were not properly authenticated, were not demonstrated to be reliable, and did not establish causation of Chandra’s damages. As a result, DRS asked the trial court to strike Chandra’s summary judgment evidence. The trial court sustained DRS’s objections to the affidavit and articles and struck them from consideration as summary judgment evidence. It then granted DRS’s traditional and no-evidence motion and entered a take-nothing judgment against Chandra.

Standard of Review

*2 “When a party moves for a traditional summary judgment under rule 166a(c) and a no-evidence motion for summary judgment under rule 166a(i), we first review the trial court’s judgment under the standards of rule 166a(i).” Green v. McKay, 376 S.W.3d 891, 898–99 (Tex. App.—Dallas 2012, pet. denied) (citing Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)).

“We review a trial court’s decision to grant summary judgment de novo.” Hernandez v. Sun Crane & Hoist, Inc., 600 S.W.3d 485, 493 (Tex. App.—Dallas 2020, no pet.) (citing Tarr v. Timberwood Park Owners Ass’n, Inc., 556 S.W.3d 274, 278 (Tex. 2018)). “A defendant is entitled to summary judgment on a plaintiff’s claim if it conclusively negates at least one element of the cause of action.” Id. (citing Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002)). “A party seeking a no-evidence summary judgment must assert that no evidence exists as to one or more essential elements of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial.” Id. (citing TEX. R. CIV. P. 166a(i)). “The burden then shifts to the nonmovant to raise a fact issue on the challenged elements.” Id.

“We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict.” Id. (citing TEX. R. CIV. P. 166a(i); Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied)). “A no-evidence motion for summary judgment is improperly granted if the nonmovant presented more than a scintilla of probative evidence to raise a genuine issue of material fact on the challenged elements.” Id. (citing Ridgway, 135 S.W.3d at 600). “More than a scintilla of evidence exists if the evidence ‘rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions.’ ” Id. (quoting Ridgway, 135 S.W.3d at 601). “[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.” Id. (quoting Ridgway, 135 S.W.3d at 601).

“In reviewing a summary judgment of either type, we consider the evidence ‘in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion.’ ” Id. (quoting Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006)). “Where, as here, the trial court’s order granting summary judgment does not specify the grounds relied on, we must affirm if any of the summary judgment grounds are meritorious.” Id. (citing Cunningham v. Tarski, 365 S.W.3d 179, 186 (Tex. App.—Dallas 2012, pet. denied)).

The No-Evidence Summary Judgment Was Proper

“[T]oxic tort cases require proof of both ‘general’ and ‘specific’ causation.” Plunkett v. Connecticut Gen. Life Ins. Co., 285 S.W.3d 106, 120 (Tex. App.—Dallas 2009, pet. denied) (citing Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997); Mobil Oil Corp. v. Bailey, 187 S.W.3d 265, 270 (Tex. App.—Beaumont 2006, pet. denied); Frias v. Atl. Richfield Co., 104 S.W.3d 925, 928 (Tex. App.—Houston [14th Dist.] 2003, no pet.); Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591, 601–02 n.19 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)). “General causation addresses whether a substance is ‘capable of causing a particular injury or condition in the general population,’ while specific causation addresses whether a substance ‘caused a particular individual’s injury.’ ” Id. at 120–21 (quoting Havner, 953 S.W.2d at 714); Neal v. Dow Agrosciences L.L.C., 74 S.W.3d 468, 472 (Tex. App.—Dallas 2002, no pet.) (citing Praytor v. Ford Motor Co., 97 S.W.3d 237, 244 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (“With regard to whether a plaintiff’s injury was caused by exposure to a particular substance, a resident generally must prove both that the substance is capable of causing a particular injury or condition and that the substance in fact caused the plaintiff’s injury.”)). “Havner also requires the plaintiff to present some evidence excluding other plausible causes of the injury with reasonable certainty.” Chase v. Packing, No. 05-16-00620-CV, 2017 WL 2774449, at *1 (Tex. App.—Dallas June 27, 2017, no pet.) (mem. op.) (citing Havner, 953 S.W.2d at 720). As a result, “[e]xpert testimony is particularly necessary in toxic-tort and chemical-exposure cases, in which medically complex diseases and causal ambiguities compound the need for expert testimony.” Starr v. A.J. Struss & Co., No. 01-14-00702-CV, 2015 WL 4139028, at *6–7 (Tex. App.—Houston [1st Dist.] July 9, 2015, no pet.) (mem. op.) (citing Anderson, 87 S.W.3d at 602–04; Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 36–38 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (holding expert testimony required to show causation of reactive airway dysfunction syndrome)).

*3 Chandra did not introduce any expert testimony, and the trial court struck his affidavit and the portions of articles that he attached as summary judgment evidence.⁴ “Under a summary-judgment review, we may not consider struck portions of the record because such evidence is not a part of the summary-judgment record.” Sauls v. Munir Bata, LLC, No. 02-14-00208-CV, 2015 WL 3905671, at *5 (Tex. App.—Fort Worth June 11, 2015, no pet.) (mem. op.) (citing Trudy’s Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 898 n.2 (Tex. App.—Austin 2010, no pet.); Esty v. Beal Bank, S.S.B., 298 S.W.3d 280, 294 (Tex. App.—Dallas 2009, no pet.)); see Callahan v. Vitesse Aviation Servs., LLC, 397 S.W.3d 342, 347 (Tex. App.—Dallas 2013, no pet.). “[W]here evidence has been held to be inadmissible and that holding has not been challenged on appeal, this [C]ourt cannot consider the excluded evidence.” Beavers v. Aluminium Co. Of Am., No. 13-08-00214-CV, 2010 WL 881734, at *2 (Tex. App.—Corpus Christi Mar. 11, 2010, no pet.) (mem. op.) (quoting Taylor-Made Hose v. Wilkerson, 21 S.W.3d 484, 493 (Tex. App.—San Antonio 2000, pet. denied) (en banc) (op. on reh’g) (quoting Frazier v. Yu, 987 S.W.2d 607, 610 (Tex. App.—Fort Worth 1999, writ denied) (citing Inglish v. Prudential Ins. Co., 928 S.W.2d 702, 706 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (op. on reh’g); Rhodes v. Interfirst Bank Fort Worth, N.A., 719 S.W.2d 263, 265 (Tex. App.— Fort Worth 1986, no writ); Talbott v. Hogg, 298 S.W.2d 883, 889 (Tex. App.—Amarillo 1957, writ dism’d)). “Where excluded evidence is not the subject of a point of error, ‘plaintiffs have waived any right to complain about the exclusion.’ ” Id. (quoting Rhodes, 719 S.W.2d at 265 (quoting Talbott, 298 S.W.2d at 889)).

Because Chandra does not argue that the trial court erred by striking the attachments to his summary judgment motion, he has “waived any right to complain about the exclusion,” and we cannot consider the struck attachments as summary judgment evidence. Id. Without the stricken attachments, Chandra had no summary judgment evidence and failed to produce more than a scintilla of evidence establishing that his damages were caused by a toxic tort by DRS.⁵ See id. Consequently, the trial court’s summary judgment was proper.

We affirm the trial court’s judgment.

Footnotes
1	Originally appealed to the Fifth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We follow the precedent of the Fifth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2	Chandra’s employment with DRS was terminated in 2009.
3	The attached articles included these items: (1) the abstract portion of an article titled “Review Cadmium carcinogenesis” that was published in the “Mutation Research/Fundamental and Molecular Mechanisms of Mutagenesis,” which stated, “Cadmium exposure has also been linked to human prostate and renal cancer, although this linkage is weaker than for lung cancer”; (2) the first page of “Carcinogenic, teratogenic and mutagenic effects of cadmium” published in “Mutation Research/Reviews in Genetic Toxicology,” stating that cadmium “has been known as a toxic agent”; (3) the abstract of “Role of oxidative stress in cadmium toxicity and carcinogenesis” published in “Toxicology and Applied Pharmacology,” stating that cadmium “is a toxic metal, targeting the ... testes ... and causing ... tumors after prolonged exposures”; and (4) the abstract from “Current status of cadmium as an environmental health problem” published in “Toxicology and Applied Pharmacology,” stating that cadmium is a “toxic metal occurring in the environment naturally and as a pollutant emanating from industrial and agricultural sources” for which “recent data also suggest increased cancer risks ... in environmentally exposed populations.”
4	In any event, “[t]o raise a fact issue on causation and thus to survive legal sufficiency review, a claimant must do more than simply introduce into evidence epidemiological studies that show a substantially elevated risk.” Daniels v. Lyondell-Citgo Ref. Co., 99 S.W.3d 722, 728 (Tex. App.—Houston [1st Dist.] 2003, no pet.). As discussed by Daniels, A claimant must show that he or she is similar to those in the studies. This would include proof that (1) the injured person was exposed to the same substance, (2) the exposure or dose levels were comparable to or greater than those in the studies, (3) the exposure occurred before the onset of injury, (4) the timing of the onset of injury was consistent with that experienced by those in the study, and (5) if there are other plausible causes of the injury or condition that could be negated, the plaintiff must offer evidence excluding those causes with reasonable certainty. Havner, 953 S.W.2d at 720. Id.
5	Although Chandra’s pro se petition couched his toxic tort claim in terms of negligence, gross negligence, premises liability, and product liability, the gravamen of each complaint was that exposure to toxic chemicals caused Chandra’s colon and prostate cancers and other resulting damages including medical bills and pain and suffering.

Court of Appeals of Texas, Texarkana.

XL INSURANCE AMERICA, INC., Appellant

v.

Maurice COVINGTON, Appellees

No. 06-20-00048-CV

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Date Submitted: September 30, 2020

|

Date Decided: October 1, 2020

On Appeal from the 15th District Court, Grayson County, Texas, Trial Court No. CV-18-1732

Attorneys and Law Firms

Michael T. O’Connor, Bruce K. Thomas, for Appellees Covington, Maurice.

Andrew Z. Schreck, for Appellant.

