Court of Appeals of Texas, Amarillo.

LLANO LOGISTICS, INC., APPELLANT

v.

ULYSSES CARMONA, APPELLEE

No. 07-21-00254-CV

|

April 14, 2022

On Appeal from the 99th District Court

Lubbock County, Texas

Trial Court No. 2020-539,270, Honorable J. Phillip Hays, Presiding

Before QUINN, C.J., and PARKER and DOSS, JJ.

MEMORANDUM OPINION

Judy C. Parker Justice

*1 Appellant, Llano Logistics, Inc., filed an interlocutory appeal of the trial court’s denial of Llano’s motion to compel arbitration in a suit brought by appellee, Ulysses Carmona, for negligence and premises liability. We reverse and remand.

Factual and Procedural Background

Carmona worked for Llano as a truck driver delivering groceries to United Supermarkets. While walking through the delivery area after making a delivery, Carmona was struck by another employee who was driving a “spotter truck.” The accident caused Carmona significant physical injuries.

Carmona filed suit against Llano on March 24, 2020. Llano is a non-subscriber to Texas Workers’ Compensation insurance but does maintain a Texas Workplace Benefit Plan that includes a Dispute Resolution Program and Agreement (DRPA) that requires certain work-related disputes to be resolved by arbitration. Carmona signed the Plan as a condition of his employment with Llano. In its answer, Llano did not seek to compel arbitration or otherwise refer to the DRPA. Rather, its answer requested a jury instruction and asserted several affirmative defenses. During the pendency of this suit, Llano has paid Carmona for his lost wages and medical care as provided for by the Plan.

In late April 2020, the parties entered into an agreed scheduling order that was accepted by the trial court and that set a schedule for discovery and set trial for July 12, 2021. For the next year, the parties engaged in discovery in accordance with this scheduling order. On April 12, 2021, Llano filed a motion to compel arbitration. Carmona opposed the motion. After holding a hearing on the motion, the trial court took the matter under advisement pending a scheduled mediation. Subsequently, the trial court entered a new scheduling order that set trial for November 15, 2021. Llano objected to the new scheduling order and requested the trial court to rule on its motion to compel arbitration. On October 7, the trial court signed an order denying Llano’s motion. As a result, Llano filed the instant interlocutory appeal.¹

Llano presents one issue by its appeal. Its sole issue contends that the trial court erred in denying Llano’s motion to compel arbitration. Within this argument, Llano contends that the parties entered into an enforceable arbitration agreement, Carmona’s claims fall within the scope of claims covered by the agreement, and Carmona did not satisfy his burden to prove a valid defense to enforcement. Carmona responds contending that Llano failed to meet its burden to prove the existence of an enforceable arbitration agreement and, if the arbitration agreement is enforceable, Carmona established that Llano waived its right of arbitration.

Standard of Review

*2 A trial court’s order denying a motion to compel arbitration is reviewed for abuse of discretion. Houston NFL Holding L.P. v. Ryans, 581 S.W.3d 900, 907 (Tex. App.—Houston [1st Dist.] 2019, pet. denied). Under this standard, we defer to the trial court’s factual determinations if they are supported by evidence, but we review its legal determinations de novo. Id.

In determining whether a party’s claims are subject to arbitration, the court must decide whether the parties entered into a valid arbitration agreement and, if so, whether plaintiff’s claims fall within the scope of the agreement. Dallas Cardiology Assocs., P.A. v. Mallick, 978 S.W.2d 209, 212 (Tex. App.—Texarkana 1998, pet. denied). If the answer to both prongs is affirmative, the trial court has no discretion but to compel arbitration. Id. The party seeking arbitration has the initial burden to establish its right to the remedy under the first prong; in other words, to establish that a valid arbitration agreement exists. Id. Once the existence of an arbitration agreement has been established, a presumption attaches favoring arbitration. Id. At this point, the burden shifts to the opposing party to establish some ground in avoidance of the arbitration agreement, such as fraud, waiver, unconscionability, or that the dispute falls outside the scope of the agreement. Id. The trial court must resolve any doubts regarding the scope of arbitration agreements in favor of arbitration. Id.

Existence of a Valid Arbitration Agreement

Carmona does not dispute that an arbitration agreement was included in the DRPA; he was given notice of the provision; and, on its face, the arbitration provision covers Carmona’s claims. Carmona does challenge the validity of the arbitration provision on the basis that the consideration provided by Llano was illusory.

In the context of stand-alone arbitration agreements, binding mutual promises are the consideration necessary to create a legally binding contract. In re AdvancePCS Health L.P., 172 S.W.3d 603, 607 (Tex. 2005) (per curiam). “Mutual promises to submit employment disputes to arbitration constitute sufficient consideration to support an arbitration agreement; however, if the employer can avoid its promise to arbitrate, the agreement is illusory.” D.R. Horton, Inc. v. Brooks, 207 S.W.3d 862, 868 (Tex. App.—Houston [14th Dist.] 2006, no pet.). “When illusory promises are all that support a purported bilateral contract, there is no mutuality of obligation, and therefore, no contract.” In re 24R, Inc., 324 S.W.3d 564, 567 (Tex. 2010) (per curiam). A promise that does not bind the promisor is illusory, such as when the promisor retains the option to discontinue performance. Id. “An arbitration clause is not illusory unless one party can avoid its promise to arbitrate by amending the provision or terminating it altogether.” Id. Even when a party may amend or terminate an arbitration agreement, the agreement is not rendered illusory if that party must provide notice to the other party before the change becomes effective and any change operates prospectively only. See In re Halliburton Co., 80 S.W.3d 566, 569-70 (Tex. 2002).

The law presumes that there is sufficient consideration to support a written contract signed by the parties. Tripp Village Joint Venture v. MBank Lincoln Centre, N.A., 774 S.W.2d 746, 749 (Tex. App.—Dallas 1989, writ denied). When this presumption arises, the party alleging the lack of consideration has the burden to rebut that presumption. Blockbuster, Inc. v. C-Span Entm’t, Inc., 276 S.W.3d 482, 488 (Tex. App.—Dallas 2008, pet. dism’d by agr.). A party that does not challenge the existence of a valid arbitration agreement in the trial court cannot assert that argument for the first time on appeal. Ranchers & Farmers Mut. Ins. Co. v. Stahlecker, No. 09-10-00286-CV, 2010 Tex. App. LEXIS 8797, at *5-6 (Tex. App.—Beaumont Nov. 4, 2010, no pet.) (mem. op.); see 950 Corbindale, L.P. v. Knotts Capital Holdings Ltd. P’ship, 316 S.W.3d 191, 196 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (challenge to arbitration agreement’s enforcement must be raised in trial court or is waived); see also ABP Holdings, Inc. v. Rainbow Int’l LLC, No. 10-21-00122-CV, 2021 Tex. App. LEXIS 9918, at *11 (Tex. App.—Waco Dec. 15, 2021, no pet.) (mem. op.) (same). Even when no findings of fact and conclusions of law are filed by the trial court, we will imply findings necessary to support the judgment only when the necessary findings were raised by the pleadings and supported by the evidence. Stahlecker, 2010 Tex. App. LEXIS 8797, at *5-6 (citing Volume Millwork, Inc. v. W. Houston Airport Corp., 218 S.W.3d 722, 729 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (op. on reh’g)).

*3 Here, the DRPA that was signed by both parties was admitted into evidence. As such, the presumption of valid consideration arose. Tripp Village Joint Venture, 774 S.W.2d at 749. Carmona did not rebut this presumption by arguing to the trial court that the consideration for the arbitration agreement contained in the DRPA was illusory. As such, this argument was not preserved for appellate review. Even though the trial court did not enter findings of fact and conclusions of law, we cannot imply a finding that the arbitration agreement in this case was illusory. Stahlecker, 2010 Tex. App. LEXIS 8797, at *6.

Carmona does not dispute that the arbitration agreement is facially valid and covers Carmona’s claims. His contention that the agreement was not supported by consideration because Llano’s promise was illusory was not preserved for our review. Consequently, we conclude that Llano met its burden to establish that a valid arbitration agreement exists. See Mallick, 978 S.W.2d at 212.

Grounds for Revocation of Arbitration Agreement

Having concluded that a valid arbitration agreement exists and applies to Carmona’s claims, the burden now shifts to Carmona to establish some ground for the revocation of the arbitration agreement. Id. Carmona contends that Llano expressly and impliedly waived its right to invoke the arbitration agreement. We will consider each ground in turn.

Law of Waiver

Like other contractual obligations, a contractual right to arbitrate may be waived. Perry Homes v. Cull, 258 S.W.3d 580, 593 (Tex. 2008); CropMark Direct LLC v. Urbanczyk, 377 S.W.3d 761, 763 (Tex. App.—Amarillo 2012, pet. denied). Such waiver can occur expressly, when a party expressly agrees to forego its right to arbitrate, or impliedly, when a party’s conduct reveals its intent to forego its right to arbitrate. CropMark Direct, 377 S.W.3d at 763. “Because the law favors and encourages arbitration, in close cases, the presumption against waiver governs.” Branch Law Firm L.L.P. v. Osborn, 532 S.W.3d 1, 22 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). Whether Carmona established his defense to enforcement of the arbitration agreement based on Llano’s express or implied waiver is a legal question subject to de novo review. Legoland Discovery Ctr. (Dallas), LLC v. Superior Builders, LLC, 531 S.W.3d 218, 221 (Tex. App.—Fort Worth 2017, no pet.).

Express Waiver

Carmona contends that Llano expressly waived its right to arbitration because it made multiple Rule 11² agreements relating to the scheduling of pretrial and trial events governing this case, and each of these Rule 11 agreements is enforceable as a binding contract. Essentially, Carmona argues that by agreeing to an explicit trial date, Llano modified the arbitration agreement and is contractually obligated to try the case.

An express waiver in the arbitration context “arises when a party affirmatively indicates that it wishes to resolve the case in the judicial forum rather than in arbitration.” Branch Law Firm L.L.P., 532 S.W.3d at 22; see Sipriano v. Reg’l Fin. Corp. of Tex., No. 05-15-00397-CV, 2016 Tex. App. LEXIS 5149, at *9 (Tex. App.—Dallas May 16, 2016, no pet.) (mem. op.) (an express waiver of a contractual right to arbitration is made “through a clear repudiation of the right”).

There is no statement in any of the Rule 11 agreements explicitly indicating that Llano was repudiating or waiving its right to arbitration. Carmona does not identify where, in the record, Llano affirmatively indicated that it wished to resolve the case in the judicial forum rather than in arbitration. See Branch Law Firm L.L.P., 532 S.W.3d at 22. Instead, Carmona argues that by entering into three separate Rule 11 agreements, including an agreed scheduling order, Llano expressly waived its right to arbitrate. However, the Texas Supreme Court has rejected Carmona’s contention that Llano’s agreement to a scheduling order constitutes an express waiver of its arbitration right. G.T. Leach Builders, LLC v. Sapphire V.P., L.P., 458 S.W.3d 502, 511 (Tex. 2015) (Rule 11 agreement setting trial date does not relinquish or repudiate right to arbitration);³ see also EZ Pawn Corp. v. Mancias, 934 S.W.2d 87, 90 (Tex. 1996) (orig. proceeding) (per curiam) (agreed order to reset trial date does not constitute waiver of right to seek arbitration); FW Servs., Inc. v. McDonald, No. 04-19-00331-CV, 2020 Tex. App. LEXIS 783, at *9-10 (Tex. App.—Fort Worth Jan. 29, 2020, no pet.) (mem. op.) (“the entry of a[n agreed] scheduling order does not constitute an affirmative waiver”); Legoland Discovery Ctr., 531 S.W.3d at 223 (simply agreeing to scheduling order does not waive right to arbitration). As such, we conclude that Llano did not expressly waive its right to arbitration. Thus, Carmona has not met his burden to prove that express waiver is a valid ground for revocation of the arbitration agreement. See Mallick, 978 S.W.2d at 212.

Implied Waiver

*4 Carmona further contends that Llano impliedly waived its right to arbitrate because its pretrial conduct revealed its intent to forego its arbitration right.

To prove an implied waiver, Carmona had the burden to prove that (1) Llano substantially invoked the judicial process, i.e., engaged in conduct inconsistent with a claimed right to compel arbitration, and (2) such conduct caused Carmona to suffer a detriment or prejudice. Legoland Discovery Ctr., 531 S.W.3d at 222 (citing G.T. Leach, 458 S.W.3d at 511-12). Because arbitration is strongly favored under the law, Carmona’s burden to prove Llano’s implied waiver is a high one. Id. This burden is so high that appellate courts seldom find implied waiver through litigation conduct. Id. (citing RSL Funding, LLC v. Pippins, 499 S.W.3d 423, 430-31 (Tex. 2016) (per curiam), Richmont Holdings, Inc. v. Superior Recharge Sys., LLC, 455 S.W.3d 573, 575 & n.1 (Tex. 2014) (per curiam), and Perry Homes, 258 S.W.3d at 590).

In assessing whether an implied waiver has occurred, we must review the totality of the circumstances and are guided by several factors, including:

whether the party asserting the right to arbitrate was plaintiff or defendant in the lawsuit, how long the party waited before seeking arbitration, the reasons for any delay in seeking to arbitrate, how much discovery and other pretrial activity the party seeking to arbitrate conducted before seeking arbitration, whether the party seeking to arbitrate requested the court to dispose of claims on the merits, whether the party seeking to arbitrate asserted affirmative claims for relief in court, the amount of time and expense the parties have expended in litigation, and whether the discovery conducted would be unavailable or useful in arbitration.

Id. (quoting RSL Funding, 499 S.W.3d at 430). No one factor is dispositive. Id. As above, in close cases, the presumption against waiver governs. Id.