W. Todd Parker, for Appellees Hill, Brian.

Before Morriss, C.J., Burgess and Stevens, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice Burgess

*1 XL Insurance America, Inc. (XL), has attempted to appeal from a June 2, 2020, order denying its amended petition in intervention, motion for apportionment, and motion for new trial. Appellee, Maurice Covington, has filed a motion to dismiss for want of jurisdiction, and XL has filed a response. Because this Court lacks jurisdiction over XL’s attempted appeal, we grant Covington’s motion and dismiss the appeal.¹

On March 2, 2020, the trial court entered an order granting plaintiff’s motion for dismissal and for final judgment. On March 18, 2020, XL filed its original petition in intervention. As recited in the petition, Covington sued Mark Teague, as independent administrator of and on behalf of the Estate of Nicholas Edwards and his heirs-in-law, for injuries sustained in a January 5, 2018, automobile accident. At the time of the accident, XL was the workers’ compensation insurance carrier for Covington’s employer. XL alleged that it paid a total of $1,913,885.85 in medical benefits and $99,885.02 in indemnity benefits to Covington, or on his behalf, as of March 18, 2020, and that it was subrogated to the rights of Covington against the defendant for these sums. XL further alleged that Covington, through his counsel, represented that defendant had a $30,000.00 insurance policy limit and therefore requested XL to waive its subrogation rights; it did so in reliance on the stated policy limits. XL further alleged that the defendant’s insurance carrier violated a Stowers² deadline and ultimately settled the case for an amount well in excess of the $30,000.00 insurance policy limit. As a result, XL sued in intervention to enforce its right of subrogation.

Also on March 18, 2020, XL filed (1) a motion for new trial in which it asked the trial court to vacate the March 2, 2020, final judgment and (2) a motion for apportionment in which it asked the trial court to conduct a hearing to determine how the settlement proceeds should be apportioned between it and any other parties claiming entitlement to those proceeds. On March 19, 2020, XL filed an amended petition in intervention. Following a hearing, the trial court determined that it lacked plenary jurisdiction to grant the intervenor’s petition and motions and therefore entered an order denying same on June 2, 2020. Covington contends that XL’s notice of appeal was untimely.

A trial court retains plenary power over its judgment for thirty days. TEX. R. CIV. P. 329b(g); Lane Bank Equip. Co. v. Smith So. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000). “A motion to modify, correct, or reform a judgment ... extend[s] the trial court’s plenary power to change its judgment beyond the initial thirty-day period” for up to an additional seventy-five days. Id. at 309–10; see Malone v. Hampton, 182 S.W.3d 465, 468 (Tex. App.—Dallas 2006, no pet.). A non-party, however, “may not move for a new trial or file a post-judgment motion to extend the court’s plenary jurisdiction unless the non-party successfully intervenes.” Malone, 182 S.W.3d at 468 (citing State & Cty. Mut. Fire Ins. Co. v. Kelly, 915 S.W.2d 224, 227 (Tex. App.—Austin 1996, orig. proceeding)). “A non-party successfully intervenes if he files a plea in intervention prior to the entry of judgment and the court does not strike the plea on the motion of a party.” Id. (citing In re Barrett, 149 S.W.3d 275, 279 (Tex. App.—Tyler 2004, orig. proceeding)). However, “a plea in intervention comes too late if filed after judgment and may not be considered unless and until the judgment has been set aside.” First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1984) (orig. proceeding) (per curiam).

*2 The trial court signed the final judgment on March 2, 2020. Although no party to the judgment filed a motion for new trial or to correct, modify, or reform the judgment, XL filed, as an intervenor, a motion for new trial. Because XL did not file its petition in intervention prior to the entry of the judgment and the judgment was not set aside within thirty days from its entry, XL’s petition in intervention was not effective, and its motion for new trial did not extend the trial court’s plenary jurisdiction. See Malone, 182 S.W.3d at 469. As a result, XL’s notice of appeal was due to be filed within thirty days of the final judgment, or on or before April 1, 2020. XL filed its notice of appeal on July 1, 2020, well beyond the April 1 deadline.

Yet, XL’s notice of appeal indicates that it is not appealing from the final judgment. Instead, it indicates that its appeal is taken from the June 2, 2020, order denying its petition in intervention and its motions. But, because the trial court entered its final order in this case on March 2, 2020, it lost plenary power over that judgment on April 1, 2020. The June 2, 2020, order was therefore issued at a time when the trial court no longer had plenary power over its judgment. “Judicial action taken after the court’s jurisdiction over a cause has expired is a nullity.” State ex rel. Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) (per curiam). Consequently, the June 2 order did not trigger the appellate timetable. See TEX. R. APP. P. 26.1; Malone, 182 S.W.3d at 470 (“The very purpose of limiting a trial court’s plenary power over a proceeding is to foreclose the possibility of a suit continuing indefinitely even though a final judgment has been obtained.”).

XL filed a response to Covington’s motion to dismiss, indicating that it is unopposed to the motion. Because this Court does not have jurisdiction to consider XL’s appeal, this case is ripe for dismissal.

In light of the foregoing, we dismiss the appeal for want of jurisdiction.

Footnotes
1	Originally appealed to the Fifth Court of Appeals in Dallas, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We are unaware of any conflict between precedent of the Fifth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
2	See G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W.2d 544 (Tex. Comm’n App. 1929, holding approved).

Court of Appeals of Texas, Texarkana.

REVERSE MORTGAGE FUNDING, LLC, Appellant

v.

Carla Nagle Blevins ROBERTSON, Appellee

No. 06-19-00063-CV

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Date Submitted: November 18, 2019

|

Date Decided: January 3, 2020

|

Motion for Reconsideration Denied January 3, 2020

|

Date Vacated: March 5, 2020

*53 On Appeal from the 115th District Court, Marion County, Texas, Trial Court No. 1900039, Hon. Dean Fowler, Judge.

Attorneys & Firms

William K. Gleason, Attorney at Law, Jefferson, for Appellee.

Mark D. Cronenwett, Mackie Wolf Zientz & Mann, PC, Dallas, for Appellant.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Burgess

The trial court entered a default judgment against Reverse Mortgage Funding, LLC (RMF), after it failed to timely answer a lawsuit filed against it by Carla Nagle Blevins Robertson. RMF filed a motion for new trial that was overruled by operation of law. RMF appeals. Because *54 we find that RMF failed to establish a prima facie meritorious defense to Robertson’s lawsuit, we affirm the trial court’s judgment.

I. Factual and Procedural Background

In 1995, Richard R. Nagle executed a will in which he left his “real property located at 1201 Pinehill Drive” in Jefferson to his wife, Katie Maurine Nagle, “to be used, occupied and enjoyed by her for and during her natural life.” According to the will, this property was to vest in Nagle’s daughters, Carla (Blevins) Robertson and Julie Hamm, on Katie’s death. In 2008, following Nagle’s death in 2005, Katie entered into a reverse mortgage loan agreement in the amount of $131,250.00 with the predecessor in interest to RMF,¹ secured by a deed of trust on the real property and improvements located at 1201 Pine Hill Drive in Jefferson, Marion County, Texas (the Property).

In a suit to quiet title to the Property filed on March 19, 2019, Robertson alleged that Katie’s life estate in the Property terminated when she died in March 2019. Robertson claimed that because Katie only owned a life estate in the Property, she lacked authority to enter into the reverse mortgage loan agreement. When RMF did not timely answer the lawsuit, the trial court entered a default judgment in favor of Robertson finding that

Robertson is the owner in fee simple of the house and lot(s) located at 1201 Pinehill Drive ... by virtue of the testate passage of same from her father, Richard R. Nagle, to her and her now deceased sister in a will probated in Marion County, Texas[,] on November 14, 2005[,] and recorded in Volume J-3 Page 144 et seq in probate Cause Number P006038.

The trial court further determined that “Katie Maurine Nagle acquired no ownership interest in said property and only acquired a life estate in said property which terminated on her death” and that the deeds of trust dated November 12, 2008, “are void and shall be released since the ‘borrower’ in said documents was Katie Maurine Nagle who was not ‘lawfully seised’ of the property as covenanted in the deeds of trust.” On May 6, 2019, RMF filed a motion for new trial that was overruled by operation of law.² See TEX. R. CIV. P. 329b(c).

II. Analysis

We review the trial court’s denial of a motion for new trial for an abuse of discretion. Action Powersports, Inc. v. 1STEL, Inc., 500 S.W.3d 632, 639 (Tex. App.—Texarkana 2016, no pet.) (citing Director, State Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)). Following the entry of a default judgment, the defaulting party is entitled to a new trial when

(1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided (2) the motion for *55 a new trial sets up a meritorious defense; and (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 82–83 (Tex. 1992) (citing Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939)). It is undisputed that RMF’s failure to answer was not intentional and that the granting of a motion for new trial would not have occasioned delay or otherwise worked an injury to Robertson. The dispositive question is whether RMF set up a meritorious defense.

To determine if RMF set up a meritorious defense, we look to the facts alleged in RMF’s motion and supporting affidavit, regardless of whether those facts are controverted. See Dir., State Employees Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 270 (Tex. 1994). “The motion must allege facts which in law would constitute a defense to the cause of action asserted by the plaintiff and must be supported by affidavits or other evidence proving prima facie that the defendant has such meritorious defense.” Estate of Pollack v. McMurrey, 858 S.W.2d 388, 392 (Tex. 1993) (quoting Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966)). If proven, a meritorious defense would cause a different—although not necessarily opposite—result on retrial. Comanche Nation v. Fox, 128 S.W.3d 745, 751 (Tex. App.—Austin 2004, no pet.). The trial court is not permitted, however, to try the defensive issues in deciding whether to set aside the default judgment. Estate of Pollack, 858 S.W.2d at 392. The existence of a meritorious defense is thus a “legal question[ ] for which the no-contrary-evidence rule was established in Guar. Bank v. Thompson, 632 S.W.2d 338, 339 (Tex. 1982).” George v. Smith, No. 06-01-00019-CV, 2002 WL 91355, at *4 n.2 (Tex. App.—Texarkana Jan. 25, 2002, no pet.) (mem. op.).

In its motion for new trial, RMF alleged: (1) “Defendant has meritorious defenses to Plaintiff’s claims because it is a bona fide mortgagee,” (2) “Even if Plaintiff’s allegations regarding Ms. Nagle’s interest in the Property [are true], which Defendant does not admit, Defendant is protected as a bona fide mortgagee,” (3) “Ms. Nagle signed a deed of trust for a reverse mortgage on November 12, 2008[,] in favor of James B. Nutter & Company,” (4) “The deed of trust lien was subsequently transferred to Defendant,” (5) “An Assignment of Mortgage/Deed of Trust dated March 1, 2018[,] was recorded in the official property records for Marion County, Texas[,] in Volume 976, Page 418,” (6) “Defendant had no actual knowledge of the probate records, nor did it have constructive notice,” and (7) “Defendant has a good faith defense to Plaintiff’s claims that it is a bona fide mortgagee and holds a valid, enforceable lien on the Property.”

“Under section 13.001 [of the Texas Property Code], a lender can be a bona fide mortgagee, if the lender takes a lien in good faith, for valuable consideration, and without actual or constructive notice of outstanding claims.” Noble Mortg. & Invs., LLC v. D & M Vision Invs., LLC, 340 S.W.3d 65, 76 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 769 (Tex. 1983)). “A bona fide mortgagee is entitled to the same protections as a bona fide purchaser.”³ Id. (citing *56 Graves v. Guar. Bond State Bank, 161 S.W.2d 118, 120 (Tex. App.—Texarkana 1942, no writ)).

Noticeably absent from RMF’s factual allegations in its motion for new trial are any allegations supporting RMF’s claim that it did not have actual knowledge of Robertson’s claim to the Property. It is evident that RMF was unaware of Robertson’s ownership interest in the Property at the time the mortgage was executed and at the time it purchased the mortgage. If RMF had such knowledge, it would not have purchased the mortgage. Yet, “in legal parlance, actual knowledge embraces those things of which the one sought to be charged has express information, and likewise those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.” Champlin Oil & Ref. Co. v. Chastain, 403 S.W.2d 376, 388 (Tex. 1965) (quoting Hexter v. Pratt, 10 S.W.2d 692, 693 (Tex. Comm’n App. 1928, judgm’t adopted) (“Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge.”)). RMF failed to allege any facts in its motion for new trial in support of its conclusory statement that it lacked actual knowledge of Robertson’s claim.

Likewise, RMF’s motion for new trial is devoid of factual allegations supporting its claim that it did not have constructive notice of Nagle’s will. See, e.g., Sw. Title Ins. Co. v. Woods, 449 S.W.2d 773, 774 (Tex. 1970) (holding that recorded instrument not in chain of title does not establish constructive notice); Hue Nguyen v. Chapa, 305 S.W.3d 316, 323 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding that unrecorded conveyance of interest in real property is void as to subsequent purchaser who purchases property for valuable consideration without notice).

To claim the status of a bona fide mortgagee, RMF was bound to support its conclusory statements that it had no actual or constructive notice of Robertson’s claim to the Property with verified allegations of fact. See Estate of Pollack, 858 S.W.2d at 392. Because no such allegations appear in RMF’s motion for new trial, it failed to establish a prima facie meritorious defense.

We, therefore, affirm the trial court’s judgment.

SUPPLEMENTAL MEMORANDUM OPINION

Ralph K. Burgess, Justice

On November 25, 2019, we issued an opinion affirming the trial court’s judgment in this matter. On December 10, 2019, Reverse Mortgage Funding, LLC (Reverse Mortgage), filed a motion for rehearing. While we ultimately overruled the motion for rehearing, on January 3, 2020, we withdrew our opinion dated November 25, 2019, and issued a new opinion further explaining our rationale for affirming the trial court’s judgment. On January 21, 2020, Reverse Mortgage filed a second motion for rehearing stemming from our January 3, 2020, opinion. We overruled Reverse Mortgage’s second motion for rehearing. Then on February 24, 2020, the parties filed a joint motion stating that they had reached a settlement of their disputes, asking that we withdraw our January 3, 2020, opinion, and seeking to have the appeal dismissed.

We grant that part of the parties’ joint motion seeking to dismiss the appeal. However, we deny the portion of the motion asking that we withdraw our January 3, 2020, opinion. See TEX. 8 R. APP. P. 42.1(c). “A settlement does not automatically *57 require the vacating of a court of appeals’ opinion—either by [the Supreme Court of Texas] or by the intermediate appellate court.” Houston Cable TV, Inc. v. Inwood W. Civic Ass’n, 860 S.W.2d 72, 73 (Tex. 1993) (per curiam). Because “courts are endowed with a public purpose,” “a private agreement between litigants should not operate to vacate a court’s writing on matters of public importance.” Id. We have determined that our January 3, 2020, opinion addresses matters of public importance; consequently, the opinion will not be withdrawn.

We vacate our January 3, 2020, judgment, dismiss the appeal, and, in keeping with the parties’ request, order that Reverse Mortgage bear the costs of this appeal.

Footnotes
1	The deed of trust was executed in favor of James B. Nutter & Company and was assigned to RMF on March 1, 2018. The initial deed of trust granted James B. Nutter & Co. a lien on the Property to secure payment of the note. Katie executed a second deed of trust, granting a lien on the Property to the Secretary of Housing and Urban Development to secure payment on the note. Both deeds were executed on November 12, 2008, and both were filed for record in the real property records of Marion County, Texas.
2	The trial court held a hearing on the motion for new trial on May 30, 2019. At the conclusion of the hearing, the trial court announced its intention to deny the motion for new trial, but it did not enter a written order.
3	Although status as a bona fide purchaser is an affirmative defense in a title dispute, “[t]o receive this special protection, one must acquire property in good faith, for value, and without notice of any third-party claim or interest.” Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001).

Court of Appeals of Texas, Texarkana.

REVERSE MORTGAGE FUNDING, LLC, Appellant

v.

Carla Nagle Blevins ROBERTSON, Appellee

No. 06-19-00063-CV

|

Date Submitted: November 18, 2019

|

Date Decided: January 3, 2020

|

Motion for Reconsideration Denied January 3, 2020

|

Date Vacated: March 5, 2020

On Appeal from the 115th District Court, Marion County, Texas, Trial Court No. 1900039

Attorneys & Firms

William K. Gleason, for Appellee.

Mark D. Cronenwett, Dallas, for Appellant.

Before Stevens, JJ.

OPINION

Opinion by Justice Burgess

*1 The trial court entered a default judgment against Reverse Mortgage Funding, LLC (RMF), after it failed to timely answer a lawsuit filed against it by Carla Nagle Blevins Robertson. RMF filed a motion for new trial that was overruled by operation of law. RMF appeals. Because we find that RMF failed to establish a prima facie meritorious defense to Robertson’s lawsuit, we affirm the trial court’s judgment.

I. Factual and Procedural Background

In 1995, Richard R. Nagle executed a will in which he left his “real property located at 1201 Pinehill Drive” in Jefferson to his wife, Katie Maurine Nagle, “to be used, occupied and enjoyed by her for and during her natural life.” According to the will, this property was to vest in Nagle’s daughters, Carla (Blevins) Robertson and Julie Hamm, on Katie’s death. In 2008, following Nagle’s death in 2005, Katie entered into a reverse mortgage loan agreement in the amount of $131,250.00 with the predecessor in interest to RMF,¹ secured by a deed of trust on the real property and improvements located at 1201 Pine Hill Drive in Jefferson, Marion County, Texas (the Property).

In a suit to quiet title to the Property filed on March 19, 2019, Robertson alleged that Katie’s life estate in the Property terminated when she died in March 2019. Robertson claimed that because Katie only owned a life estate in the Property, she lacked authority to enter into the reverse mortgage loan agreement. When RMF did not timely answer the lawsuit, the trial court entered a default judgment in favor of Robertson finding that

Robertson is the owner in fee simple of the house and lot(s) located at 1201 Pinehill Drive ... by virtue of the testate passage of same from her father, Richard R. Nagle, to her and her now deceased sister in a will probated in Marion County, Texas[,] on November 14, 2005[,] and recorded in Volume J-3 Page 144 et seq in probate Cause Number P006038.

The trial court further determined that “Katie Maurine Nagle acquired no ownership interest in said property and only acquired a life estate in said property which terminated on her death” and that the deeds of trust dated November 12, 2008, “are void and shall be released since the ‘borrower’ in said documents was Katie Maurine Nagle who was not ‘lawfully seised’ of the property as covenanted in the deeds of trust.” On May 6, 2019, RMF filed a motion for new trial that was overruled by operation of law.² See TEX. R. CIV. P. 329b(c).

II. Analysis

*2 We review the trial court’s denial of a motion for new trial for an abuse of discretion. Director, State Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)). Following the entry of a default judgment, the defaulting party is entitled to a new trial when

(1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided (2) the motion for a new trial sets up a meritorious defense; and (3) is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.

Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939)). It is undisputed that RMF’s failure to answer was not intentional and that the granting of a motion for new trial would not have occasioned delay or otherwise worked an injury to Robertson. The dispositive question is whether RMF set up a meritorious defense.

To determine if RMF set up a meritorious defense, we look to the facts alleged in RMF’s motion and supporting affidavit, regardless of whether those facts are controverted. See George v. Smith, No. 06-01-00019-CV, 2002 WL 91355, at *4 n.2 (Tex. App.—Texarkana Jan. 25, 2002, no pet.) (mem. op.).

In its motion for new trial, RMF alleged: (1) “Defendant has meritorious defenses to Plaintiff’s claims because it is a bona fide mortgagee,” (2) “Even if Plaintiff’s allegations regarding Ms. Nagle’s interest in the Property [are true], which Defendant does not admit, Defendant is protected as a bona fide mortgagee,” (3) “Ms. Nagle signed a deed of trust for a reverse mortgage on November 12, 2008[,] in favor of James B. Nutter & Company,” (4) “The deed of trust lien was subsequently transferred to Defendant,” (5) “An Assignment of Mortgage/Deed of Trust dated March 1, 2018[,] was recorded in the official property records for Marion County, Texas[,] in Volume 976, Page 418,” (6) “Defendant had no actual knowledge of the probate records, nor did it have constructive notice,” and (7) “Defendant has a good faith defense to Plaintiff’s claims that it is a bona fide mortgagee and holds a valid, enforceable lien on the Property.”

*3 “Under section 13.001 [of the Texas Property Code], a lender can be a bona fide mortgagee, if the lender takes a lien in good faith, for valuable consideration, and without actual or constructive notice of outstanding claims.” Graves v. Guar. Bond State Bank, 161 S.W.2d 118, 120 (Tex. App.—Texarkana 1942, no writ)).