In the present case, the totality of the circumstances does not support Llano’s implied waiver. Llano was the defendant in a suit brought by Carmona. See G.T. Leach, 458 S.W.3d at 512. Llano filed its motion to compel thirteen months after Carmona filed suit, but about seven months prior to the scheduled date of trial.⁴ However, delay alone is not sufficient to establish implied waiver. In re Serv. Corp. Int’l, 85 S.W.3d 171, 174 (Tex. 2002) (orig. proceeding) (per curiam). We are mindful that many legal proceedings in 2020 and 2021 were delayed and disrupted by the COVID-19 pandemic. The record reflects that Llano sent written discovery to Carmona and deposed Carmona and his girlfriend and, under the DRPA, this discovery would be available and useful during arbitration. Legoland Discovery Ctr., 531 S.W.3d at 222 (citing G.T. Leach, 458 S.W.3d at 514). Llano did not ask for pretrial, summary disposition of Carmona’s claims against it.⁵ Id. Llano did not assert counterclaims seeking affirmative relief.

*5 Carmona claims that he would be prejudiced by compelled arbitration. He argues that Llano waited until it became “aware of Carmona’s trial strategy, aware of more extensive damages for medical care, and aware that a trial might not be in Llano’s best interest.” However, other than a cursory citation to his amended designation of expert witnesses,⁶ Carmona does not identify the method used by Llano to discern Carmona’s trial strategy. Further, the record reflects that Llano had paid for Carmona’s medical expenses related to the injury since it occurred and, therefore, was aware of the extent of damages for Carmona’s medical care as well as the likely future costs of that care. Carmona also contends that he was prejudiced by conducting more discovery than would be allowed under the DRPA. However, the DRPA allows for additional discovery upon the agreement of the parties or the order of the arbitrator. Consequently, Carmona has failed to establish that he would be prevented from using any of the discovery he has already obtained and, because expert witnesses do not count against the deposition limits under the DRPA, Carmona has not shown how arbitration would prejudice his discovery efforts. Because Carmona has not shown how he would be prejudiced by enforcement of the arbitration agreement, we conclude that this factor indicates that Llano did not impliedly waive its arbitration rights.

Because we conclude that Carmona failed to meet his burden to prove that Llano substantially invoked the judicial process, causing him prejudice, see id., we cannot find that Llano impliedly waived its right to arbitration.

Conclusion

Having found that a valid arbitration agreement covers Carmona’s claims and Carmona has failed to prove an applicable ground for revocation of the agreement, we conclude that the trial court erred in denying Llano’s motion to compel arbitration. As such, we reverse the trial court’s order denying Llano’s motion to compel arbitration and remand the case to the trial court for further proceedings consistent with this opinion.

Footnotes
1	“In a matter subject to the Federal Arbitration Act ..., a person may take an appeal ... to the court of appeals from the [trial court’s] ... interlocutory order ... under the same circumstances that an appeal ... would be permitted” in federal court. TEX. CIV. PRAC. & REM. CODE ANN. § 51.016; see 9 U.S.C. § 16 (listing appealable and non-appealable orders regarding arbitration and permitting interlocutory appeal of an order denying application to compel arbitration).
2	See TEX. R. CIV. P. 11.
3	Carmona argues that G.T. Leach is distinguishable because the opinion does not indicate that the agreed scheduling order used mandatory language related to the trial date, and there is no indication that the arbitration agreement granted one party the unilateral right of modification and revocation. However, the lack of explicit identification of features that would make the cases identical does not provide a basis for distinction. It is certainly possible that these features were present in G.T. Leach but were deemed irrelevant to the Court’s analysis. We cannot conclude that the failure of the Court to address the presence or absence of particular features of the scheduling order and arbitration agreement provide a basis for distinction between the holding in G.T. Leach and the present case.
4	When Llano filed its motion to compel arbitration on April 12, 2021, the trial was scheduled for July 12, 2021. However, the trial court subsequently entered a scheduling order that set trial for November 15, 2021.
5	Carmona contends that Llano sought to have the trial court dispose of Carmona’s claims on the merits by asserting affirmative defenses and asking the trial court to find that Carmona take nothing by his claims. However, filing an answer alone is not sufficient to constitute waiver of arbitration rights. See In re Bruce Terminix Co., 988 S.W.2d 702, 704 (Tex. 1998) (per curiam) (filing an answer denying claim and propounding written discovery not sufficient to establish waiver of right to arbitrate).
6	We note that Carmona filed his designation of expert witnesses approximately one hour after Llano filed its motion to compel arbitration. The timing of these filings imply that Llano’s motion to compel arbitration was not influenced by Carmona’s designation of expert witnesses.

Court of Appeals of Texas, Amarillo.

LUBBOCK COUNTY, Appellant

v.

Oscar REYNA, Appellee

No. 07-19-00330-CV

|

January 5, 2021

On Appeal from the 72nd District Court, Lubbock County, Texas, Trial Court No. 2018-530.166, Honorable David L. Gleason, Presiding

Attorneys & Firms

John E. Gibson, for Appellee.

Michael J. Donovan, for Appellant.

Before PIRTLE and PARKER and DOSS, JJ.

MEMORANDUM OPINION

Judy C. Parker, Justice

*1 Appellant, Lubbock County, appeals from a jury verdict finding appellee, Oscar Reyna, entitled to lifetime income benefits under Texas Labor Code section 408.161. Lubbock County also challenges the trial court’s award of Reyna’s commuted attorney’s fees. We affirm the trial court’s judgment.

Factual and Procedural Background

Reyna was injured on May 14, 2013, while working as a maintenance supervisor at the Lubbock County Courthouse. The injury occurred when Reyna was attempting to repair an issue with a tractor when his head got caught in the hydraulics, causing a significant crushing injury to Reyna’s jaw and neck area. After undergoing extensive rehabilitation, Reyna returned to work for Lubbock County as a maintenance supervisor in September of 2013. Reyna retired from that position in late November of 2015.

Reyna was examined by a Texas Department of Insurance, Division of Workers’ Compensation (DWC) designated doctor in July of 2015 and assessed an eighty-one percent impairment rating. In May of 2017, Reyna was examined by a second designated doctor to assess the extent of Reyna’s compensable injury. This second designated doctor determined that Reyna’s compensable injury did not include a traumatic brain injury. However, in response to a letter of clarification from the DWC, the second designated doctor reversed his opinion and determined that Reyna did sustain a traumatic brain injury that caused “incurable insanity or ... imbecility.”

Reyna sought lifetime income benefits for his cognitive issues arising from his compensable injury. Lubbock County denied Reyna’s claim so a hearing was held before a DWC Administrative Law Judge (ALJ), who found that Reyna suffered a traumatic brain injury but that the injury did not meet the definition of imbecility that would entitle him to lifetime income benefits. The ALJ’s determination was affirmed by the DWC Appeals Panel. Both parties filed petitions for judicial review with Lubbock County appealing the inclusion of the traumatic brain injury in the compensable injury and Reyna appealing his non-entitlement to lifetime income benefits. These two causes were consolidated into the instant case.

Trial was held to a jury. At the close of the trial, the jury agreed with the DWC that Reyna had suffered a traumatic brain injury but overturned the DWC’s determination that the injury did not result in incurable insanity or imbecility. Following the trial, Reyna sought an order awarding him attorney’s fees pursuant to the Texas Labor Code.¹ At the hearing on attorney’s fees, the trial court granted Reyna’s motion challenging Lubbock County’s standing to challenge Reyna’s claim for attorney’s fees and approving Reyna’s request for $207,000 in attorney’s fees. The final judgment, however, orders that “a lump-sum payment of attorney fees” be paid by Lubbock County out of Reyna’s benefits “in accordance with a separate order of the Court incorporated herein by reference.” However, there is no separate order specifying the amount of attorney’s fees awarded by the trial court found in the appellate record.

*2 By its appeal, Lubbock County presents six issues. By its first issue, Lubbock County contends that the evidence that Reyna was incurably insane or an imbecile was not supported by factually sufficient evidence. Its second issue contends that the trial court erred in submitting the definitions of incurable imbecility and incurable insanity in its jury charge over Lubbock County’s objections. By its third issue, Lubbock County contends that the trial court erred in admitting evidence of the personal finances of its expert witness over objection. Its fourth issue contends that the trial court erred in finding that Lubbock County does not have standing to challenge the award of Reyna’s attorney’s fees. By its fifth issue, Lubbock County contends that the trial court erred in finding that Suzanne Novak, M.D., was not a proper rebuttal witness on the issue of attorney’s fees. Finally, by its sixth issue, Lubbock County contends that the trial court erred in commuting Reyna’s attorney’s fees on the basis of erroneous life expectancy tables because such an award constitutes monetary damages that violate sovereign immunity.

Issue One – Factual Sufficiency

By its first issue, Lubbock County contends that the evidence is not factually sufficient to support the jury’s determination that Reyna is entitled to lifetime income benefits. Reyna contends that Lubbock County waived its factual sufficiency challenge by not asserting it in a timely filed motion for new trial.

Rule 324 of the Texas Rules of Civil Procedure provides that to preserve a complaint of factual insufficiency of the evidence to support a jury finding for appellate review, the complaint must be presented to the trial court in a motion for new trial. TEX. R. CIV. P. 324(b)(2). Lubbock County did not file a motion for new trial. Consequently, Lubbock County failed to preserve its challenge to the factual sufficiency of the evidence. We overrule Lubbock County’s first issue.

Issue Two – Jury Charge Definitions

By its second issue, Lubbock County contends that the trial court erred in submitting definitions of incurable imbecility and incurable insanity in its jury charge other than the definitions proposed by Lubbock County. Reyna responds contending that Lubbock County did not sufficiently apprise the trial court of the grounds for its objections to the trial court’s definitions and, therefore, those objections have not been preserved for appellate review.

A request for a definition in the court’s charge must be made separate and apart from the party’s objections to the court’s charge. TEX. R. CIV. P. 273. Objections must be presented to the court in writing or be dictated into the record in the presence of the court and opposing counsel before the charge is read to the jury. TEX. R. CIV. P. 272. Furthermore, an objection must point out distinctly what is objectionable in the charge and the grounds for the objection. TEX. R. CIV. P. 274. If an objection to a charge is not made in this manner, it is considered waived. TEX. R. CIV. P. 272; Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex. 1986). General objections are not sufficient to preserve error. See City of Brenham v. Honerkamp, 950 S.W.2d 760, 766 (Tex. App.—Austin 1997, writ denied) (objection that definition is “not the law in Texas” is not specific enough to preserve error). Further, the objection raised at trial must comport with the complaint presented on appeal. Delaney v. Scheer, No. 03-02-00273-CV, 2003 Tex. App. LEXIS 1080, at *8 (Tex. App.—Austin Feb. 6, 2003, no pet.).

In the present case, the trial court’s jury charge defined “imbecility” as “a brain injury which so affects the non-vocational quality of life by eliminating his ability to engage in a range of usual cognitive processes.” The charge defined “incurable insanity” as “a severe social or cognitive dysfunction that affects the quality of the personal, non-vocational life in a significant activity and is incurable if it is unlikely that normal function can be returned.” Lubbock County objected to these definitions and requested that the definition of imbecility require that the claimant be “permanently unemployable” and that the definition of incurable insanity also provide that the effect be “comparable to the loss of two members or sight of both eyes.” The trial court overruled Lubbock County’s objection and the jury charge was submitted with the initial definitions.

*3 In voicing its objections to these definitions, Lubbock County cited the plaintiff’s proposed definition of imbecile in the case of Chamul. See Chamul v. Amerisure Mut. Ins. Co., 486 S.W.3d 116, 120 (Tex. App.—Houston [1st Dist.] 2016, pet. denied). The issue addressed in the Chamul case regarded whether the definition of imbecility that had been used by the Division of Workers’ Compensation in Chamul’s case and generally was an appropriate definition. Id. at 119. That definition was taken from a 1991 dictionary which provides that imbecility “contemplates that the affected individual will not only require supervision in the performance of routine tasks, but will have a mental age of three to seven years.” Id. (quoting WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1991)).² The Chamul court rejected this definition because its overly narrow, age-specific definition would lead to absurd results wherein a claimant that suffered a traumatic brain injury that resulted in the claimant’s mental age being less than three years would be excluded from receiving lifetime income benefits. Id. at 127. In the present case, the definition of imbecility that was submitted to the jury did not include any sort of age-based limitation. Consequently, because Lubbock County’s reference to Chamul did not specifically identify an applicable ground for its objection to the definition of imbecile used by the trial court, we cannot conclude that this reference preserved any error regarding the definition. See TEX. R. CIV. P. 274.

In addition, Lubbock County cites Chamul for the definition of imbecility that was proposed by the claimant. A review of the opinion reveals that this proposed definition was not analyzed by the Chamul court. Consequently, we cannot understand how Lubbock County’s reference to Chamul put the trial court on notice as to the grounds of its objection. See id.

Finally, Lubbock County contends that, “[a] review of both counsels’ objections and the mutual one-name references of Chamal [sic] and Comacho³ [sic] indicates the off-record conference with the trial judge involved a detailed discussion on the case law and arguments regarding the proposed definitions.” As a reviewing court, we are constrained to review objections that may be found within the record. See TEX. R. APP. P. 33.1. Consequently, we cannot presume that a discussion that was not made part of the record advised the trial court of the grounds for an objection to the court’s charge.

Because we do not find any specific identification of the grounds for Lubbock County’s objection to the trial court’s definitions of incurable imbecility and insanity, nothing is preserved for our review. We overrule Lubbock County’s second issue.

Issue Three – Impeachment of Expert

By its third issue, Lubbock County contends that the trial court erred in admitting evidence of the personal finances of its expert witness, Andrew Brylowski, M.D. Reyna responds contending that Lubbock County waived any objection to the challenged evidence. Reyna also argues that any error in the admission of this evidence was harmless and, therefore, not reversible.

Objections challenging the admissibility of testimony provided by deposition are to be asserted in the same manner as if the deponent were testifying live. See TEX. R. CIV. P. 199.5(e); Volunteer Council of Denton State Sch., Inc. v. Murdine Berry, 795 S.W.2d 230, 235-36 (Tex. App.—Dallas 1990, writ denied) (failure to object to competency of deposition testimony when read into the record waives appellate review of alleged error); Nat’l Bankers Life Ins. Co. v. Rosson, 400 S.W.2d 366, 371 (Tex. Civ. App.—Dallas 1966, writ ref’d n.r.e.) (objection that goes to competency and relevancy of evidence must be raised at the time of offer). To preserve error in the admission of evidence, a party must make a timely objection. An objection is timely if it is made when the evidence is offered. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409-10 (Tex. 1998); Hoxie Implement Co. v. Baker, 65 S.W.3d 140,145 (Tex. App.—Amarillo 2001, pet. denied). Even when a timely objection is made, it is waived if substantially similar evidence is subsequently presented to the jury without objection. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004). The objection must identify the objectionable evidence, identify the rule or legal principle that bars admission of the evidence, and explain how the evidence violates the rule or legal principle. Burleson v. Finley, 581 S.W.2d 304, 310 (Tex. App.—Austin 1979, writ ref’d n.r.e.). A party may request a running objection by describing the scope of objectionable evidence and asking the court to grant a running objection covering all subsequent evidence that fits that description. Ramirez, 159 S.W.3d at 907. A running objection must be specific and is waived if the party fails to object to similar evidence that is not covered by the running objection. Id.; Richardson v. Green, 677 S.W.2d 497, 501 (Tex. 1984).

*4 Lubbock County’s third issue specifically addresses the admission of evidence regarding its expert witness’s personal financial situation while going through a divorce, which resulted in $790,000 in tax liens against his personal residence. Lubbock County objected to this evidence in a writing filed before trial but this objection did not identify any basis for the objection.⁴ Immediately before the recorded deposition was played for the jury, Lubbock County objected on the bases that the evidence was irrelevant to the expert’s medical opinion and its probative value was substantially outweighed by its prejudicial effect. However, the record reflects that once the deposition was played for the jury, Lubbock County did not object at each instance when evidence of its expert’s personal finances was presented and it did not request a running objection to this evidence either. Consequently, we conclude that Lubbock County waived its objection to the admission of this evidence.

Moreover, even if Lubbock County had properly preserved its claim of error to the admission of evidence relating to its expert’s personal finances and assuming without deciding that we would have found the ruling to be erroneous, we conclude that any error would not have caused such harm as to justify reversal of the judgment. Lubbock County bore the burden to establish harm—that the error was reasonably calculated to cause and probably did cause rendition of an improper judgment. In re E.A.K., 192 S.W.3d 133, 148 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). “We review the entire record, and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted.” Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004). Whether erroneously admitted evidence is harmful is often more a matter of judgment than a precise measurement. Id. “In making that judgment, we have sometimes looked to the efforts made by counsel to emphasize the erroneous evidence and whether there was contrary evidence that the improperly admitted evidence was calculated to overcome.” Id.

In the present case, Lubbock County’s expert’s testimony was questioned by Reyna’s treating doctor as well as by a neuropsychologist called by Reyna. Lubbock County’s expert admitted in his deposition that the normal course of his practice involves performing required medical examinations for insurance carriers.⁵ He also admitted that he only sees approximately ten patients and that visits with these patients are infrequent and usually last around forty-five minutes. The jury also heard that Lubbock County’s expert used two different curriculum vitaes but that the one he submitted in this case was the one that omitted references to the work he does for law firms that perform workers’ compensation defense work. All of this evidence conveyed to the jury that Lubbock County’s expert’s financial interests were tied to his work performed for insurance carriers. Finally, Lubbock County cites Reyna’s statement in closing argument that the jury knows who Lubbock County’s expert needs “to keep happy to pay off those tax bills.” However, this bit of Reyna’s closing argument is less than a paragraph of the fourteen pages of Reyna’s closing argument. Considering all the evidence, we cannot conclude that any error in the admission of evidence of Lubbock County’s expert witness’s finances was reasonably calculated to cause and probably did cause the rendition of an improper judgment in this case.

For the foregoing reasons, we overrule Lubbock County’s third issue.

Issues Four Through Six – Attorney’s Fees

By its fourth through sixth issues, Lubbock County challenges various rulings by the trial court that resulted in its purported award of attorney’s fees in favor of Reyna. While we conclude that the judgment is final for appellate purposes, the record does not contain a written order awarding attorney’s fees, which renders Lubbock County’s final three issues moot.

*5 This Court has jurisdiction only over appeals from final judgments of trial courts as well as a few, statutorily listed interlocutory orders. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001); see TEX. CIV. PRAC. & REM. CODE ANN. § 51.014 (West Supp. 2020) (non-exhaustive list of interlocutory orders that may be appealed). We are to presume that a judgment is final when it is entered after a conventional trial on the merits. Vaughn v. Drennon, 324 S.W.3d 560, 562 (Tex. 2010); Moritz v. Preiss, 121 S.W.3d 715, 718-19 (Tex. 2003). This presumption, otherwise known as the Aldridge presumption, states:

When a judgment, not intrinsically interlocutory in character, is rendered and entered in a case regularly set for a conventional trial on the merits, no order for a separate trial of issues having been entered pursuant to [the] Texas Rules of Civil Procedure, it will be presumed for appeal purposes that the Court intended to, and did, dispose of all parties legally before it and of all issues made by the pleadings between such parties.

N. E. Indep. Sch. Dist. v. Aldridge, 400 S.W.2d 893, 897-98 (Tex. 1966). Under this presumption, a judgment need not expressly dispose of all issues or claims to be final. Vaughn, 324 S.W.3d at 562.

In the present case, the trial court entered its judgment after holding a conventional trial on the merits without an order for a separate trial of any issues, entitled its judgment a “Final Judgment,” and included a statement in the judgment that all relief requested that is not expressly granted is denied, all of which indicate finality. Lehmann, 39 S.W.3d at 201. The record reveals nothing to otherwise indicate that the trial court did not intend to finally dispose of the entire case. Moritz, 121 S.W.3d at 719. Consequently, we conclude that the judgment in the present case is final.

While we conclude that the judgment entered in this case is final, it does not make an award of attorney’s fees as challenged by Lubbock County. As to the issue of attorney’s fees, the judgment provides, “the Court ORDERS a lump-sum payment of attorney fees payable to Plaintiff’s attorney to be paid out of Plaintiff’s benefits in accordance with a separate order of the Court incorporated herein by reference.” However, the record does not contain a separate order identifying how attorney’s fees are to be paid or the amount of those attorney’s fees.⁶

Lubbock County argues that the trial court erred in finding that Lubbock County did not have standing to challenge the trial court’s award of attorney’s fees to Reyna (Issue Four), excluding its rebuttal witness on the issue of attorney’s fees (Issue Five), and awarding lump-sum attorney’s fees based on Reyna’s life expectancy, which constituted monetary damages in violation of Lubbock County’s sovereign immunity (Issue Six). These issues presume that the trial court entered an award of attorney’s fees in favor of Reyna. However, as indicated above, the record does not contain an order awarding attorney’s fees. As such, Lubbock County’s challenges are moot. We cannot reverse an order not entered by the trial court. Consequently, we overrule Lubbock County’s fourth through sixth issues.

*6 Any complaint regarding the trial court’s failure to enter an award of attorney’s fees should have been raised by way of a motion for new trial or motion for correction, modification, or reformation of the judgment filed at a time when the trial court retained plenary power over the case. See Demler v. Demler, 836 S.W.2d 696, 700 (Tex. App.—Dallas 1992, no writ) (claim of error in award of attorney’s fees is waived on appeal if not raised in timely motion for new trial or other post-judgment motion).

Conclusion

Having overruled each of Lubbock County’s issues, we affirm the judgment of the trial court.

Footnotes
1	See TEX. LABOR CODE ANN. § 408.221(b) (West 2015).
2	The Division of Workers’ Compensation hearing officer cited two sources in Chamul to support the use of this definition: Liberty Mut. Ins. Co. v. Camacho, 228 S.W.3d 453 (Tex. App.—Beaumont 2007, pet. denied), and DWC Appeals Panel Decision No. 961340, 1996 TX Wrk. Comp. LEXIS 4631 (Aug. 21, 1996).
3	The only reference to the Camacho case that we find in the discussion of the trial court’s charge came when Reyna requested a different definition of imbecility by explaining, “the Camacho case, which is cited in the Chamul case, provides us with a more recent definition, that being the definition for ‘imbecile’ is a ‘mentally deficient person –.’ ” As such, the record does not reflect how any reference to the Camacho case could be said to have specifically identified the grounds for any objection to the trial court’s definition of imbecile.
4	Lubbock County’s written objection merely identifies two portions of the recorded deposition and two exhibits as objectionable but does not identify any basis for why this evidence is objectionable.
5	Only insurance carriers may request required medical examinations in the workers’ compensation context. See TEX. LABOR CODE ANN. § 408.004 (West 2015).
6	After thoroughly reviewing the clerk’s record and contacting the district clerk to obtain a copy of the separate order referenced by the judgment, we notified the parties that the record did not reflect an order on attorney’s fees. Reyna responded indicating that the trial court appears not to have signed a separate order on attorney’s fees.

Court of Appeals of Texas, Amarillo.

TEXAS MUTUAL INSURANCE COMPANY, Appellant

v.

Rosa MENDEZ, Appellee

No. 07-19-00087-CV

|

May 26, 2020

Attorneys & Firms

Tia Wilson, Lubbock, John E. Gibson, for Appellee.

Eric G. Behrens, James A. Hemphill, Austin, Charles Russell, Shannon Simmons Pounds, Mary Barrow Nichols, Austin, for Appellant.

Before PIRTLE and PARKER and DOSS, JJ.

MEMORANDUM OPINION

Judy C. Parker, Justice

*1 Rosa Mendez, appellee, brought a claim for death benefits against the insurance carrier, Texas Mutual Insurance Company, appellant, that provided workers’ compensation insurance to her son’s employer. A hearing was held before a contested case hearing officer of the Texas Department of Insurance Division of Workers’ Compensation (DWC). The hearing officer ruled in favor of Texas Mutual on the basis that Mendez’s son was intoxicated at the time of the accident. After the DWC’s Appeals Panel affirmed the hearing officer’s determination, Mendez sought judicial review. Following trial, a jury found that Mendez proved that her son was not intoxicated at the time of his injury. The trial court entered judgment in Mendez’s favor, and Texas Mutual timely appealed. We reverse and remand the issue of attorney’s fees to the trial court, but affirm the remainder of the judgment.

Factual and Procedural Background

Matthew Mendez worked for Venture Chemicals in Seagraves, Texas. While dumping some material into a mixing machine on November 14, 2014, Matthew’s foot slipped and went into the machine, which then pulled him into the mixer causing his death. Following his death, a toxicology screen was performed that indicated that Matthew had marijuana metabolites in his blood at the time of his death.

Following Matthew’s death, his mother, Mendez, brought a claim for death benefits against Venture’s workers’ compensation insurer, Texas Mutual. Texas Mutual denied Mendez’s claim on the basis that Matthew was intoxicated at the time of the accident. A hearing was held before a DWC hearing officer who found that Matthew was intoxicated at the time of the accident. Mendez appealed the hearing officer’s decision to the DWC Appeals Panel, which agreed with the hearing officer’s determination that Matthew was intoxicated at the time of the accident. Mendez then filed her claim for judicial review, which included a claim for attorney’s fees. Her death benefits claim was heard by a jury. Mendez presented the testimony of Daniel Miller, a coworker of Matthew’s who witnessed the accident, and expert testimony from Dr. Sarah Kerrigan. Texas Mutual presented expert testimony from Dr. Nelson Avery. After hearing the evidence, the jury returned a unanimous verdict that Matthew was not intoxicated at the time of his death. After the trial, Mendez’s attorney submitted written evidence to the trial court regarding the attorney’s fees he had charged to represent her in the case. In addition, Mendez’s attorney requested that his future attorney’s fees be commuted and paid in a lump sum based on the present value of 25 percent of the death benefits Mendez is to receive. Texas Mutual objected to Mendez’s request to commute future attorney’s fees. The trial court approved Mendez’s claim for past attorney’s fees and commuted her future attorney’s fees to a lump sum based on the statutory limit on death benefits being payable to Mendez for 364 weeks.¹ Texas Mutual filed motions for judgment notwithstanding the verdict and new trial, which were overruled by operation of law. Texas Mutual then timely filed the instant appeal.

*2 Texas Mutual presents five issues by its appeal. Its first issue contends that the jury’s determination that Matthew was not intoxicated at the time of the accident was legally and factually insufficient. Texas Mutual’s remaining four issues each address the award of attorney’s fees to Mendez. Its second issue challenges the sufficiency of the evidence to support the award of attorney’s fees when the only evidence of the fees was submitted to the trial court for an in camera inspection. Its third and fourth issues challenge the trial court’s commutation of Mendez’s attorney’s fees. Texas Mutual’s fifth issue is presented in the alternative and contends that the trial court erred in failing to grant Texas Mutual’s request for a jury trial on the amount of attorney’s fees.

Standard of Review

A challenge to the legal sufficiency of the evidence on an issue over which appellant did not have the burden of proof at trial, requires a demonstration that no evidence supports the finding. Lone Star Engine Installation Ctr., Inc. v. Gonzales, No. 05-14-01616-CV, 2016 WL 2765079, at *5, 2016 Tex. App. LEXIS 5006, at *15 (Tex. App.—Dallas May 11, 2016, pet. denied) (mem. op.) (citing Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983)). In performing a legal sufficiency review, we are to review all of the evidence in the light most favorable to the verdict and indulge all reasonable inferences in the verdict’s favor. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). The court must credit favorable evidence if reasonable jurors could and disregard contrary evidence unless reasonable jurors could not. Id. at 827. Ultimately, we must determine whether the evidence at trial was such that it would enable reasonable and fair-minded people to reach the verdict under review. Id.