Noticeably absent from RMF’s factual allegations in its motion for new trial are any allegations supporting RMF’s claim that it did not have actual knowledge of Robertson’s claim to the Property. It is evident that RMF was unaware of Robertson’s ownership interest in the Property at the time the mortgage was executed and at the time it purchased the mortgage. If RMF had such knowledge, it would not have purchased the mortgage. Yet, “in legal parlance, actual knowledge embraces those things of which the one sought to be charged has express information, and likewise those things which a reasonably diligent inquiry and exercise of the means of information at hand would have disclosed.” Hexter v. Pratt, 10 S.W.2d 692, 693 (Tex. Comm’n App. 1928, judgm’t adopted) (“Where there is a duty of finding out and knowing, negligent ignorance has the same effect in law as actual knowledge.”)). RMF failed to allege any facts in its motion for new trial in support of its conclusory statement that it lacked actual knowledge of Robertson’s claim.

Likewise, RMF’s motion for new trial is devoid of factual allegations supporting its claim that it did not have constructive notice of Nagle’s will. See, e.g., Hue Nguyen v. Chapa, 305 S.W.3d 316, 323 (Tex. App.—Houston [14th Dist.] 2009, pet. denied) (holding that unrecorded conveyance of interest in real property is void as to subsequent purchaser who purchases property for valuable consideration without notice).

To claim the status of a bona fide mortgagee, RMF was bound to support its conclusory statements that it had no actual or constructive notice of Robertson’s claim to the Property with verified allegations of fact. See Estate of Pollack, 858 S.W.2d at 392. Because no such allegations appear in RMF’s motion for new trial, it failed to establish a prima facie meritorious defense.

We, therefore, affirm the trial court’s judgment.

SUPPLEMENTAL MEMORANDUM OPINION

Ralph K. Burgess, Justice

On November 25, 2019, we issued an opinion affirming the trial court’s judgment in this matter. On December 10, 2019, Reverse Mortgage Funding, LLC (Reverse Mortgage), filed a motion for rehearing. While we ultimately overruled the motion for rehearing, on January 3, 2020, we withdrew our opinion dated November 25, 2019, and issued a new opinion further explaining our rationale for affirming the trial court’s judgment. On January 21, 2020, Reverse Mortgage filed a second motion for rehearing stemming from our January 3, 2020, opinion. We overruled Reverse Mortgage’s second motion for rehearing. Then on February 24, 2020, the parties filed a joint motion stating that they had reached a settlement of their disputes, asking that we withdraw our January 3, 2020, opinion, and seeking to have the appeal dismissed.

We grant that part of the parties’ joint motion seeking to dismiss the appeal. However, we deny the portion of the motion asking that we withdraw our January 3, 2020, opinion. See TEX. 8 Houston Cable TV, Inc. v. Inwood W. Civic Ass’n, 860 S.W.2d 72, 73 (Tex. 1993) (per curiam). Because “courts are endowed with a public purpose,” “a private agreement between litigants should not operate to vacate a court’s writing on matters of public importance.” Id. We have determined that our January 3, 2020, opinion addresses matters of public importance; consequently, the opinion will not be withdrawn.

We vacate our January 3, 2020, judgment, dismiss the appeal, and, in keeping with the parties’ request, order that Reverse Mortgage bear the costs of this appeal.

Footnotes
1	The deed of trust was executed in favor of James B. Nutter & Company and was assigned to RMF on March 1, 2018. The initial deed of trust granted James B. Nutter & Co. a lien on the Property to secure payment of the note. Katie executed a second deed of trust, granting a lien on the Property to the Secretary of Housing and Urban Development to secure payment on the note. Both deeds were executed on November 12, 2008, and both were filed for record in the real property records of Marion County, Texas.
2	The trial court held a hearing on the motion for new trial on May 30, 2019. At the conclusion of the hearing, the trial court announced its intention to deny the motion for new trial, but it did not enter a written order.
3	Although status as a bona fide purchaser is an affirmative defense in a title dispute, “[t]o receive this special protection, one must acquire property in good faith, for value, and without notice of any third-party claim or interest.” Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001).

Court of Appeals of Texas, Texarkana.

Charles Duncan MCMILLAN d/b/a Anthony Sign Company, Appellant

v.

Kelly Shane HEARNE, Appellee

No. 06-18-00040-CV

|

Date Submitted: May 8, 2019

|

Date Decided: July 22, 2019

*509 On Appeal from the 6th District Court, Lamar County, Texas, Trial Court No. 85944. Will Biard, Judge

Attorneys & Firms

Sarah L. Kaminar, The Moore Law Firm, LLP, 100 North Main St., Paris, TX 75460, for Appellant.

T. Dean Malone, Law Offices of Dean Malone PC, 900 Jackson St., Ste. 730, Dallas, TX 75202, for Appellee.

Before Stevens, JJ.

OPINION

Opinion by Justice Burgess

*510 On November 2, 2016, Kelly Shane Hearne filed a personal injury suit against his employer, Charles Duncan McMillan d/b/a Anthony Sign Company (McMillan), a nonsubscriber to the workers’ compensation system. See TEX. LAB. CODE ANN. § 406.033. Hearne alleged that on September 14, 2015, while he was at the top of a commercial extension ladder, he fell as a result of the ladder slipping after McMillan stopped supporting the ladder at the bottom. The jury found that McMillan was liable for Hearne’s injuries, and it awarded him past and future damages in the amount of $427,818.38.

McMillan appeals, maintaining that (1) the evidence was legally and factually insufficient to support the jury’s finding of negligence and (2) the trial court committed reversible error by failing to offset the jury’s award of past medical damages in the appropriate amount. Hearne cross-appealed, contending that (1) the trial court erred in failing to render judgment on the jury verdict for all the past damages awarded by the jury, (2) even if the trial court had authority to award an offset to McMillan, it erred in doing so because the offset violated the collateral source rule and McMillan failed to obtain findings on which he had the burden of proof, and (3) alternatively, the judgment should be modified to reflect an offset in past damages in the amount of $65,521.88.

For the reasons below, we affirm the trial court’s judgment, as modified.

I. Background

In September 2015, McMillan had been hired to restore the marquee sign of the Grand Theatre in Paris, Texas. At the time, Hearne had been working for McMillan for about twenty-five years. According to Hearne, per McMillan’s instructions, he had gone to the theatre in the company bucket truck where he tried, but failed, to reach the sign by using the bucket. In a subsequent effort to reach the sign, Hearne intended to access the roof from the inside of the theatre. To that end, Hearne contacted McMillan and asked him to bring the thirty-foot-long extension ladder that was kept on McMillan’s truck. McMillan complied with Hearne’s request and brought the ladder to the theatre.

Hearne testified that after McMillan arrived, he carried the “fly” or expansion portion of the ladder inside the theatre, while McMillan carried the bottom portion of the ladder. According to Hearne, the two of them began to position the fly portion of the ladder to access the theater attic. Hearne then climbed the ladder while McMillan held it at the bottom. When Hearne reached the attic, he realized his flashlight was not working. Hearne told McMillan that he needed to retrieve another flashlight or find some new batteries. Hearne testified that he believed McMillan would wait for him to descend the ladder.

Hearne began descending the ladder; however, when he looked down, he saw that McMillan had walked away from the ladder and was exiting the theatre. According to Hearne, the ladder almost immediately slipped, and Hearne fell to the *511 concrete floor. Hearne attempted to save himself by reaching around him, but because the attic floor was made of smooth plywood, there was nothing he could hold onto.

McMillan disputed Hearne’s version of events. McMillan testified that when he arrived at the theatre, he carried the extension ladder into the building and placed it on the floor near the area in which Hearne was standing. McMillan testified that he told Hearne “to hold on and that he was going to go retrieve a flashlight.” When asked where Hearne was located at the time he went to get the flashlight, McMillan stated, “Standing right where he had been, right between where I was standing and where the hatch was -- or where the -- area of the hatch.” According to McMillan, both Hearne and the extension ladder were standing on the floor when he walked out of the theatre.

McMillan explained that the truck was near the theatre door. He stated, “So I just walked around it, opened up the side bin, and was about to -- I think I picked up the flashlight, and then I heard [Hearne] screaming.” McMillan ran back inside the theatre where he saw Hearne “laying on the floor in pain.” McMillan stated that the ladder was on the ground in its extended position. Thus, McMillan maintained that he was not present when Hearne fell and that he never supported the ladder for Hearne.

Immediately following his fall, Hearne was airlifted to the Medical Center of Plano, where he received surgery on his hip. Two or three days later, he underwent surgery on his wrist, elbow, and shoulder. According to Hearne, three of his ribs and his collarbone were also broken. Although McMillan did not carry workers’ compensation insurance, he provided an Occupational Injury Benefit Plan (the Plan) that paid certain benefits, including medical expenses to, or on behalf of, Hearne. After the incident, Hearne sued McMillan for negligence. McMillan sought an offset against the damages paid to Hearne for benefits paid by the Plan. The jury found in favor of Hearne. The trial court found that McMillan was entitled to an offset in the amount of $91,911.02. It then entered judgment in favor of Hearne for the amounts awarded by the jury, less offset. This appeal followed.

II. The Evidence Was Sufficient to Support the Trial Court’s Judgment Regarding McMillan’s Liability to Hearne

A. Introduction

Hearne contends that McMillan was negligent when he, among other things, (1) failed to adequately help Hearne in the performance of his work, (2) failed to provide a safe place for McMillan to work when he provided him with an unsafe ladder, and (3) failed to inspect the ladder. In his first and second issues, McMillan contends that there was legally and factually insufficient evidence to support the jury’s finding of negligence.

B. Standard of Review

In determining legal sufficiency, the appellate court examines “whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” Id. The evidence is legally insufficient if

(1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by rules of law or of evidence giving weight to the only evidence offered to prove a vital fact; (3) *512 the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital fact.

Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010).

More than a scintilla of evidence exists when the evidence reaches a level enabling reasonable and fair-minded people to differ in their conclusions. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

When reviewing a jury verdict for factual sufficiency of the evidence, we consider and weigh all the evidence and only set aside the verdict if “we determine that the credible evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered.” Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam).

C. Applicable Law

To prove negligence, evidence must be produced to establish a duty, a breach of duty, and damages proximately caused by the breach. id.