When a party challenges the factual sufficiency of a finding on which he bore the burden of proof, he must “demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.” Saldana v. Williams, No. 07-19-00001-CV, 2020 WL 1880954, at *1, 2020 Tex. App. LEXIS 3171, at *5 (Tex. App.—Amarillo Apr. 15, 2020, no pet. h.) (mem. op.) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001)). In conducting a factual sufficiency review, a reviewing court must consider and weigh all the record evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998). We may set aside the verdict only when it is so contrary to the great weight of the evidence as to be clearly wrong and unjust. Id. at 407. We may not substitute our own judgment for that of the jury, even if we would reach a different conclusion based on the evidence. Id.

Construing a statute, such as the Labor Code provisions relevant to the trial court’s award of attorney’s fees, presents issues of law that are reviewed de novo. State Office of Risk Mgmt. v. Olivas, 509 S.W.3d 499, 503 (Tex. App.—El Paso 2016, no pet.). When construing a statutory provision, our primary focus is to give effect to legislative intent, which we determine based on the language of the statute, its legislative history, the objective sought, and the consequences that would flow from alternative constructions. Id. (citing Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 383 (Tex. 2000)). We look first and foremost to the language used in the statute. Id. (citing Lexington Ins. Co. v. Strayhorn, 209 S.W.3d 83, 85 (Tex. 2006)). We do not look to sources beyond the text of a statute unless the plain language of the statute would lead to absurd results. Id. (citing Entergy Gulf States, Inc. v. Summers, 282 S.W.3d 433, 437 (Tex. 2009)).

Intoxication

By its first issue, Texas Mutual contends that the evidence is legally and factually insufficient to support the jury’s determination that Matthew was not intoxicated at the time of the accident resulting in his death. We disagree.

*3 A workers’ compensation insurance carrier is not liable for compensation if an injury occurs while the employee was in a state of intoxication at the time of the injury. TEX. LABOR CODE ANN. § 406.032(1)(A) (West 2015). Intoxication is statutorily defined as “not having the normal use of mental or physical faculties resulting from the voluntary introduction into the body of ... a controlled substance ... as defined by [s]ection 481.002, Health and Safety Code....” Id. § 401.013(a)(2)(B) (West 2015). Unlike with alcohol, there is no test defined by statute that establishes per se whether a person has lost the use of his physical or mental faculties due to the ingestion of a controlled substance. Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 115 (Tex. App.—Beaumont 2005, pet. denied). The standard for marijuana is relatively subjective. Id. The issue in a compensation case involving an allegation of intoxication by a controlled substance is not whether the substance was, to some degree, in the claimant’s body at the time of the accident, but rather the issue is whether the claimant was physically or mentally impaired at the time of the accident due to ingestion of the controlled substance. Id.

When the insurance carrier shows the voluntary ingestion of a controlled substance based on a blood or urine test, there arises “a rebuttable presumption that a person is intoxicated and does not have the normal use of mental or physical faculties.” Tex. Mut. Ins. Co. v. Havard, No. 01-07-00268-CV, 2008 WL 598347, at *3, 2008 Tex. App. LEXIS 1614, at *7 (Tex. App.—Houston [1st Dist.] Mar. 6, 2008, no pet.) (mem. op.) (quoting TEX. LABOR CODE ANN. § 401.013(c)). An employee is generally presumed to be sober but, when the carrier rebuts the presumption of sobriety with probative evidence of intoxication, the burden shifts to the employee to prove that he was not intoxicated at the time of the accident. Bituminous Fire & Marine Ins. Co. v. Ruel, No. 07-12-00507-CV, 2014 WL 2553348, at *5, 2014 Tex. App. LEXIS 6093, at *11 (Tex. App.—Amarillo June 4, 2014, pet. denied) (mem. op.). As applicable to the present case, because Matthew’s blood tested positive for marijuana, Mendez bore the burden to prove Matthew was not intoxicated by a preponderance of the evidence at trial.

There is no dispute that Matthew’s post-mortem blood tested positive for marijuana metabolites. At trial, Texas Mutual offered the testimony of Dr. Avery. Dr. Avery testified that Matthew’s post-mortem blood test indicated a high level of marijuana in his system, leading him to conclude that Matthew was likely legally intoxicated at the time the accident occurred. Mendez called Dr. Kerrigan, who testified that, due to the nature of Matthew’s injuries, the results of the blood test are unreliable and should not be considered in determining whether Matthew was intoxicated at the time of the accident. While the experts disagreed in a mutually exclusive manner, we are not to invade the province of the jury to determine the credibility of witnesses, the weight to be given their testimony, and whether to accept or reject all or part of their testimony. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).

Mendez also offered the testimony of Daniel Miller, a coworker of Matthew who witnessed the accident. Miller, who was incarcerated at the time of the trial, testified by video that Matthew’s shift started at 6:00 a.m. on the day of the accident, which occurred around 11:00 a.m. He testified that he and Matthew had climbed the ladder to the top of the industrial blender where they were standing about two feet apart so that they could dump lint into the blender. Miller’s testimony regarding Matthew’s condition was as follows:

Q. But were you allowed to use drugs or drink alcohol on the job?

A. No.

Q. As you were putting the product into the blender, did Matthew Mendez smell like he had been smoking marijuana?

A. No, sir.

Q. Pretty much anybody who has ever been to a rock concert probably has smelled marijuana. Would you agree with that?

A. Yes.

Q. Are you familiar with the smell of marijuana?

*4 A. Yes, sir.

Q. Marijuana has a distinct smell. Would that be fair to say?

A. Yes, sir.

Q. All right. As Matthew Mendez was putting the product into the blender, did he seem to be high on drugs to you?

A. Not that I am aware of, no.

Q. Did he appear to be high?

A. No.

Q. Was he slurring his words?

A. No, sir.

Q. Did he -- was he very slow such that -- that people were upset with the speed he was doing his job?

A. No, sir.

Q. As Matthew Mendez was putting the product into the blender, did he appear to have the normal use of his mental faculties?

A. Yes, sir.

Q. Let me ask again. As Matthew Mendez was putting the product into the blender, did he appear to have the normal use of his physical faculties?

A. Yes, sir.

Q. At any time that morning at work, did you observe Matthew Mendez smoking pot?

A. No, sir.

Q. Did you observe Matthew Mendez ingesting pot or marijuana in any form?

A. No, sir.

Texas Mutual did not call any witnesses to directly controvert Miller’s testimony.

Looking at all the evidence in the light most favorable to the verdict and indulging all reasonable inferences in the verdict’s favor, see Wilson, 168 S.W.3d at 822, we conclude that a reasonable factfinder could conclude that Matthew was not intoxicated at the time of the accident. The expert testimony presented in this case did not conclusively establish whether Matthew was intoxicated at the time of his injury. However, the jury concluded that Miller’s testimony sufficiently rebutted the presumption of intoxication and established by a preponderance of the evidence that Matthew was not intoxicated at the time of the accident. We conclude that Miller’s testimony was sufficient to allow a reasonable jury to conclude that Matthew was not physically or mentally impaired at the time of the accident due to ingestion of a controlled substance. Accordingly, the evidence in this case is legally sufficient to support the jury’s finding that Matthew was not intoxicated at the time of his injury. See Hinson, 172 S.W.3d at 115.

Considering all the evidence, we conclude that the jury’s verdict is not so contrary to the great weight of the evidence as to be clearly wrong and unjust. See Ellis, 971 S.W.2d at 407. As above, we conclude that Dr. Kerrigan’s testimony would allow a rational jury to disbelieve the conclusions reached by Dr. Avery. Likewise, Miller’s testimony was such that the jury could conclude that Matthew was not intoxicated at the time of the accident. A lay person is competent to testify to whether a person was acting normally at the time of an injury. Unique Staff Leasing, Ltd. v. Cates, 500 S.W.3d 587, 593 (Tex. App.—Eastland 2016, pet. denied) (citing Hinson, 172 S.W.3d at 117). As the sole judge of the credibility of the witnesses, the jury was free to accept Miller’s testimony that Matthew had the normal use of his mental and physical faculties at the time of the accident and it was free to disbelieve Dr. Avery’s contrary testimony. See Robinson, 923 S.W.2d at 558. As such, we conclude that the jury’s verdict was not against the great weight and preponderance of the evidence.

*5 Texas Mutual contends that Miller’s testimony was not sufficient evidence because it was conclusory as to the issue of whether Matthew was intoxicated at the time of the accident. It argues that Miller simply responded to leading questions with “yes” and “no” responses without providing any explanation or elaboration for his conclusions. We note that Texas Mutual did not object to the questioning of Miller on the basis that it was leading and, therefore, it has failed to preserve this argument for appellate review. See TEX. R. APP. P. 33.1(a). While Miller did not elaborate on the basis for his belief, he unequivocally testified that, at the time of the accident, Matthew appeared to have the normal use of his mental and physical faculties.² His testimony was based on his observations of Matthew on the day of the accident. Texas Mutual was afforded the opportunity to cross-examine Miller to address the basis for his belief but did not do so.³ Consequently, we do not find Miller’s testimony so conclusory as to constitute no evidence. As such, it was reasonable for the jury to afford his testimony sufficient weight to allow it to conclude that Matthew was not intoxicated at the time of the accident causing his death.

For the foregoing reasons, we overrule Texas Mutual’s first issue.

Attorney’s Fees

Texas Mutual’s remaining issues each address the trial court’s award of attorney’s fees in favor of Mendez. Texas Mutual’s second issue contends that the evidence was insufficient to support the trial court’s award of attorney’s fees. Its third and fourth issues challenge the commutation of attorney’s fees on the basis that the commuted fee award could exceed the statutory cap of 25 percent of workers’ compensation benefits and is not based on a sum certain, respectively. Texas Mutual’s fifth issue is an alternative argument that, if commutation was appropriate, the trial court erred in not granting Texas Mutual’s request for a jury trial on the appropriate amount of attorney’s fees. Mendez responds contending that Texas Mutual lacks standing to challenge the award of attorney’s fees entered in this case. We will address each of these issues in a logical rather than sequential manner.

Standing

Standing is a prerequisite to subject matter jurisdiction, which is essential to a court’s power to decide a case. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553-54 (Tex. 2000); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). When a party lacks standing, a court lacks subject matter jurisdiction to hear the case. Blue, 34 S.W.3d at 553-54. Standing is never presumed, cannot be waived, and may be raised for the first time on appeal. Tex. Ass’n of Bus., 852 S.W.2d at 443-44.

Standing considers whether a party has a sufficient relationship with the lawsuit to have a justiciable interest in its outcome. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). Generally, the test for standing requires there to be a real controversy between the parties that will actually be resolved by the judicial declaration sought. Tex. Ass’n of Bus., 852 S.W.2d at 446; Lovato, 171 S.W.3d at 849. In other words, litigants must be “properly situated to be entitled to [a] judicial determination.” Lovato, 171 S.W.3d at 849.

A party has standing to sue if it has been personally aggrieved by an alleged wrong. Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996). More specifically, “a party has standing if they (1) have sustained, or is immediately in danger of sustaining, some direct injury as a result of the wrongful act complained of; (2) have a direct relationship between the alleged injury and claim sought to be adjudicated; (3) have a personal stake in the controversy; (4) have suffered some injury in fact, either economic, recreational, environmental, or otherwise; or (5) are an appropriate party to assert the public’s interest in the matter, as well as their own.” Tex. Mut. Ins. Co. v. DeJaynes, 590 S.W.3d 654, 662 (Tex. App.—El Paso 2019, pet. filed).

*6 Here, Mendez contends that Texas Mutual does not have standing to challenge the trial court’s award of attorney’s fees because it is a “stranger” to the attorney’s fee contract and is not aggrieved by the trial court’s award. However, we conclude that the trial court’s decision to commute Mendez’s attoney’s fees, which requires Texas Mutual to pay those fees up front, creates a sufficient interest in Texas Mutual to establish its standing to challenge the award. If Mendez’s attorney’s fees were not commuted, Texas Mutual would pay those fees out of Mendez’s weekly benefits as those benefits are paid. The trial court’s determination that Mendez is entitled to death benefits for 364 weeks is based on actuarial tables that may not accurately reflect Mendez’s actual life span. Consequently, by paying a commuted fee, Texas Mutual is required to accept the risk that Mendez will live long enough to recover all of the benefits to which she is entitled. “Acceptance of that risk gives [Texas Mutual] a personal stake in the controversy, and at least some potential injury in fact.” Id. at 663 (citing CenterPoint Energy Entex v. R.R. Comm’n of Tex., 213 S.W.3d 364, 368 (Tex. App.—Austin 2006, no pet.), for proposition that utility’s possibility of not recovering its outlay over time affords it standing). While we recognize that Texas Mutual will pay the fees out of Mendez’s benefits, it is only obligated to pay those fees for 364 weeks or until Mendez dies. TEX. LABOR CODE ANN. § 408.183(g). Because Texas Mutual is statutorily relieved of its obligation to pay Mendez death benefits in the event her death, its payment of a commuted attorney fee award that is premised on Mendez receiving 364 weeks of payment exposes Texas Mutual to loss sufficient to establish its standing to challenge the award.

Statutory 25 Percent Cap

Texas Mutual’s third issue contends that the trial court’s commutation of Mendez’s attorney’s fees could violate the 25 percent cap on attorney’s fees established in section 408.221 of the Labor Code. That section provides, in relevant part,

(e) The commissioner by rule or the court may provide for the commutation of an attorney’s fee, except that the attorney’s fee shall be paid in periodic payments in a claim involving death benefits if the only dispute is as to the proper beneficiary or beneficiaries.