D. Analysis

1. McMillan Owed a Duty of Care to Hearne, and He Breached that Duty

a. Applicable Law

An employer has a primary, continuing, and nondelegable duty to provide a safe place and safe conditions in which employees may work. Woodlawn Mfg., Inc. v. Robinson, 937 S.W.2d 544 (Tex. App.—Texarkana 1996, writ denied).

McMillan contends that the “simple tool doctrine” negated any duty he had to, among other things, furnish a safe ladder *513 or train Hearne on how to safely operate the ladder. The simple tool doctrine relieves an employer of the duty to inspect a tool if that tool is committed to the control and care of the employee and is of such character that the employee who handles it should be fully acquainted with its condition. Swearingen v. Bell, 307 S.W.2d 132 (Tex. Civ. App.—San Antonio 1957, no writ).

In Id. at 133.

b. Discussion

Pointing out that Hearne had been McMillan’s employee for more than twenty-years and that he was required to use ladders frequently in carrying out his tasks, McMillan maintains, “Having entrusted the ladder to Mr. Hearne’s use, as a common tool, [he] owed no duty to instruct Mr. Hearne on its use, warn him of its dangers, or conduct regular safety inspections of the ladder.” Hearne conceded that he used the ladder frequently and was aware the ladder had been modified.¹ However, although Hearne had used the ladder on a frequent basis, the evidence in this case does not show that the ladder was committed to Hearne’s exclusive control or that Hearne was responsible for its care.

Moreover, the ladder was a modified, thirty-foot commercial extension ladder consisting of two separate pieces² and not, as was the case in Robison, 457 S.W.3d at 186.

Because Hearne testified that McMillan stopped supporting the ladder as he was descending, Hearne’s testimony is some evidence establishing that McMillan breached his duty of care to Hearne. Although McMillan disputed Hearne’s testimony, the jury, as fact-finder, was free to reject McMillan’s version of events and accept Hearne’s. Accordingly, the evidence in this case was sufficient to establish that *514 McMillan breached his duty of care to Hearne and, therefore, was negligent.

2. McMillan’s Negligence Proximately Caused Hearne’s Injuries

a. Applicable Law

Proximate cause consists of both cause in fact and foreseeability, both of which must be shown to exist. Enloe v. Barfield, 422 S.W.2d 905, 908 (Tex. 1967)).

Cause in fact “requires proof that an act or omission was a substantial factor in bringing about injury which would not otherwise have occurred.” Clifton v. Wilson Indus., Inc., 589 S.W.2d 498, 500 (Tex. App.—Texarkana 1979, writ ref’d n.r.e.).

b. Analysis

McMillan maintains that Hearne was unsuccessful in proving that but for McMillan’s actions, Hearne would not have fallen. McMillan contends that the only testimony offered by Hearne as to the cause of his injuries was that of Hearne’s expert, Jason English, a safety engineer, and that his testimony was insufficient to prove causation.³ McMillan also maintains *515 that although the occurrence complained of—falling off a ladder—was within the general experience of the jury, the causal connection between Hearne’s falling off the ladder and any breach of duty by McMillan was not.

Establishing causation in this case required Hearne to bring forth sufficient facts so that the evidence, and its logical inferences, supported a reasonable probability that McMillan’s actions were a substantial factor in bringing about his injuries. See Lenger v. Physician’s Gen. Hosp., 455 S.W.2d 703, 706 (Tex. 1970).

Moreover, lay opinion is adequate to prove causation where general experience and common sense enable a layperson to determine, with reasonable probability, the causal relationship between the event and the condition. N. Assurance Co. of Am. v. Taylor, 540 S.W.2d 832 (Tex. Civ. App.—Texarkana 1976, writ ref’d n.r.e.).

Both at trial and on appeal, Hearne relies heavily on the allegations that (1) McMillan had a duty to continue supporting the ladder while he was on the ladder, (2) he breached that duty by abruptly letting go of it, and (3) his fall, and resulting injuries, occurred because of McMillan’s actions. Here, “causation was not a matter for experts alone and did not require a technical or scientific explanation; it was within the jury’s ability to determine on its own what caused the accident and resulting injuries.” See K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 361 (Tex. 2000)).⁴

Even so, English testified that in the event the ladder was used, it should have been held. He also stated in his report that McMillan’s failure to continue holding the ladder for Hearne and the unsafe condition of the ladder,⁵ together *516 with McMillan’s failure to establish and implement a ladder safety and inspection program, including training, created an unreasonably dangerous work environment that ultimately caused Hearne’s injuries. Regardless of whether the jury relied upon its “general experience and common sense” or whether it relied upon English’s testimony, or both, the evidence established, “with reasonable probability, the causal relationship between” McMillan’s act of letting go of the ladder and Hearne’s fall from the top of the ladder to the concrete floor. See Morgan, 675 S.W.2d at 733.

The other aspect of proximate cause—foreseeability—requires proof that the actor, as a person of ordinary intelligence, anticipated the danger that his negligent actions created for others. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 549 (Tex. 1985)).

McMillan argues that Hearne failed to prove foreseeability specifically. McMillan points to Hearne’s lengthy work history and his familiarity with the ladder. For example, McMillan contends that the evidence showed Hearne knew that the fly portion of the ladder had been modified and that it could not have been adjusted to accommodate the ground surface. Yet, Hearne voiced no safety concerns to him, but continued to use the ladder despite knowing that there was a safer alternative. McMillan maintains that if Hearne could not have foreseen the possibility of injury, then the jury could not have made a reasonable inference that McMillan could have foreseen the possibility of injury.⁶

Again, McMillan’s contention omits entirely Hearne’s allegation that McMillan was negligent because he abruptly stopped supporting the ladder while Hearne was at the top of it. Notably, at trial, McMillan was asked if he would ever permit someone to climb the ladder without another person at the bottom supporting it, to which he responded, “Not like that, not like what [Hearne] described.” McMillan also testified that had he known “Hearne was using the ladder like he claims he used it on this concrete surface with just the fly portion with those pieces of steel or metal on the ground,” he would not have allowed Hearne to do so. According to McMillan, had he known Hearne was using the ladder without someone supporting him, he would have terminated his employment.

In addition, McMillan explained how the ladder should have been supported in a “proper and safe way” in order to prevent the feet from slipping. “What I would do would be to put both of my feet on the ends of the ladder and then hold onto the side of the ladder.” McMillan said that in the event he was supporting the ladder for another person, he would never walk away *517 because “[t]oo many things could happen, and none of them would be good.”

Although McMillan asserted that he had not been supporting the ladder for Hearne and that he had not walked away from Hearne while he was on the ladder, McMillan’s explanation assumes that the failure to take such actions would be dangerous. Thus, McMillan’s testimony constitutes some evidence that such a failure would create a danger of injury to others. Therefore, McMillan’s own testimony establishes the foreseeability element of proximate cause.

It is true that the jury was presented with two versions of what occurred on the day of the incident, but, as the trier of fact, the jury was the sole judge of the credibility of the witnesses and the weight to be given to the evidence. Herbert v. Herbert, 754 S.W.2d 141, 144 (Tex. 1988). In this case, when the jury resolved the inconsistencies in the evidence, it chose to believe Hearne’s account rather than McMillan’s. The jury was well within its discretion to make that determination. Accordingly, we find there was legally and factually sufficient evidence to support the jury’s verdict. We overrule McMillan’s first and second points of error.

III. The Evidence Was Sufficient to Support the Trial Court’s Judgment Regarding Damages

A. Introduction and Standard of Review

The jury awarded Hearne $162,818.38 in past damages and $265,000.00 in future damages. Yet, in its final judgment, the trial court awarded Hearne $70,907.36 in past damages, finding that McMillan was entitled to a $91,911.02 offset. In making its determination, the trial court considered payments made to Hearne, or on his behalf, from the Plan which McMillan had procured in 2013 from the Life Insurance Company of North America.⁷ Both parties challenge the $91,911.02 offset contained in the trial court’s final judgment. Resolution of the parties’ points of error requires us to interpret TEX LAB. CODE ANN. § 406.033.

In interpreting a statute, our primary objective is to give effect to the Legislature’s intent. Id. The Texas Supreme Court then observed,

To discourage employers from [opting out of the workers’ compensation system], the Legislature included within the Act a penalty provision, similar to section 406.033, that precluded nonsubscribing employers from relying on the traditional common-law defenses—contributory negligence, assumption of the *518 risk, and fellow servant—in defending against their employees’ personal-injury actions.

Id. at 350.⁸

The Texas Supreme Court went on to hold that “[b]ecause we should liberally construe the Workers’ Compensation Act in favor of the injured worker, a strained or narrow construction of Section 406.033 in Hearne’s favor and avoid construing it in a manner that implies nonstatutory restrictions on his rights as an employee in a nonsubscriber case.

B. Hearne’s First Cross-Point of Error

In his first cross-point of error, Hearne contends that the trial court had no discretion to offset the jury’s award of past damages; instead, he argues that issue was for the jury to determine. We first note that “[t]he right of offset is an affirmative defense.” Tarrant Cty. Waste Disposal, Inc. v. Doss, 737 S.W.2d 607, 611 (Tex. App.—Fort Worth 1987, writ denied).

However, Hearne further argues that even though McMillan may have pled his offset defense, he waived that defense by failing to submit the question to the jury. Hearne cites to Haygood and misapplies the case here.

In Id. at 398.

Although the majority disagreed with the dissent’s suggestion that reductions in payments made to providers from the amounts charged should be submitted to the trial court post-verdict, the thrust of the case very clearly centered on the court’s holding that a plaintiff could not recover medical expenses that neither the plaintiff nor the insurance company actually paid and that he could not present such evidence to the jury because it would be irrelevant. Id. at 400.

Thus, Doss, 737 S.W.2d at 611. Accordingly, we find that the trial court was within its discretion in making a post-verdict determination of offset, and McMillan did not waive the issue on appeal.

*520 Hearne’s first cross-point of error is overruled.