* * *

(i) Except as provided by Subsection (c) or Section 408.147(c), an attorney’s fee may not exceed 25 percent of the claimant’s recovery.

Id. § 408.221(e), (i) (West 2015). Texas Mutual contends that, if Mendez’s attorney’s fees are commuted, it is possible that the fee could exceed the 25 percent cap. As an example, Mendez could pass away soon after she begins receiving death benefits, which would cause her benefits to stop, but Texas Mutual would have already paid out Mendez’s attorney’s fees in an amount that would exceed the cap.

Texas Mutual has not cited to any case law that directly addresses its argument. Under the prior workers’ compensation statute, commutation of attorney’s fees was allowed regardless of whether the future payments had been fixed, including payments that were contingent on the non-occurrence of a future event, such as a spouse remarrying. DeJaynes, 590 S.W.3d at 664 (citing Tex. Emp’rs’ Ins. Ass’n v. Motley, 491 S.W.2d 395, 396 (Tex. 1973); Tex. Emp’rs’ Ins. Ass’n v. Clapper, 605 S.W.2d 938, 943 (Tex. App.—Houston [1st Dist.] 1980, no writ); Tex. Emp’rs’ Ins. Ass’n v. Flores, 564 S.W.2d 831, 833 (Tex. App.—Fort Worth 1978, writ ref’d n.r.e.); Liberty Mut. Ins. Co. v. Ramos, 543 S.W.2d 392, 393 (Tex. App.—El Paso 1976, writ ref’d n.r.e.)).

In Olivas, the carrier argued that, if the attorney’s fees are being paid out of the claimant’s benefits, the attorney’s fee must be paid over time in the same manner as the claimant’s weekly benefits. Olivas, 509 S.W.3d at 511. The court noted that section 408.221(e) specifically allows for commutation of attorney’s fees in all but uncontested death benefit cases. Id. at 512; see TEX. LABOR CODE ANN. § 408.221(e). The legislature is presumed to know the existing law when it enacts a statute. See TEX. GOV’T CODE ANN. § 311.023(4) (West 2013); Olivas, 509 S.W.3d at 512. The legislature could have disallowed commutation of attorney’s fees in the new Act but, instead, it specifically permitted them. TEX. LABOR CODE ANN. § 408.221(e); Olivas, 509 S.W.3d at 512. Because it did not do so, we must presume that the legislature intended to continue to permit the commutation of attorney fee awards.

In DeJaynes, the court rejected the carrier’s argument that the award of commuted attorney’s fees should be disallowed because such an award could violate the statutory 25 percent cap. DeJaynes, 590 S.W.3d at 665. The DeJaynes court explained that, according to the carrier’s argument, attorney’s fees could never be commuted without potentially exceeding the 25 percent cap. Id. However, since the legislature expressly authorized the commutation of attorney’s fees, the only express restriction on an award of attorney’s fees is that it must be supported by evidence of the actual time and expenses of the attorney. TEX. LAB. CODE ANN. § 408.221(a), (b). We do not find authority that would justify construing the 25 percent cap in such a way that would vitiate the legislature’s express authorization of the commutation of attorney’s fees. We conclude that the requirements are met when the commission or court has approved the attorney fee award and the award is within 25 percent of the expected benefit stream. See DeJaynes, 590 S.W.3d at 665. We overrule Texas Mutual’s third issue.

Sum Certain Requirement

*7 Texas Mutual’s fourth issue contends that Mendez’s attorney’s fees could not be commuted because the trial court’s compensability determination did not establish a “sum certain award or order to pay benefits.”

Under the applicable administrative rule, commutation is allowed only from a sum certain award or order to pay benefits. 28 TEX. ADMIN. CODE § 152.1(d) (2019) (Tex. Dep’t of Ins., Attorney Fees: General Provisions). The full text of the relevant portions of the rule provides as follows:

An attorney’s fee for representing a claimant may upon request by the attorney or carrier and approval by the commission be commuted to a lump sum only out of a sum certain award or order to pay benefits. This commuted fee may be discounted for present payment at the rate provided under the Act, [section] 401.023, and shall not exceed 25 [percent] of the unpaid sum certain. A commuted fee shall be recouped by the carrier out of the future income benefits paid to the represented claimant, not to exceed more than 25 [percent] out of any single payment. The fee for representing a claimant for death benefits cannot be commuted where the only dispute involves identification of the proper beneficiaries.

Id. Texas Mutual cites Sharp v. Caterpillar, Inc., 932 S.W.2d 230, 234 (Tex. App.—Austin 1996, writ denied), for the proposition that liability is not a sum certain when based on actuarial projections.

We reject Texas Mutual’s contention for several reasons. The language of the rule quoted above expressly applies to the DWC’s approval of commuted fees. 28 TEX. ADMIN. CODE § 152.1(d). By its terms, it does not address a district court’s commutation of fees. See id.; DeJaynes, 590 S.W.3d at 666. Second, while the trial court’s judgment did not include a specific order to pay benefits, that is the natural result of its reversal of the DWC’s previous orders. See DeJaynes, 590 S.W.3d at 666. Third, the language of the rule expressly allows for the commutation of attorney’s fees in all cases other than in death cases where the only issue is the proper beneficiary. See 28 TEX. ADMIN. CODE § 152.1(d). Consequently, the rule implies that commutation of benefits is allowed in death benefit cases where compensability is the issue. DeJaynes, 590 S.W.3d at 666. Fourth, most death beneficiaries receive some portion of their benefits paid out in the future but these benefits may be cut off by the occurrence of some future event. See id. (citing TEX. LABOR CODE ANN. § 408.183, as including many instances where death beneficiaries’ future benefits terminate following the occurrence of a future event). As such, none of these claims would produce a “sum certain” that would qualify for commutation under Texas Mutual’s reading of the rule. But, applying Texas Mutual’s interpretation “would effectively read the last sentence of [r]ule 152.1(d) out of the rule, and violate the presumption that every word in a statute has been used for a purpose.” Id. at 666-67 (citing City of Richardson v. Oncor Elec. Delivery Co., 539 S.W.3d 252, 260 (Tex. 2018)). For the foregoing reasons, we overrule Texas Mutual’s fourth issue.

Contingency Fee Award

By its second issue, Texas Mutual contends that the trial court erred in approving a 25 percent contingent fee award rather than requiring any fee award to be based on the attorney’s time and expenses, as established by adequate evidence. We agree with Texas Mutual’s contention regarding the inadequacy of the evidence to support the trial court’s fee award and will limit our discussion to that aspect of the issue.⁴

*8 The Labor Code requires that all attorney fee awards, including contingency fee agreements, be based on the attorney’s time and expenses. TEX. LABOR CODE ANN. § 408.221(a), (b). In other words, even when the claimant’s attorney has a percentage-based contingency fee agreement with the claimant, the court must review the time and expenses the attorney spent on the case before approving the fee. Id. § 408.221(b); Olivas, 509 S.W.3d at 508. In the present case, this Court cannot determine whether the trial court approved Mendez’s attorney’s fees based solely on the contingency fee agreement or based on the agreement coupled with consideration of the time and expenses incurred by the attorney in presenting the case. Our uncertainty is due to the trial court allowing Mendez’s attorney to submit billing records only for in camera inspection by the trial court. This results in the appellate record not containing the information the trial court considered in approving Mendez’s attorney’s fees. Because the in camera inspection process prevented the billing records from becoming part of the appellate record, we are unable to confirm that the trial court made its award of attorney’s fees on the basis of the factors expressly identified by section 408.221(d), and not solely on the basis of the contingency fee agreement between Mendez and her attorney.⁵ See TEX. LABOR CODE ANN. § 408.221(d); Olivas, 509 S.W.3d at 508 (“DWC ... rules make no allowance for approving a fee based only on a contingency agreement.”). Consequently, we sustain Texas Mutual’s second issue.

Jury Trial on Attorney’s Fees

By its fifth issue, Texas Mutual contends that, if we determine that commutation of Mendez’s attorney’s fees was appropriate, it should have been allowed to present its argument concerning the amount of attorney’s fees to the jury. Certainly, when a carrier is required to pay a claimant’s attorney’s fees out of its own funds, it is entitled to have a jury determine the amount of those fees. Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 232 (Tex. 2010). However, it would be improper for attorney’s fees awarded from the claimant’s benefits to be determined by a jury. Id. at 229-30 (“In reviewing fees awarded in this situation, we have ‘held that the amount of the attorney’s fees to be allowed in compensation cases is a matter for the trial court to determine without the aid of a jury, and the amount of the recovery is within its discretion.”); DeJaynes, 590 S.W.3d at 671. This is so because section 408.221(b), which governs attorney fee awards paid from a claimant’s benefits, expressly provides that, “an attorney’s fee under this section is based on the attorney’s time and expenses according to written evidence presented to the division or court.” TEX. LABOR CODE ANN. § 408.221(b) (emphasis added). As we have discussed, the attorney’s fees being awarded in the present case are being paid from Mendez’s benefits. We conclude that having a jury determine the amount of attorney’s fees in this case is disallowed by both statute and case law. We overrule Texas Mutual’s fifth issue.

Conclusion

Having sustained Texas Mutual’s second issue on the basis that the appellate record does not reflect that the trial court’s award of attorney’s fees was based on adequate evidence, we reverse the order of the trial court awarding attorney’s fees and remand for consideration of the issue of attorney’s fees in accordance with this opinion. In all other respects, the judgment of the trial court is affirmed.

Footnotes
1	Mendez is eligible for 364 weeks of death benefit payments as a dependent beneficiary of Matthew. See TEX. LABOR CODE ANN. § 408.183(g) (West Supp. 2019). We note that Texas Mutual has not brought forth a challenge regarding whether Mendez was a dependent of Matthew.
2	When asked whether Matthew seemed to be high on drugs, Miller responded, “[n]ot that I am aware of.” Texas Mutual contends that this “qualification” falls “materially short of affirmatively proving that [Matthew] was not intoxicated....” We emphasize that Mendez’s burden of proof was whether Matthew had the normal use of his mental and physical faculties and, on this issue, Miller was unequivocal. That Miller was less adamant in his response to the question of whether Matthew seemed high on drugs does not render his testimony so conclusory as to amount to no evidence.
3	Texas Mutual’s entire cross-examination of Miller consisted of the following: Q. Mr. Miller, your testimony is you did not see him ingest any kind of marijuana, correct? A. Yes, sir. Q. But you are not saying that he didn’t. You are just saying that you didn’t see him do it? A. Yes, sir.
4	We refer the trial court and the parties to the DeJaynes discussion of the appropriateness of a contingency fee award and the appropriate method for calculating a fee award in a case such as the present one. DeJaynes, 590 S.W.3d at 667-671.
5	We are aware of and have reviewed Mendez’s counsel’s affidavit in support of his Motion for Approval of Attorney Fees. Other than citing the contingency fee agreement, this affidavit speaks in generalities and does not amount to a written identification of the attorney’s time and expenses. See TEX. LABOR CODE ANN. § 408.221(b).

Court of Appeals of Texas, Amarillo.

Odelia Laura CAUDILLO, Appellant

v.

Daniel CAUDILLO, Appellee

No. 07-19-00198-CV

|

April 24, 2020

On Appeal from the 140th District Court, Lubbock County, Texas, Trial Court No. 2015-517,163; Honorable Jim Bob Darnell, Presiding

Attorneys & Firms

Terri M. Morgeson, for Appellant.

Benjamin Webb, for Appellee.

Before DOSS, JJ.

MEMORANDUM OPINION

Patrick A. Pirtle, Justice

*1 Daniel Caudillo and Odelia Laura Caudillo were divorced by a Final Decree of Divorce signed April 24, 2019. As part of the decree, Daniel was ordered to pay spousal maintenance in the amount of $400 per month, with the first payment being due retroactively on November 1, 2018, and each subsequent payment being due on the first day of each consecutive month until the earliest of one of several listed events occurred. Odelia argues the trial court abused its discretion by (1) changing the start date and duration of the court-ordered spousal maintenance and (2) determining she was eligible for spousal maintenance under section 8.054(a)(1)(C) instead of section 8.054(a)(2)(A) of the Texas Family Code. For the reasons that follow, we will affirm the divorce decree of the trial court.

BACKGROUND

Daniel and Odelia married in 1977 and separated in 2015. On August 24, 2015, Daniel filed for divorce. Odelia counter-petitioned, requesting temporary spousal support and post-divorce spousal maintenance. A hearing regarding temporary orders was held before an associate judge. At the conclusion of that hearing, the associate judge ordered Daniel to pay to Odelia $700 per month in temporary spousal support. Daniel appealed that ruling to the district court. Following a full de novo hearing, the judge ordered Daniel to pay to Odelia $400 per month, beginning on November 15, 2015. Daniel did not begin paying at that time and Odelia filed a motion to enforce the order. Daniel began paying the temporary spousal support in April 2016.

On October 15, 2018, the court held a contested hearing concerning the disposition of property in relation to Daniel and Odelia’s divorce. During that hearing, both parties testified. Odelia testified she was disabled. She told the court it affected her everyday life and her ability to obtain employment. She testified she began receiving social security disability benefits the previous year. She also testified “[t]here’s no way I can go back and get a job ... [b]ecause I’m disabled. I got osteoarthritis. I can’t do anything physical that much.” She said, “I can’t lift, crawl, climb stairs, stoop, bend or—everything.” She testified that if she tries to do these things, it is “painful, very painful.” Odelia also testified about her income from her disability benefits, her retirement, as well as her customary monthly expenses. She answered “No” when asked whether she would be able to pay for all of the expenses without Daniel’s spousal support. She told the court her previous employment had been as a teacher but that she had not worked in that capacity for many years.