C. Hearne’s Second Cross-Point of Error

Next, Hearne contends that because the Plan paid for Hearne’s past medical expenses and lost wages, the collateral source rule prevented the award of an offset of damages.¹¹ “The theory behind the collateral source rule is that a wrongdoer should not have the benefit of insurance independently procured by the injured party, and to which the wrongdoer was not privy.”¹² Taylor v. American Fabritech, Inc., the Houston Court of Appeals explained:

The collateral source rule is both a rule of evidence and damages. Generally, it precludes a tortfeasor from obtaining the benefit of, or even mentioning, payments to the injured party from sources other than the tortfeasor. In other words, the defendant is not entitled to present evidence of, or obtain an offset for, funds received by the plaintiff from a collateral source. When the defendant tortfeasor is the employer of the injured plaintiff, payments made under an employee benefit plan create a particular puzzle. Basically, if the benefit plan is a fringe benefit for the employee, it is considered a collateral source in regard to the employer, but if the benefit was purchased for the primary purpose of protecting the employer, then the plan is not a collateral source as against the employer. The reasoning is simple: if the plan was purchased for the benefit of the employer[,] then it should be entitled to an offset for payments from the plan to the injured employee.

Taylor v. Am. Fabritech, Inc., 132 S.W.3d 613, 626 (Tex. App.—Houston [14th Dist.] 2004, pet. denied) (citations omitted).

The appellate court in Id. at 627 (finding that payments made by employer’s insurance carrier pursuant to its accident policy covering occupational injuries did not constitute a collateral source and that nonsubscriber was entitled to offset).

In Id.

After explaining the purpose of the collateral source rule, the Eastland Court of Appeals stated, “However, when the wrongdoer ‘has provided for those damages, either by personal payment or insurance payment, the damage claim has been satisfied’; to permit the injured party in such circumstances to keep the insurance money and also collect from the wrongdoer ‘would be a double recovery not sanctioned by law.’ ” Id.

In this case, the Plan stated that it was established to provide benefits for covered employees. “The purpose of the Plan is to provide (i) certain medical benefits for Covered Employees who sustain an occupational injury; (ii) certain wage replacement benefits to Covered Employees who sustain an occupational injury; and (iii) [i]n some cases, certain death or dismemberment benefits.” In addition, Section six of the Plan, entitled “Exclusions,” stated, “No benefits shall be payable under the Plan for any of the following: (a) Losses or expenses that result from an activity outside the Covered Employee’s Scope of Employment.” (Emphasis added).

The Plan also contained a paragraph, entitled “NO COLLATERAL SOURCE,” which stated,

Benefit payments made under this Plan shall be considered to be made by the Employer of a Covered Employee and shall not be considered payment from a collateral source as that term is defined by rules, statutes, judicial decisions or directives. All payments under this Plan shall be offset against any judgment against the Company, its officers, directors, or agents which may be taken by a Covered Employee or Covered Employee’s beneficiaries, heirs, or assigns, resulting from an occupational injury or Death.

As was the case in Taylor, 132 S.W.3d 613.

Although there was little, if any, testimony as to its purpose, the Plan’s language clearly stated that coverage was solely available for occupational injuries and wage replacement in the event an employee suffered an injury on the job. It did not, however, cover such things as *522 medical expenses incurred by Hearne in the event of an illness¹³ or any activity outside his scope of his employment. Although the Plan clearly provided some benefits to Hearne, we find that the primary purpose of the Plan was to protect McMillan. Consequently, the collateral source rule is inapplicable, and McMillan was entitled to a post-verdict offset of the jury’s award of past damages.¹⁴

Hearne’s second cross-point of error is overruled.

*523 D. McMillan’s Third Point of Error and Hearne’s Third Cross-Point of Error

Having found that McMillan did not waive the offset issue and that the payments made by the Plan did not constitute a collateral source payment, the question remains: What amount, if any, was McMillan entitled to receive as an offset?

In his offer of proof, made outside of the jury’s presence, McMillan presented the testimony of Matt Reiter, a claims manager for Caprock Claims.¹⁵ Reiter testified that the Plan paid $155,118.64 for Hearne’s medical expenses, along with payments made to Anthony Sign Company in order to reimburse Hearne for his lost wages in the amount of $3,842.64. The evidence also shows that a portion of that sum included a $250.00 deductible paid by McMillan and additional payments made to Medical Pricing Strategies, LLC (MPS), in the amount of $89,596.76. Reiter explained that pursuant to a contract between MPS and Caprock, MPS would negotiate with Hearne’s medical providers in order to reduce the amount the medical provider would accept in satisfaction for the full amount owed. In exchange for its services, MPS charged a fee to Caprock in the form of a percentage of the amount of the savings it had obtained. Based on the total amount of payments made by the Plan, McMillan contends, in his third point of error, that he was entitled to a $155,118.64 offset in past damages, which would include the payments made to MPS in the amount of $89,596.76. We disagree and find that McMillan is not entitled to an offset for the fees paid to MPS by the Plan.

Under Section 4.1 of the Plan, entitled “Eligibility for Benefits,” it states, “A Covered Employee shall only be eligible for payment of benefits as described below, if the Covered Employee sustains an injury.” (Emphasis added). The Plan specifically includes medical expense benefits, weekly accident disability benefits, death benefits, and dismemberment benefits. The Plan does not, however, contain a provision stating that the Plan would pay the costs of a third party’s services for negotiating a reduction in an employee’s medical costs. Thus, the section of the Plan relating to any potential offset, which states, “All payments under this Plan shall be offset against any judgment,” is inapplicable to services such as those provided by MPS.¹⁶ (Emphasis added).

*524 In his third cross-point of error, Hearne contends that in the event we find an offset of damages is appropriate, it should be in the amount of $65,521.88. We agree. The uncontroverted evidence showed that the Plan paid $65,271.88 of Hearne’s medical expenses and past wages and that McMillan paid a $250.00 deductible. As a result of those payments, McMillan was entitled to a $65,521.88 offset in the jury’s past damages award of $162,818.38, resulting in a judgment in favor of Hearne for past damages in the amount of $97,296.50.

For these reasons, we overrule McMillan’s third point of error and sustain Hearne’s third cross-point of error.

IV. Conclusion

Accordingly, we modify the trial court’s judgment to reflect an award of past damages in the amount of $97,296.50. As modified, we affirm the judgment of the trial court.

Footnotes
1	There was evidence in the record showing that when the ladder came from the manufacturer, it had feet made of rubber. According to McMillan, at the time of Hearne’s fall, the feet were attached with “something that’s removable, like a bolt and a nut or a screw and a nut ... something like that.” McMillan concedes that the ladder had been modified.
2	Although he was not certain, McMillan approximated that the ladder weighed forty-five to fifty pounds; however, Hearne presented evidence that it weighed about seventy-five pounds.
3	McMillan emphasizes the Robinson, the court stated that there were many factors a trial court could consider in making the threshold determination of the admissibility of an expert’s opinion, including: (1) the extent to which the theory has been or can be tested; (2) the extent to which the technique relies upon the subjective interpretation of the expert[;] (3) whether the theory has been subjected to peer review and/or publication; (4) the technique’s potential rate of error; (5) whether the underlying theory or technique has been generally accepted as valid by the relevant scientific community; and (6) the non-judicial uses which have been made of the theory or technique. Id. at 557 (citations omitted). McMillan maintains that English did not conduct or cite any testing or authority to support his theories that the condition of the ladder caused the ladder to slip and Hearne to fall. McMillan contends that at the time English made his report, he had no information about the incident other than what he had been told by Hearne’s counsel. According to McMillan, English never visited the accident site or examined the ladder at issue; instead, he relied only on photographs. In response, Hearne contends that the attack on the admission of English’s testimony is misplaced. According to Hearne, McMillan misstated the relevant legal standard by erroneously focusing on the Id. at 722. Thus, contrary to McMillan’s contention, and as we explain below, expert testimony is not always held to a scientific standard, and such testimony is not always necessary to prove causation in a negligence case.
4	Expert testimony is necessary when the alleged negligence is of such a nature as not to be within the experience of the layperson. Turbines, Inc. v. Dardis, 1 S.W.3d 726, 738 (Tex. App.—Amarillo 1999, pet. denied) (concluding negligence of aircraft turbine engine mechanic requires expert testimony because “performance of mechanical work on turbine aircraft engines is not within the experience of a layman”).
5	See supra note 2 (discussing ladder modifications). According to English, these modifications rendered the ladder unsafe for the use for which it was intended.
6	As noted, as a nonsubscriber, McMillan is not entitled to assert the defense of contributory negligence. Accordingly, we consider this argument only to the extent McMillan argues that Hearne’s inability to foresee the danger of using the ladder established that the danger was likewise unforeseeable to McMillan.
7	As we discuss below, the Plan provided benefits for covered employees who sustained certain accidental on-the-job injuries.
8	The Texas Supreme Court emphasized the importance of this principle by stating it affirmatively as well: “To encourage employers to obtain workers’ compensation insurance, Kroger, 23 S.W.3d at 349.
9	TEX. CIV. PRAC. & REM. CODE ANN. § 41.0105.
10	We further note that the Legislative intent behind the statute at issue in Haygood is inapposite to the present case.
11	In this case, McMillan’s employee benefit plan was funded by McMillan. We do not address whether an employer who does not fund the employee benefit plan has a right of offset in a nonsubscriber case.
12	In Tex. & Pac. Ry. Co. v. Levi & Bro., 59 Tex. 674 (1883)). It would be unfair to a plaintiff, after purchasing insurance for himself, to see the benefits of his own coverage reduce a defendant’s accountability for his negligent actions. Notably, those are not the circumstances in this case.
13	In addition to twenty-four other exclusions, the Plan specifically excludes “[a]ny losses or expenses incurred from sickness, disease, bodily or mental infirmity, bacterial or viral infection or medical or surgical treatment thereof.”
14	We agree with our sister courts in Teel that the collateral source rule does not apply in this instance. Typically, the collateral source rule applies when the defendant tortfeasor attempts to offset his liability to the plaintiff on the basis that the plaintiff already received compensation from his own insurance carrier. Because the plaintiff purchased the health insurance for his own benefit rather than for the tortfeasor’s benefit, the plaintiff’s health insurance is considered a collateral source. By contrast, in a nonsubscriber case, the defendant tortfeasor pays the plaintiff’s medical bills (by setting up an employee benefit plan), not the plaintiff’s insurer. Therefore, payment of benefits by or on behalf of a nonsubscribing employer are not a collateral source, but instead, are essentially advance payments by the nonsubscribing employer on the amount of common law damages it will ultimately owe to the employee. Thus, payments from an employee benefit plan in nonsubscriber cases are not subject to the collateral source rule. Of course, it is true—as Hearne points out—that workers’ compensation benefits are a collateral source. Hearne further argues that there is no reasonable distinction between workers’ compensation benefits and benefits paid by an employee benefit plan in nonsubscriber cases. Yet, in workers’ compensation cases, employees only receive—and employers only pay—statutory benefits; thus, an employee in a workers’ compensation case cannot recover common law damages in addition to the statutory benefits. See Kroger, 23 S.W.3d at 349–50 (“In exchange [for employees recovering without proving fault] employees receive[ ] a lower, but more certain, recovery than would have been possible under the common law.”). Accordingly, in a workers’ compensation case, there is nothing to offset the workers’ compensation benefits against, and there is no risk that an injured employee will obtain a double recovery. By contrast, in nonsubscriber cases, employees can recover common law damages which could substantially exceed the amount of benefits paid by an employee benefit plan. If an injured employee could recover medical expense benefits from his employee benefit plan and then recover common law damages for his medical expenses from his employer, the employee would receive a double recovery. Thus, the reasons for applying the collateral source rule to workers’ compensation benefits are not applicable in nonsubscriber cases. In addition, if nonsubscribing employers were unable to offset benefits paid under an employee benefit plan against the common law damages they are required to pay to an injured employee, there would be no incentive for nonsubscribing employers to create employee benefit plans. Of course, it could be argued that such is the price an employer pays for being a nonsubscriber. But that scenario potentially harms employees more than employers. Namely, if a nonsubscribing employer does not have sufficient non-exempt assets to pay an injured employee’s common law damages, then an employee who obtains a judgment against that insolvent nonsubscribing employer would recover nothing. At least with an employee benefit plan, the employee’s recovery of a portion of his damages is guaranteed without sacrificing the right to recover all of his common law damages. If an employer has no right to offset, then an employee with an employee benefit plan would essentially be paying the damages to the employee twice. This would substantially discourage a nonsubscribing employer from adopting an employee benefit plan. Consequently, were we to interpret Section 406.033 as prohibiting nonsubscribing employers from offsetting benefits paid under an employee benefit plan, we would be giving an interpretation contrary to the interests of the injured employee.
15	Caprock Claims is the third-party administration company that issued the policy on behalf of Life Insurance Company of North America.
16	Moreover, the payments to MPS were not made for Hearne’s benefit, but for McMillan’s. As a nonsubscriber, McMillan was liable to Hearne for 100% of Hearne’s work-related medical expenses regardless of amount. Therefore, payments made to MPS to negotiate a reduction in Hearne’s medical expenses only benefitted McMillan. Thus, the amounts paid to MPS were not benefits paid to Hearne. Furthermore, in a nonsubscriber case, an employee is entitled to recover common law damages, and the amount of the employee’s economic damages (including reasonable and necessary medical expenses) is commonly a factor in a jury’s evaluation of the employee’s noneconomic damages (pain and suffering, disfigurement, etc.). See Id.

Court of Appeals of Texas, Texarkana.

Melanie STEELE, Appellant

v.

MURPHY & BEANE, INC., and Viacom, Inc., Appellees

No. 06-19-00008-CV

|

Submitted: July 2, 2019

|

Decided: July 10, 2019

On Appeal from the 250th District Court, Travis County, Texas, Trial Court No. D-1-GN-18-005640. Dustin M. Howell, Judge

Attorneys & Firms

Brian Buster, Christopher Bean & Associates, 1301 S IH-35 N, Ste. 105, Austin, TX 78741, for Appellant.

Christopher C. White, Lewis, Brisbois, Bisgaard & Smith, LLP, 2100 Ross Ave., Ste. 2000, Dallas, TX 75201, for Appellees.

Before Stevens, JJ.

MEMORANDUM OPINION

Memorandum Opinion by Justice Stevens

*1 Viacom, Inc., hired Melanie Steele as an independent makeup artist to work on an Austin, Texas, set for a television series produced by Viacom in 2006 called Meet the Bulldogs.¹ When the Viacom production team “cut the lights for filming purposes,” Steele fell down two flights of stairs and suffered severe injuries, including broken and cracked teeth, lacerations to the face and body, broken bones, a torn meniscus in each knee, ultimately leading to double knee replacement surgery.

After the accident, Steele received correspondence from Murphy & Beane, Inc., a third-party administrator from California, informing her of treatment plans and benefits. Their handling of Steele’s claim, including a dispute over the need for total knee replacement surgery, led to a lawsuit filed by Steele against both Murphy & Beane and Viacom for fraud, fraudulent inducement, gross negligence, and violations of the Texas Deceptive Trade Practices Act and Texas Insurance Code. Murphy & Beane and Viacom filed a plea to the jurisdiction which argued that the Texas Department of Insurance, Division of Workers’ Compensation (Division), had exclusive jurisdiction over Steele’s claims and that Steele failed to exhaust administrative remedies.

The trial court granted the plea to the jurisdiction and dismissed Steele’s claims, without prejudice, to allow her to exhaust administrative remedies. Steele appeals. Because we agree with the trial court’s conclusion that Steele did not exhaust administrative remedies with the Division, we affirm the trial court’s judgment.

I. Factual and Procedural Background

After the accident, Steele said a Viacom employee took her to the hospital so she could receive medical care under Viacom’s Self Insurance Group as a result of the injury she suffered while working in Texas in the course and scope of her employment with Viacom. Steele countersigned a Texas Workers Compensation Work Status Report.

According to Steele’s petition, Murphy & Beane’s agent informed her that she had a “complicated case because the injury happened in Texas but the company handling the claim was from California.” Steele asserted that the agent never told her that Murphy & Beane was seeking to transfer the claim from Texas to California, but that they did so by filing an Employer’s Report of Occupational Injury or Illness in California with the Department of Industrial Relations two months after her injury. Steele also complained that Murphy & Beane failed to inform her that the case should be handled under the Texas Workers’ Compensation System, failed to file the claim in Texas, and

misrepresented to [Steele] that (a) [Steele’s] accident occurred in California, that (b) [Steele] was an employee located primarily in California, that the claim was a California claim, and not a Texas claim, that (c) she could not seek treatment from doctors of her choosing, that (d) she would have to travel to California to receive a [panel qualified medical examination (QME) ], and that (e) Murphy & Beane could close her case for non-compliance.

*2 Steele claimed that when she travelled to California for the QME, following a threat to terminate coverage by Murphy & Beane, she was informed that no doctor was available to see her. Because she returned to Texas without receiving a QME, Steele complained that it was “difficult to receive medically necessary treatments without either having to undertake unnecessarily difficult and repeated negotiations with Murphy & Beane, or just having the requested treatments flat out denied.”

Steele also asserted that, acting on behalf of Viacom, Murphy & Beane continuously injured her by misrepresenting workers’ compensation coverage available to her, by applying the improper medical-treatment guidelines of California rather than Texas, not timely filing the injury notice in Texas, misrepresenting that the injury occurred in California, not properly registering the self-insured group or third-party administrator in Texas, claiming that Steele was a regular employee domiciled in California, not timely filing a notice of injury claim in California, actively obstructing Steele’s ability to receive medically necessary treatment in her home state, and misrepresenting to Steele that her coverage could be canceled by Murphy & Beane for not complying with requests to cease seeking treatment or for refusing to fly to California to receive a QME.

As a result of these actions, Steele sued in Travis County in 2016, but the Austin Court of Appeals issued a writ of mandamus compelling the trial court to dismiss Steele’s claims for lack of subject-matter jurisdiction because (1) the Division had exclusive jurisdiction over Steele’s claims and (2) she had not exhausted administrative remedies. In re Murphy & Beane, Inc., No. 03-16-00690-CV, 2017 WL 3897453, at *6 (Tex. App.—Austin Aug. 29, 2017, orig. proceeding).

After the dismissal, the Division conducted a benefits review conference that led to an agreement between Steele and the carrier that Steele’s recovery was barred by the Texas Workers’ Compensation Act (TWCA). Steele contended that this agreement constituted an exhaustion of her administrative remedies. As a result, in 2018, Steele filed another petition against Murphy & Beane and Viacom in Travis County district court raising, in large part, the same claims as before.

Murphy & Beane and Viacom filed a plea to the jurisdiction in response to the new lawsuit and argued that Steele again failed to exhaust administrative remedies by neglecting to raise the allegations in her petition at the benefits review conference. The trial court agreed and again dismissed Steele’s claims “until such time that [she] exhausts all remedies available with the [Division].”

II. Standard of Review

Whether a trial court has subject-matter jurisdiction is a matter of law that we review de novo. See In re Entergy Corp., 142 S.W.3d 316, 321–22 (Tex. 2004) (orig. proceeding)).

“The [Texas] Workers’ Compensation Act ‘provides the exclusive procedures and remedies for claims alleging that a workers’ compensation carrier has improperly investigated, handled, or settled a workers’ claim for benefits.’ ” In re Crawford & Co., 458 S.W.3d 920, 923–27 (Tex. 2015) (per curiam)). Instead, we address whether Steele has properly exhausted administrative remedies.

*3 In performing this review, an appellate court does not look to the merits of the case, but considers only the pleadings and evidence relevant to the jurisdictional inquiry. See McMillan v. Aycock, No. 03-18-00278-CV, 2019 WL 1461427, at *2 (Tex. App.—Austin Apr. 3, 2019, no pet.).

III. Steele Did Not Exhaust Administrative Remedies

“There are two general types of dispute resolution under the Texas Workers’ Compensation Act.” § 410.202 (Supp.)). “A claimant is not required to continue through every step; the provisions of the Act contemplate that disputes may be resolved at any level.” Id.

The second type of dispute resolution “involves disputes relating to medical necessity or preauthorization for particular treatments, which follows the procedures instituted under Chapter 413.” Cunningham, 291 S.W.3d at 477).

The TWCA also addresses and prohibits a carrier or its representative from making misrepresentations to an employee about the TWCA’s provisions and the reason for not paying benefits. PHI Air Med., LLC v. Tex. Mut. Ins. Co., 549 S.W.3d 804, 811 (Tex. App.—Austin 2018, pet. abated)).