Daniel answered affirmatively when asked whether he was aware that Odelia was disabled. He also stated that he knew the federal government had determined she was unable to work because of her disability. With regard to spousal maintenance, he said he “could live with what I’m giving her right now,” which was the $400 per month ordered after the de novo temporary hearing.

*2 At the close of the hearing, the court asked for additional documentation and took the matter under advisement. On October 18, 2018, the judge sent an email to counsel with an attachment entitled “Property Division.” That document included the statement, “Daniel will pay $400 per month beginning Nov[ember] 1, 2018.” The email was filed with the court on October 29, 2018. Odelia’s attorney did not receive notice of the October 18 email until October 29 because the October 18 email was sent to an incorrect email address. Through email exchanges between October 18 and October 29, Daniel’s attorney and the judge discussed the duration of the spousal maintenance award. The judge responded to Daniel’s inquiry concerning the duration of the award, stating “10 yrs but would start when payments started under temporary orders.” Daniel had been ordered to pay temporary spousal support beginning in November 2015. The Final Decree of Divorce provided, however, that Daniel pay spousal maintenance in the amount of $400 per month, “with the first payment being due on November 01, 2018, and a like amount being due on the first (1st) day of each consecutive month thereafter until the earliest of one of the following events: (1) seven (7) years; (2) death of either [Daniel] or [Odelia]; (3) remarriage of Odelia [ ]; or (4) further orders of the Court affecting the spousal maintenance obligation....”

In early 2019, Odelia filed motions to enter judgment, requesting the trial court to sign her proposed Final Decree of Divorce, which contained a spousal maintenance provision that corresponded to the October 18 email, which included the memorandum stating that “Daniel will pay $400 per month beginning November 01, 2018.” According to Odelia’s interpretation, the email constituted a rendition of judgment providing for indefinite spousal maintenance. In April 2019, the trial court held a hearing on Odelia’s motion for judgment. At that hearing, Daniel’s counsel acknowledged the email conversation between himself and the judge but argued there was not a substantial change in the court’s ruling; rather, it was a mere clarification. Odelia argued the email ruling left open the question of whether the court found she was disabled and also changed the beginning date of the spousal maintenance award. On April 24, 2019, the trial court signed its Final Decree of Divorce, containing the spousal maintenance provision described above.

Thereafter, on June 7, 2019, the trial court filed findings of fact and conclusions of law. The conclusions of law included the above-stated provision for spousal maintenance, with the exception of adding “or co-habitation” to the third contingency. The trial court made no findings or conclusions that specifically contain the words “disabled” or “disability” with reference to Odelia. Rather, the court made a more general finding that Odelia “will lack the ability to earn sufficient income to provide for [her] minimum reasonable needs on dissolution of the marriage.” The court further stated that, in determining the nature, amount, duration, and manner of payment of spousal maintenance, it had considered the “future earning potential of the parties” and the “ability of each party to meet their minimum reasonable needs.”

ANALYSIS

ISSUE ONE—MODIFICATION OF SPOUSAL MAINTENANCE ORDER

In her first issue, Odelia contends the October 18 email and attached memorandum constituted a rendition of judgment and the trial court erred because the Final Decree contained a provision that changed the start date and duration of spousal maintenance from that set forth in the email. We disagree.

Judgment is rendered when the trial court officially announces its decision in open court or by written memorandum filed with the clerk. Escobar v. Escobar, 711 S.W.2d 230, 232 (Tex. 1986).

*3 Citing Cook, 243 S.W.3d at 804, Odelia begins her argument by saying “[t]he entry of judgment goes through three stages: rendition, signing, and entry.” Odelia argues the judge rendered his ruling when he signed, dated, and filed the memorandum entitled “Property Division,” attached to his October 18 email which included the statement, “Daniel will pay $400 per month beginning Nov[ember] 1, 2018.” Because she considers this document to be the judgment rendered by the court, she contends the Final Decree of Divorce later entered is incorrect because it contains different terms. We disagree.

The October 18 email to which the “Property Division” memorandum was attached stated as follows:

Attached is a copy of property/debt division in Caudillo case. Since Daniel Caudillo filed divorce petition, Ben will prepare decree; provide copy to Terri and Megan for their review before e-filing. If anyone feels I left something out, let me know.

This language does not indicate the judge’s intent to render a final appealable order at the time he sent the email. In fact, the judge invited changes by asking the parties to notify him if he “left something out.” In the area of family law, this is a common practice, where many of the “details” contained in a final decree of divorce are not orally pronounced, and the trial judge often exercises discretion when fine-tuning his ruling prior to formal rendition. Further, the mere filing of that email and memorandum did not alter the judge’s intent or constitute the rendition of a ruling any more than the email itself did. The language of the email still indicated an intent to render a ruling at a later date, after the parties had reviewed the decree and had the opportunity to suggest changes or additions to the judge.

We also note Odelia’s argument that the judge changed his October 18 email “decision” from an indefinite spousal maintenance award to one that was limited to a period of seven years. Again, the mere fact that the email did not include the specific term of payments did not mean that the trial judge had rendered a decision that the spousal maintenance payments would continue indefinitely. Similar to the other details to be included in the final order, the term of payments was a detail that remained within the discretion of the trial judge.

As Odelia recognizes, a court may order maintenance to the spouse who is unable to earn sufficient income to provide for his or her minimum reasonable needs due to a physical or TEX. FAM. CODE ANN. § 8.054(b) (West Supp. 2019). While Odelia seems to take from this statute that the district court was required to order spousal maintenance for that entire period, the unambiguous language of the statute is discretionary in nature, setting forth that the court “may” make such an order. It does not say that the court “shall” or is otherwise mandated to order spousal maintenance for the entire period of disability.

Odelia also complains that the judge improperly took into account the spousal support she received under the temporary orders when he reduced her spousal support to a period of seven years in the Final Decree. As support for her argument, she lists the factors set forth in section 8.052 of the Family Code.

*4 Lastly, we address Odelia’s argument that the Final Decree of Divorce does not conform to the October 29 email because the decree states Daniel is to pay spousal maintenance for a period of seven years commencing November 1, 2018, whereas the October 29 email itself did not specify any term of duration and the email chain regarding clarification of the court’s order provided for “10 yrs but would start when payments started under temporary orders.” The de novo temporary orders provided that spousal maintenance was to commence on November 15, 2015. Taking into consideration the temporary spousal maintenance payments that had already accrued, the number of spousal maintenance payments was the same. Either way, Daniel was obligated to make the same spousal maintenance payment ($400 per month), for the same number of months (November 2015 through November 2025).¹ As such, we cannot find the district court abused its discretion here either. Accordingly, we resolve Odelia’s first issue against her.

ISSUE TWO—ELIGIBILITY FOR SPOUSAL MAINTENANCE

Via her second issue, Odelia contends the district court erred when it determined the duration of her spousal maintenance under § 8.054(a)(2)(A) (West Supp. 2019).

We review the trial court’s decision to award spousal maintenance under an abuse of discretion standard of review. Id.

The trial court may exercise its discretion to award spousal maintenance only if the party seeking maintenance meets specific statutory eligibility requirements. mental disability.”

*5 Once a trial court has determined that a spouse is eligible for spousal maintenance pursuant to Roberts, 531 S.W.3d at 228.

As fact finder, the trial court may reasonably infer an individual’s incapacity from circumstantial evidence or the competent testimony of a lay witness, including the testimony of the person seeking spousal maintenance. Smith v. Smith, 115 S.W.3d 303, 309 (Tex. App.—Corpus Christi 2003, no pet.)).

In the matter before us, Odelia told the court she began receiving social security disability the previous year. On appeal, her counsel discusses the difficulty of satisfying the burden to receive such benefits. Odelia testified before the district judge that “[t]here’s no way I can go back and get a job ... [b]ecause I’m disabled. I got osteoarthritis. I can’t do anything physical that much.” She further testified saying, “I can’t lift, crawl, climb stairs, stoop, bend or—everything.” She testified that if she tries to do these things, it is “painful, very painful.” While Odelia did not testify about any efforts to obtain employment of any kind or explain why her disability prevented her from doing any type of work, such evidence was unnecessary since Daniel testified he was aware Odelia was disabled and he did not otherwise contest that issue.

On appeal, Odelia contrasts Wiedenfeld v. Markgraf, 534 S.W.3d 14, 20 (Tex. App.—San Antonio 2017, pet. denied) to support her contention that the evidence she presented to the district court was sufficient to allow it to reasonably infer she was disabled. While we agree the court could have made such a finding, we do not agree it was required to make such a finding. Furthermore, even if the trial court determined Odelia was disabled, it was not required to order spousal support for an indefinite duration.

*6 In Galindo, the wife testified she was diagnosed with a “section 8.051(2)(A).” Id. at *3, 2014 Tex. App. LEXIS 3775, at *7. Odelia encourages this court to find that the evidence in this case is similar to that presented in Galindo and to find that the trial court erred in its award in the Final Decree of Divorce.

Odelia contrasts her case with that in Wiedenfeld is distinguishable from her case because the former husband provided controverting testimony about the former wife’s disability, whereas Daniel did not.

We agree with Odelia that she presented testimony somewhat similar to the testimony set forth in Galindo. Likewise, we agree that, unlike the former husband in Wiedenfeld, Odelia did not present any testimony concerning what efforts she had made to obtain any kind of employment and did not explain how or why her disability prohibited her from obtaining any type of gainful employment.

Considering the two cases cited to us by Odelia, and considering the record before us, we do not find the trial court abused its discretion. While we agree with Odelia that her testimony alone would have been sufficient to support a finding that she suffered from a disability, we do not agree with her position that the trial court was required to find she had such a disability. The trial court was free to determine the credibility of the witnesses and the weight to be given their testimony, and it was within its discretion to conclude Odelia was not disabled to the degree that she required indefinite spousal maintenance payments from Daniel. See Wiedenfeld, 534 S.W.3d at 19 (the trial court is the sole judge of the credibility of the witnesses and can believe or disbelieve any witness’s testimony).

*7 Odelia again contends the trial court erred when it substantially changed the decision disclosed in the October 18 email because all of the evidence presented at the final hearing was uncontroverted and supports a finding that she was disabled, making an award of spousal maintenance for an indefinite period of time proper. Again, Odelia’s argument presupposes that the October 18 email was the judge’s rendered ruling. As we discussed in our analysis of Odelia’s first issue, that is not the case. The trial judge was not required to find Odelia disabled, nor was he required to find that she was entitled to an award of spousal maintenance for an indefinite period of time even if she was. See O’Carolan v. Hopper, 414 S.W.3d 288, 308 (Tex. App.—Austin 2013, no pet.) (“Extended maintenance is discretionary under the statute, even if a spouse is permanently disabled.”) (citation omitted).

For these same reasons, we do not agree the judge erred by failing to include a finding that Odelia was disabled. Odelia argues, citing In re S.R.O., 143 S.W.3d 237, 243 (Tex. App.–Waco 2004, no pet.), that because the evidence supports a finding that she was disabled and because neither party notified the court that the finding on that element had been omitted, nor did they request a finding on that element, we must presume the trial court made a finding on that element in a way that supports its judgment.

While the Findings of Fact and Conclusions of Law do not expressly include a finding that contains the word “disability” or “disabled,” the findings do include one that says “Odelia Laurie Caudillo was married to Daniel Caudillo for ten (10) years or longer and will lack the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs on dissolution of the marriage.” This was among the factors considered and appears to include what the judge believed regarding Odelia’s disability and its effect on her ability to work.

Odelia argues that the judge “must have either abused his discretion in awarding maintenance for an indefinite period of time, or he implicitly found [Odelia] is disabled such that his order complies with Texas Family Code § 8.054(a)(2).” We have already determined the judge did not award spousal maintenance for an indefinite period of time because the October 18 email was not a rendition of the trial court’s ruling. And, we have already determined the judge included a finding that encompassed his conclusion regarding Odelia’s disability and there is no reason to conclude the judge abused his discretion in making that finding or in including the spousal maintenance award in the Final Decree of Divorce. Accordingly, we overrule Odelia’s second issue.

CONCLUSION

Having resolved each of Odelia’s issues against her, we affirm the Final Decree of Divorce of the trial court.

Footnotes
1	We acknowledge Odelia’s argument that Daniel did not actually pay the ordered temporary spousal maintenance in November 2015. Odelia filed a Motion for Enforcement after Daniel failed to make the payments. Daniel began making the payments on April 16, 2016. We do not find that the court abused its discretion in declining to alter the spousal maintenance award time period based on those events.

Court of Appeals of Texas, Amarillo.

Jones Energy Holdings, LLC, Appellants

v.

PIMA OIL & GAS, L.L.C., Appellee

No. 07-17-00456-CV

|

April 14, 2020

On Appeal from the 31st District Court, Hemphill County, Texas, Trial Court No. 7263; Honorable Steven R. Emmert, Presiding

Attorneys & Firms

Courtney D. Miller, Fort Worth, for Appellee.

M. Chase Hales, Amarillo, for Appellants.

Before PARKER, JJ.

OPINION ON REHEARING

Patrick A. Pirtle, Justice

*1 Pending before this court is Appellee’s Motion for Rehearing, wherein Pima Oil & Gas, L.L.C. contends, in part, that this court should revise its prior opinion so as to not render judgment specifically determining what production intervals are excluded from the scope of Pima’s over-riding royalty interest. Remaining convinced as to our prior disposition of the contract construction issue but agreeing with Pima that our prior opinion may have decided issues upon which there are disputed questions of fact, we withdraw our prior opinion¹ and substitute the following opinion, reversing and rendering in part and reversing and remanding in part.

INTRODUCTION

This is a contract construction case involving the interpretation of an Assignment of Overriding Royalty Interest, dated June 9, 1999, recorded in Volume 508, Page 146, of the Public Records of Hemphill County, between Spring Resources, Inc., as assignor, and Pima Oil & Gas, L.L.C., as assignee. Pima filed suit against Jones Energy, Inc. and Jones Energy Holdings, L.L.C., Appellants herein, alleging that Jones Energy, Inc., as operator of the Gracie 117-1H well (a horizontal well), had failed to properly account to Pima for its overriding royalty interest (“ORRI”) acquired by virtue of that assignment. Following presentation of cross motions for summary judgment, the trial court ruled that (1) Pima’s ORRI burdens production (unrestricted) from the Gracie 117-1H well, (2) the “exception language” found in the assignment, upon which Jones based its counter claims, was limited to the vertical wellbores of the Wright 117 Unit well(s) referenced in the assignment (i.e., the exception did not apply to production from the Gracie 117-1H wellbore), (3) Jones breached the assignment by failing to pay Pima overriding royalties on production from the Gracie 117-1H wellbore, and (4) Pima recover judgment against Jones for unpaid overriding royalties in the sum of $103,845.11, prejudgment interest in the sum of $7,840.87, attorney’s fees of $140,000.00, conditional appellate attorney’s fees of $100,000.00, plus post-judgment interest at the rate of five percent per annum. By two issues, divided into seven subparts, Jones Energy, Inc. contends the trial court erred by (1) granting Pima’s motion for summary judgment and (2) denying its motion for summary judgment. We agree.

BACKGROUND

On September 9, 1980, Grace H. Hill, individually and as Executrix of the Estate of Charles H. Wright, deceased, as lessor, executed an oil and gas lease in favor of Moody Energy Company, as lessee, covering Section 117, Block 41, H&TC Ry. Co. Survey, Hemphill County, Texas. That lease was recorded at Volume 171, Page 55, of the Public Records of Hemphill County, Texas. On October 1, 1991, Grace H. Hill, individually and as Executrix of the Estate of Charles H. Wright, deceased, as lessor, executed an oil and gas lease in favor of John T. Wright, as lessee, covering the southwest quarter of Section 117, Block 41, H&TC Ry. Co. Survey, Hemphill County, Texas. The October 1991 lease was recorded at Volume 319, Page 184, of the Public Records of Hemphill County, Texas.

*2 Spring acquired its interest in Section 117 by virtue of an assignment recorded on March 31, 1998, recorded at Volume 476, Page 33, of the Public Records of Hemphill County, Texas. At the time of Spring’s acquisition of interest, the only producing wellbores on Section 117 were the Gracie 117-1 and the Charles H. Wright 117-1.

Prior to Spring acquiring its interest in Section 117, Pima and Spring had entered into a Retainer Agreement whereby Pima agreed to conduct geologic evaluations on acquisition opportunities as requested by Spring for purposes of identifying proven undeveloped locations, behind pipe zones, and other drilling opportunities. In exchange, Spring agreed to assign Pima an ORRI. At the time of the execution of this Retainer Agreement, the Charles H. Wright 1-117 well, a vertical well, was producing from the A interval of the Granite Wash formation in the southwest quarter of Section 117. By March 1998, also prior to the execution of the Retainer Agreement, a second vertical well, the Gracie 117-1, was producing from multiple intervals in the Big Timber Creed Douglas Sand formation in the northwest quarter of Section 117.

In accordance with the terms of the Retainer Agreement, Pima was entitled to an ORRI in Section 117. That ORRI interest was assigned to Pima by virtue of the Assignment of Overriding Royalty Interest described above. The override assigned was a “2.50% Overriding Royalty Interest (ORRI) in and to all of Assignors right, title, and interest in the lease(s) described on Exhibit ‘A’ ... and to future production from any drilling and/or spacing units contained in and/or described as all or a portion thereof of Section 117, Block 41, H&TC Survey, Hemphill County, Texas (the Unit) or proportionately calculated if the spacing unit covers acreage outside the referenced Section, Block, and Survey.”

The assignment further stated:

The assigned ORRI shall extend to and burden the interest of Assignor, its successors and assigns, in 1) the Wright 117 unit well(s) producing on the lands described above at the time of acquisition by the Assignor, save and except the intervals of the formation(s) open to production in, and only in, the wellbore of the aforementioned well(s) and 2) any additional leases or interest in leases acquired by Assignor, its successors or assigns covering the Unit or the Leases.

(Emphasis added.)

The “lease(s) described on Exhibit ‘A’ ” provided as follows:

WRIGHT 117 UNIT (GRACIE #1-117)
ALL OF SECTION 117, BLK 41, H&TC SURVEY, HEMPHILL COUNTY, TEXAS
SAVE AND EXCEPT ALL RIGHTS ABOVE THE GRANITE WASH (11,000’)
IN THE SW/4, CONTAINING 640 ACRES, MORE OR LESS
LESSOR:	Grace H. Hill, Individually and as Executrix of the Estate of Charles H. Wright, Deceased
LESSEE:	Moody Energy Company
LEASE DATE:	September 9, 1980
RECORDING DATA:	Volume 171, Page 55
DESCRIPTION:	All of Section 117, BLK 41, H&TC RR Co. Survey, Hemphill County, Texas

In July of 2011, subsequent to the execution of the Retainer Agreement and the Assignment of Overriding Royalty Interest, a new horizontal wellbore was spudded. This wellbore, the Gracie 117-1H, extended through and was completed in the Granite Wash formation underlying the west half of Section 117. It is the production from this horizontal wellbore that forms the basis of Pima’s claim that it is entitled to additional compensation as an ORRI.

*3 On August 21, 2015, based on its interpretation of the Assignment, Pima notified Jones Energy, Inc. of its claimed interest in production from the Gracie 117-1H well and it demanded payment of overriding royalties allegedly due and owing. When payment was not made, this suit followed. By its claims, Pima sought a declaratory judgment that (1) its ORRI burdened production from the Gracie 117-1H and (2) the counterclaims of Jones Energy, Inc. were invalid. Pima also sought a declaration that the “exception language” found in the assignment was limited to the two vertical wells that were in existence at the time the parties entered into their agreement.

On the other hand, Jones Energy, Inc. took the position that Pima was not entitled to an ORRI because the Gracie 117-1H well was producing from the A interval of the Granite Wash formation—an interval excluded by the terms of the assignment since it was the same interval from which the Charles H. Wright 117-1 well was already producing. Jones Energy, Inc. further alleged that Pima’s interpretation of the assignment was contrary to the title opinions issued in 2008 and 2012, by two different attorneys.

In other words, Jones Energy, Inc. contended that production from the horizontal wellbore was excluded from the assignment by virtue of the save and except provision in the assignment; whereas, Pima asserted its claim on the basis that, at the time of the acquisition of its assignment interest, the horizontal wellbore in question was not “open to production” from the Gracie 117-1 vertical wellbore and, therefore, it was not excluded. The distinguishing factor between the respective positions being whether the parties to the assignment intended to exclude production from a particular interval of a formation or production from a particular wellbore.

On November 19, 2015, Pima filed its original petition seeking a declaratory judgment as to its rights under the Assignment. Pima also sought recovery of ORRI payments it claims were due and unpaid. Thereafter, in December 2016, Pima filed its Partial Motion for Traditional Summary Judgment alleging that it was entitled to an ORRI, by virtue of the Assignment, in the lease under which Jones operates the Gracie 117-1H well. Pima claimed that because there were no disputed fact issues it was entitled to a partial summary judgment based upon an interpretation, as a matter of law, of the unambiguous language in the Assignment. On February 9, 2017, Jones filed its response which included affidavits from (1) Bryan Garner, (2) Joel R. Hogue, (3) John Irwin, and (4) Shane Brooks. Pima objected to the consideration of those affidavits on the basis that they were being offered solely for the purpose of supporting an interpretation of certain documents, a matter irrelevant in a proceeding where no party was contending that the documents were ambiguous. In March 2017, Jones responded to Pima’s motion by filing its own Motion for Partial Summary Judgment. Subsequently, the trial court granted Pima’s motion to exclude the opinion testimony of Garner, Hogue, Irwin, and Brooks. It then granted Pima’s motion for a partial summary judgment, while at the same time denying Jones’s motion for a partial summary judgment. The judgment was subsequently made final and this appeal followed.

STANDARD OF REVIEW

We review a trial court’s ruling on a motion for summary judgment on the basis of a de novo review. Am. Zurich Ins. Co. v. Barker Roofing, L.P., 387 S.W.3d 54, 60 (Tex. App.—Amarillo 2012, no pet.).

*4 When, as here, both parties move for summary judgment, each party bears the burden of establishing that it is entitled to judgment as a matter of law. Texas Workers’ Compensation Comm’n v. Patient Advocates of Texas, 136 S.W.3d 643, 648 (Tex. 2004)). In order to succeed, however, a party must prevail on the strength of its own motion and not on the weakness of the opposing motion.

APPLICABLE LAW

The construction of an unambiguous instrument, such as the Assignment of Overriding Royalty Interest involved in this case, is a question of law for the trial court. Fox v. Thoreson, 398 S.W.2d 88, 92 (Tex. 1966)).

Furthermore, we must examine the entire instrument and attempt to harmonize all of its parts, even if different parts of the same instrument appear contradictory or inconsistent. Fox, 398 S.W.2d at 92).

ANALYSIS

Within the rubric of its two basic issues ((1) that the trial court erred in granting Pima’s motion for summary judgment and (2) that the trial court erred in denying Jones’s motion for summary judgment), Jones breaks its arguments into seven subparts. We will address those subparts in a logical rather than sequential manner.

By its seventh subpart (subpart G), Jones posits the trial court erred in sustaining Pima’s evidentiary objections to the affidavits of Garner, Hogue, Irwin, Brooks, and Denise Percival. In analyzing this subpart, we are mindful that an appellate court should review a trial court’s decision to admit or exclude summary judgment evidence under an abuse of discretion standard. Van Adrichem v. Agstar Fin. Servs., FLCA, No. 07-13-00432-CV, 2015 WL 7164135, at *1, 2015 Tex. App. LEXIS 11734, at *3 (Tex. App.—Amarillo 2015, no pet.) (mem. op.). In initially ruling on Pima’s objections, the trial court stated that it was striking the affidavits “insofar as such testimony relates to construction of the subject contract provisions.”² Because the construction of an unambiguous instrument is a matter of law determination, upon which another’s opinion would not be binding, we cannot say that the trial court acted unreasonably in sustaining Pima’s objections to affidavits designed only to assist the trial court in its construction of such an instrument. As such, Jones’s subpart G is overruled.

*5 By subparts A, B, C, and D, Jones contends the trial court erred in finding Pima’s ORRI burdened production from the horizontal wellbore designated as the Gracie 1-117H well, while not finding the contrary. In that regard, Jones contends the Retainer Agreement supports its interpretation (i.e., that production from the Gracie 1-117H well was excluded from the ORRI by the “save and except” clause contained in the Assignment) because it contains controlling contractual language clarifying the intent of the parties. In support of its argument, Jones relies upon an examination of the Assignment to argue that paragraph (7) reveals that the parties agreed that the Retainer Agreement would control over the Assignment. Paragraph (7) provides as follows:

This Assignment is subject to that certain unrecorded Retainer Agreement dated December 9, 1997, by and between Assignor and Assignee and the obligations under same are superior to and free and clear of any mortgages, production payments, overrides or other encumbrances of any kind or nature created by Assignor after Assignor acquired the Leases.

(Emphasis added).

Therefore, because the ORRI is subject to the provisions of the Retainer Agreement, Jones contends Pima’s right to an ORRI is limited by paragraph K of that agreement which provides, “[o]n all currently existing Spring acreage where Pima identifies a drilling prospect or heretofore unidentified behind pipe opportunity, Pima will also be assigned an ORRI or CWI [Carried Working Interest], exclusive of producing zone(s) in the wellbore(s) of the then existing wells....” (Emphasis added). In other words, Jones contends that by virtue of the exclusion provision Pima is not entitled to an ORRI on production from any zone³ that was already producing when the Retainer Agreement entered into. Jones further contends that proper grammatical interpretation of the Retainer Agreement supports its interpretation of the ORRI assigned to Pima. According to Jones, a proper grammatical interpretation of the Retainer Agreement indicates that the exclusion provision excluded zones, not wells, and that the phrase “in the wellbore(s)” was nothing more than a prepositional phrase modifying the noun zone. As such, Jones effectively argues it is “producing intervals of a formation” being excluded from the ORRI, not wells or wellbores, and that the Assignment’s reference to wellbores is merely the means by which the excluded producing intervals were identified. We agree.

The subordinating language contained in paragraph 7 of the Assignment makes it clear that in the event of a conflict between the two documents, the Retainer Agreement would control. In that regard, as it concerns the nature of the property interest being exchanged by Spring for services to be rendered by Pima, the Retainer Agreement provides as follows:

On properties acquired by Spring through acquisition of producing properties as described in Paragraph I, Pima will be assigned an ORRI or CWI on any properties where Pima has identified PUD’s, BP zones, or other drilling opportunities (ideas), exclusive of producing zone(s) in the wellbore(s) of the then existing wells, according to the above Table and Paragraph K.

(Emphasis added).

In this sentence, the noun zone is the object of and is introduced by the modifying phrase exclusive of. The phrase in the wellbore(s) is a prepositional phrase functioning as a modifier of the phrase producing zone(s). Therefore, according to this paragraph of the Retainer Agreement, Pima’s right to an ORRI excluded zones (intervals) that were being produced by the then existing wells. Conversely, the trial court erred in finding that the “exception language” found in the Assignment did not apply to production from the horizontal well designated the Gracie 1-117H, to the extent, if any, such production was from an interval being produced from the then existing wells. As such, subparts A, B, C, and D are sustained.