*4 Steele alleged that the claims in her petition were resolved at the benefits review conference, “a nonadversarial, informal dispute resolution proceeding.” 410.030(b).

The Agreement only addressed issues of compensability. It referenced no dispute about the extent of injury, preauthorization, medical necessity, or administrative violations. The Agreement stated, “This agreement resolves only the issues in dispute as described below and is not a final resolution of all issues in this claim.”³ The effect of the agreed finding under Section 409.003 is discussed in Section 409.004, which states:

Failure to file a claim for compensation with the division as required under Section 409.003 relieves the employer and the employer’s insurance carrier of liability under this subtitle unless:

(1) good cause exists for failure to file a claim in a timely manner; or

(2) the employer or the employer’s insurance carrier does not contest the claim.

TEX. LABOR CODE ANN. § 409.004.⁴ The Agreement did not address good cause or any decision by Viacom or their carrier on refraining from a contest.

“An issue that was not raised ... or ... resolved at a benefit review conference may not be considered unless: (1) the parties consent; or (2) if the issue was not raised, the commissioner determines that good cause existed for not raising the issue at the conference.” Cunningham, 291 S.W.3d at 477).

Steele’s petition essentially claims that she was denied full benefits as a result of Murphy & Beane and Viacom’s misrepresentations about and mishandling of the claims process. Yet, the Agreement’s resolution on compensability does not resolve her other disputes which were not raised with the Division. This is because, even if she cannot recover TWCA benefits, “[i]t is the Division’s duty to ‘(1) regulate and administer the business of workers’ compensation in this state; and (2) ensure that [the Act] and other laws regarding workers’ compensation are executed.’ ” Id. at 923–24. Nothing in the appellate record shows that Steele has either exhausted administrative remedies under Chapter 413 or provided the Division with notice of administrative violations.

*5 The Austin Court of Appeals has already determined that Steele’s complaints needed to be raised with the Division. A review of the Agreement shows that they were not. The evidence presented by Murphy & Beane and Viacom was uncontested. Because there was no genuine issue of material fact about whether Steele exhausted administrative remedies, we find the trial court’s grant of the plea to the jurisdiction was proper.

IV. Conclusion

We affirm the trial court’s judgment.

Footnotes
1	Originally appealed to the Third Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. R. APP. P. 41.3.
2	Section 409.003 of the Texas Labor Code states: An employee or a person acting on the employee’s behalf shall file with the division a claim for compensation for an injury not later than one year after the date on which: (1) the injury occurred; or (2) if the injury is an occupational disease, the employee knew or should have known that the disease was related to the employee’s employment. TEX. LAB. CODE ANN. 409.003.
3	A copy of Steele’s actual claim or claims with the Division is not included in the appellate record.
4	While “[r]ecovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage ... against the employer ... for ... a work-related injury sustained by the employee,” a “determination under (d).

Court of Appeals of Texas, Texarkana.

Suenan GOBER, Appellant

v.

BULKLEY PROPERTIES, LLC, Appellee

No. 06-18-00039-CV

|

Date Submitted: December 10, 2018

|

Date Decided: December 28, 2018

*422 On Appeal from the 62nd District Court, Hopkins County, Texas, Trial Court No. CV43552, Hon. Will Biard, Judge.

Attorneys & Firms

Lawrence L. Beason, Attorney at Law, Mineola, TX, for Appellant.

Michael G. Lee, Erwin A. Cain, PC, Sulphur Springs, TX, for Appellee.

Before Burgess, JJ.

OPINION

Opinion by Justice Moseley

Suenan Gober, who had instituted a declaratory judgment action against Bulkley Properties, LLC, suffered the grant of a summary judgment against her and in favor of Bulkley. By her appeal, Suenan seeks to reverse that summary judgment. Because we find that the trial court erred in entering summary judgment without first having allowed Suenan the opportunity to amend her pleadings, we reverse the trial court’s judgment.

I. Background

The property which has generated the controversy in this case was owned by Imogene Gober and occupied by her, Suenan Gober (her daughter), and Day Gober (her granddaughter). Imogene died, and that residence in Sulphur Springs was sold to Bulkley during the probate of her estate. In her petition, Suenan alleged that after the sale, she negotiated with Bud McCleheny, who was the agent for Bulkley. According to Suenan’s original petition, following the sale, Suenan entered into negotiations with Bulkley through McCleheny. The petition alleges that Suenan would be able to lease the property and purchase it from Bulkley at a later date. According to Suenan, the parties agreed that she would deed one-half of her interest in another property (known as 0-Gilmer) as collateral to ensure her payment of lease payments for two years, with an agreement that she could acquire the residence and reacquire the 0-Gilmer property by paying Bulkley $100,000.00 by December 2016. When Suenan offered to pay Bulkley the agreed-on funds in November or December 2016, her payment was refused by Bulkley. Suenan alleges that Bulkley then made another offer. Under this proposal, Suenan was to pay *423 $100,000.00 as partial payment and Bulkley was to finance an unpaid balance. However, even though Bulkley had originated the offer through McCleheny, Bulkley refused to follow through on those terms.

In her petition, Suenan acknowledged that the agreement was not in writing, but alleged that there was a special relationship and trust that existed between her and Bulkley. She also alleged that Bulkley was unjustly enriched by refusing her payment and denying her the two properties and that she was entitled to equitable restitution and the equitable remedy of quantum meruit.¹ She sought a declaratory judgment that she was entitled to pay Bulkley the consideration and to receive warranty deeds from Bulkley conveying to her both the residence and the 0-Gilmer property.

Bulkley filed special exceptions wherein it asserted that Suenan’s petition showed on its face that it was barred by the statute of frauds,² since she admitted that the agreement was not in writing, and an answer asserting a general denial and the statute of frauds as an affirmative defense. On the same day, Bulkley filed a traditional motion for summary judgment. As grounds for its motion, Bulkley asserted that the allegations in Suenan’s petition showed that her claim regarding the agreement to convey real estate was barred by the statute of frauds and that she did not state a viable cause of action for recovery under quantum meruit.

In her response to the motion for summary judgment, Suenan challenged Bulkley’s use of its motion for summary judgment to challenge deficiencies in her pleadings that were curable by amendment and requested leave of court to amend her petition. She also asserted that Suenan’s affidavit (an unsigned copy of which was apparently attached to the response) established issues of material fact supporting her allegations that enforcement of the statute of frauds was waived.³ On the same date, Suenan filed her first amended petition in which she again requested a declaratory judgment and added claims for damages based on fraud, breach of contract, and promissory estoppel.

On the day of the summary judgment hearing,⁴ Bulkley filed objections to Suenan’s unsigned affidavit and the exhibits attached to it as summary judgment evidence. At the hearing, Suenan showed the trial court a copy of her signed affidavit⁵ and contended that it had been filed with her response. After the trial court pointed out that the filed affidavit was not signed, it sustained Bulkley’s objections and struck the affidavit. The trial court then entered its summary judgment that Suenan take nothing on her claims for declaratory relief and on her claims for unjust *424 enrichment, quantum meruit, and equitable restitution.⁶ It also severed those claims from her claims for damages based on fraud, breach of contract, and promissory estoppel.⁷ Suenan has appealed.

On appeal, Suenan asserts that the trial court (1) abused its discretion by refusing to allow her to file her signed affidavit and (2) erred in entering summary judgment based on the statute of frauds. Because we agree that the trial court erred in entering summary judgment, we will reverse the trial court’s judgment.

II. Standard of Review

The grant of a trial court’s summary judgment is subject to de novo review by appellate courts. Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972) ).

III. Analysis

In support of her second issue, Suenan contends that this appeal is controlled by the legal principles set forth in Friesenhahn. We agree.

Bulkley’s motion for summary judgment was not supported by any evidence and relied solely on the allegations in Suenan’s pleadings that there was no written agreement in support of its contention that any cause of action asserted by Suenan was barred by the statute of frauds. The statute *425 of frauds provides that neither a lease of real estate for a term longer than one year nor a contract for the sale of real estate⁹ may be enforced unless it is in writing and signed by the defendant or his agent. (b)(4).

Absent some exception to the enforcement of the statute, the enforcement of the oral agreement alleged by Suenan would be barred. However, “Texas has long recognized that some situations exist wherein ‘the nonenforcement of the contract—or the enforcement of the statute—would, itself, plainly amount to a fraud.’ ” Hammonds v. Calhoun Distrib. Co., 584 S.W.2d 473, 475 (Tex. Civ. App.—Texarkana 1979, writ ref’d n.r.e.).

We must liberally construe a petition to contain any claims that may be reasonably inferred from the language used in the petition, even if an element of a claim is not specifically alleged. Id. Consequently, we find that the trial court erred in entering summary judgment in favor of Bulkley. We sustain Suenan’s second issue.¹⁰

For the reasons stated, we reverse the trial court’s judgment, and remand this cause for further proceedings.

Footnotes
1	Quantum meruit is an equitable remedy which does not arise out of a contract, but is independent of it. Generally, a party may recover under quantum meruit only when there is no express contract covering the services or materials furnished. This remedy is based upon the promise implied by law to pay for beneficial services rendered and knowingly accepted; it will be had when non-payment for the services rendered could result in an unjust enrichment to the party benefited by the work. Vortt Expl. Co. v. Chevron U.S.A., Inc. 787 S.W.2d 942 (Tex. 1990).
2	See (b)(4) (West 2015).
3	In the appellate record, no affidavit is attached to Suenan’s response. However, both the trial court and Bulkley acknowledge that although an affidavit was filed with the response, it was unsigned.
4	The trial court never ruled on Bulkley’s special exceptions.
5	The affidavit shown to the trial court was not made a part of the appellate record.
6	The trial court interpreted Suenan’s claims for unjust enrichment, equitable restitution, and quantum meruit as bases for her declaratory relief, and not as separate claims or remedies.
7	In its brief, Bulkley contends that Suenan consented to the entry of the summary judgment. We do not think a fair reading of the transcript of the hearing supports Bulkley’s contention. Further, Bulkley does not cite any appropriate legal authority in support of its contention. See 38.2(a)(1).
8	In Id. at 934.
9	As we construe her pleadings, Suenan has alleged an oral lease of real estate for two years, with an option to purchase.
10	Since this issue is dispositive of this appeal, we need not address Suenan’s first issue.