*6 By subpart E, Jones contends the trial court erred in finding that it breached the Assignment by failing to pay Pima the ORRI due. Because we have found the trial court erred in finding that an ORRI was owed on production from the Gracie 117-1H wellbore, without determining whether such production was from an interval already being produced from the existing wells, we likewise find that the trial court erred in finding a breach of that agreement based on a failure to pay. Subpart E is sustained.

Finally, by subpart F, Jones contends the trial court erred in awarding attorney’s fees, interest, and costs of court to Pima. Again, because we have found the trial court erred in finding that an ORRI was owed to Pima based upon production from the Gracie 117-1H horizontal wellbore, as opposed to production from an interval not being produced from the then existing wells, we find the trial court erred in awarding a monetary recovery in favor of Pima. Subpart F is sustained.

Based on the above and foregoing, we sustain Jones’s two issues—finding the trial court erred in granting Pima’s motion for summary judgment and in denying Jones’s motion for summary judgment.

CONCLUSION

We reverse the judgment of the trial court and render judgment declaring that the ORRI granted to Pima by the Assignment of Overriding Royalty Interest, dated June 9, 1999, recorded in Volume 508, Page 146, of the Public Records of Hemphill County, Texas, extends to and burdens the interest of Spring Resources, Inc., its successors and assigns, in the “Wright 117 unit well(s)” producing on the lands described therein, at the time of acquisition by Spring Resources, Inc., “save and except the intervals of the formation(s) open to production in, and only in, the wellbore of the aforementioned well(s)” any additional leases or interest in leases acquired by Assignor, its successors or assigns covering that Unit or the Leases. We further remand this proceeding to the trial court for a determination of the intervals of the formations that were open to production in the wellbore of the Wright 117 unit well(s), at the time Spring Resource, Inc. acquired its interest. To the extent that the trial court’s earlier ruling precluded a determination of whether any of the production from the Gracie 1-117H well was, at the time Spring Resource, Inc. acquired its interest, coming from an interval that was open to production in the wellbore of the existing Wright 117 unit wells, we remand this matter to the trial court for further proceedings consistent with this opinion. Subject to any further proceedings and rulings by the trial court, we also render a “take nothing” judgment in favor of Jones on Pima’s action for monetary relief.

Footnotes
1	See Jones Energy, Inc. and Jones Energy Holdings, L.L.C. v. Pima Oil & Gas, L.L.C., ––– S.W.3d ––––, 2020 WL 1869024 (Tex. App.—Amarillo, no pet. h.).
2	The trial court later struck the affidavits in their entirety.
3	The parties have failed to argue a distinction between the terms “intervals of the formation(s),” as used in the Assignment of Overriding Royalty Interest, and “zone(s),” as used in the Retainer Agreement. To the extent that there is a conflict in meaning between those terms, we will defer to the term “interval of the formation,” unless otherwise inappropriate, since it is the Assignment of Overriding Royalty Interest which is being construed.

Court of Appeals of Texas, Amarillo.

Isabel DE LA HOYA MORENO, et al., Appellants

v.

K-BAR TEXAS ELECTRIC, INC., Appellee

No. 07-18-00377-CV

|

March 10, 2020

On Appeal from the 286th District Court, Hockley County, Texas, Trial Court No. 15-04-24209; Honorable Pat Phelan, Presiding

Attorneys & Firms

Robert S. Hogan, Lubbock, Audie Reese, for Appellants.

Eliott V. Nixon, Lubbock, for Appellee.

Before PARKER, JJ.

MEMORANDUM OPINION

Patrick A. Pirtle, Justice

*1 Appellants, the surviving spouse and children of Anthony Moreno, filed suit against Anthony’s employer, Appellee, K-Bar Texas Electric, Inc., after Anthony died while performing work for K-Bar. Appellants alleged Anthony’s death resulted from K-Bar’s gross negligence. K-Bar filed a motion for summary judgment and, following a hearing on the motion, the trial court entered an order granting that motion. Via a single issue, Appellants challenge that order through this appeal. We affirm.

BACKGROUND

In October 2014, Sundown ISD hired K-Bar to replace fifteen light poles on the playground at one of its schools. On the day of Anthony’s death, employees of K-Bar were attempting to loosen or “break” the anchor bolts on the concrete bases of the light poles to determine whether the bolts could be removed or whether it would be necessary to remove the entire base. According to employee deposition testimony, this work did not involve or require contact with any electrical wiring or components.

Another K-Bar employee, the on-site supervisor, Andy Austin, was trying to loosen a bolt on one of the light poles. Andy was able to loosen the first bolt but had trouble with the second because it had become frozen due to age and oxidation. Anthony leaned over to help Andy with the wrench. Anthony got on his knees and leaned to push on the wrench. As he did so, he fell toward the pole and, upon contact, was electrocuted.

It is undisputed that, for purpose of the Texas Workers’ Compensation Act, K-Bar was a workers’ compensation subscriber at all times relevant to this litigation. See 419.007 (West 2015 and West Supp. 2019). As such, the exclusive remedy provision of the Act applied and the only remedy available for the death of an employee, other than statutory workers’ compensation benefits, was a civil proceeding for the recovery of exemplary damages. Id. at § 408.001(a), (b) (West Supp. 2019). Accordingly, Anthony’s family filed a wrongful death suit against K-Bar, alleging Anthony’s death was caused by the gross negligence of the company.

K-Bar filed a motion for summary judgment under both the traditional and no-evidence provisions,¹ arguing it was not grossly negligent because K-Bar did not have actual, subjective awareness of the risk involved, i.e., an energized light pole, and that it did not proceed with conscious indifference to the rights, safety, or welfare of Anthony or others. After a hearing, the trial court granted K-Bar’s motion disposing of all claims. The order of the trial court did not specify the basis for its ruling.² This appeal followed.

ANALYSIS

STANDARD OF REVIEW

*2 We employ a de novo review of a trial court’s ruling on a motion for summary judgment. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Where, as here, a party files both a no-evidence and traditional motion for summary judgment, the reviewing court must first consider the no-evidence motion. Ford Motor Co. v. Ridgway, 135 S.W.3d 589, 600 (Tex. 2004).

In our review of a no-evidence summary judgment motion, we apply the same legal sufficiency standard of review we would apply following a conventional trial on the merits. See Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App.—San Antonio 2000, no pet.) (citations omitted).

Applying the traditional legal sufficiency standard of review, a no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Mack Trucks, Inc., 206 S.W.3d at 582.

Because the order granting summary judgment in this matter did not specify the grounds on which the trial court relied, we must affirm the judgment if any of the theories raised in K-Bar’s motions for summary judgment are meritorious. Reynosa, 21 S.W.3d at 513 (citation omitted).

APPLICABLE LAW

As stated above, it is undisputed that K-Bar was, at all relevant times, a subscriber under the Texas Workers’ Compensation Act. It is also undisputed that Anthony was an employee of K-Bar at the time of his death and that his death occurred in the course and scope of his employment. Consequently, the exclusive remedy provision contained in the Texas Labor Code applies to this suit. See TEX. CIV. PRAC. & REM. CODE ANN. § 41.003 (West 2015) (providing standards for recovery of exemplary damages).

*3 The test for gross negligence contains two components, one objective and one subjective. Lee Lewis Construction, Inc. v. Harrison, 70 S.W.3d 778, 785 (Tex. 2001). Gross negligence is defined by statute as an act or omission:

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

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

TEX. CIV. PRAC. & REM. CODE ANN. § 41.001 (West Supp. 2019).

Under this definition, the “actor” is the party to be held responsible—in this case, K-Bar. In evaluating the sufficiency of the evidence to establish gross negligence pursuant to this standard, circumstantial evidence is sufficient to prove either component. Agrium U.S., Inc. v. Clark, 179 S.W.3d 765, 767 (Tex. App.—Amarillo 2005, pet. denied).

APPLICATION

A. NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT

Considering K-Bar’s no-evidence motion for summary judgment first, that motion alleged there was no evidence K-Bar acted with gross negligence towards Anthony. Therefore, by our review, we are required to determine whether Appellants produced at least a scintilla of probative evidence raising a genuine issue of material fact establishing that K-Bar’s act or omission (1) objectively from the standpoint of K-Bar, at the time of its occurrence, involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others and (2) K-Bar had actual, subjective awareness of the risk involved (i.e., that the light pole was electrified or that someone loosening the bolts on the pole might be electrocuted) but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.

In its motion, K-Bar asserted there was no evidence that it acted with gross negligence because: (1) from K-Bar’s objective standpoint, the job of loosening the bolts did not involve an extreme degree of risk because no electrical work was being performed at the time; (2) it did not have actual, subjective awareness of the risk involved because it was unaware of any faulty wiring; and, (3) it did not proceed with conscious indifference to the rights, safety, or welfare of others because it believed it was proceeding as a reasonable and prudent electrical contractor would under the same or similar circumstances. In their response, Appellants contended they raised a genuine issue of material fact concerning K-Bar’s gross negligence and in support of that contention they point to several depositions, OSHA standards, and the affidavit and report of their expert. Appellants contend K-Bar was grossly negligent by allowing its employees to work on light poles without following required OSHA standards and safety protocols, including de-energizing the light poles prior to beginning any work on them. Appellants also argue that while K-Bar claimed its employees were not performing electrical work that day, its on-site supervisor testified in his deposition that they brought the company crane to the site in the event it was “possible” to remove the light poles that day, an act that would be considered electrical work. The nature and scope of the work to be performed that day having been raised, Appellants contend the evidence was sufficient to create a genuine issue of material fact as to K-Bar’s gross negligence, thereby defeating its no-evidence motion for summary judgment.

*4 Appellants note that Andy’s deposition testimony established he was aware, prior to the accident, that electrical energy posed a high degree of risk of serious bodily injury or harm and he was aware of the importance of doing a hazard or safety assessment prior to beginning electrical work. They also pointed to his testimony that he made a conscious decision not to perform a hazard assessment the day of Anthony’s death. They also focused on the testimony of the president of K-Bar, Donnie Barry, in which he testified Andy was responsible for determining whether the job could be performed safely and to ensure it was actually performed safely. Appellants relied too on the testimony of K-Bar’s expert during which he said someone performing electrical work must be willing to anticipate defects and take the equipment as it is found at the time that they go to work on it.

Citing U-Haul Int’l, Inc. v. Waldrip, Appellants contend the Texas Supreme Court has found that subjective awareness of extreme risk does not require the defendant to know of a specific threat posed by a particular instrumentality in order to satisfy the subjective component of gross negligence. See U-Haul Int’l, Inc., 380 S.W.3d at 137.

Despite Appellants’ arguments, we cannot say there is any evidence K-Bar had an actual awareness of a risk that the light pole was improperly electrified when it permitted Anthony to assist Andy in loosening the bolts that day. The record shows that the light pole on which Anthony was working that day was improperly energized due to initial improper installation and later improper modification and repair, none of which was performed by K-Bar, that allowed a live current to come in contact with the frame of the light pole itself. The evidence showed that when Anthony was electrocuted, he was assisting Andy in attempting to loosen a bolt. Nothing about what Andy or Anthony was doing indicated K-Bar was intending to remove the light poles at that time. For that matter, nothing they were doing was considered to be electrical work which would have required electrical standards and safety protocols to be followed. Andy’s testimony that the employees might have removed the light poles that day if “possible” only indicates the possibility that, at some future time, K-Bar employees might have been doing electrical work requiring adherence to the standards and protocols cited by Appellants. Stating the obvious, Andy testified he would not have touched the light pole first if he thought there was any danger of his being electrocuted. Andy’s testimony makes it clear. At the time of the accident, K-Bar was aware of the general inherent danger of working with electricity, but not aware of any electrical danger inherent in the performance of loosening bolts in preparation for the removal of light poles.

The testimony of Appellants’ own expert also illustrates K-Bar’s lack of actual subjective awareness of the state of the light pole in question. During the deposition of Appellants’ expert, he was asked, “You don’t know of any evidence that would show K-Bar management knew that the pole was energized before the accident, correct?” He answered, “The pole itself, no.” Appellants’ expert also said he did “not recall [any K-Bar employee] stating that they knew [the pole] was energized.” And, the expert could not think of any other evidence that showed K-Bar actually knew the pole was energized. In fact, logical circumstantial evidence dictates that Sundown ISD would not have knowingly allowed an energized light pole to exist on one of its playgrounds or that K-Bar employees would have knowingly engaged an electrified metal pole and, therefore, it is highly probable that the pole was somehow energized during the process of loosening the frozen bolts. “[A] party cannot be liable for gross negligence when it actually and subjectively believes that circumstances pose no risk to the injured party, even if they are wrong.” U-Haul Int’l, Inc., 380 S.W.3d at 141. As such, none of the summary judgment evidence established K-Bar’s subjective knowledge that the light pole in question was improperly energized or otherwise presented an extreme degree of risk, considering the probability and magnitude of the potential harm to others.

*5 Counsel for Appellants argued at oral submission that this case is similar to that presented in oxygen concentrator near the patient’s bed. Id. The court based its finding that there was more than a scintilla of evidence showing awareness of the risk of fire based on testimony from a physician that oxygen-fed fires were a well-known risk and that the Veterans Administration had created guidelines to help medical providers and caregivers manage that risk. Id. The court also found there was more than a scintilla of evidence that the appellee and doctor were subjectively aware of the fire risk but nevertheless proceeded treating this particular patient without properly addressing that risk. Id. Also, one witness had testified that the risk of an oxygen fire was a “real possibility.” Id. Another doctor testified he “had had at least one patient die under similar circumstances.” Id. Another witness testified the treatment was improper under the circumstances and that there were alternative treatments that the appellee and doctor failed to consider. Id.

We do not find the facts in that case to have any similarity to the record before us. While there is evidence supporting K-Bar’s knowledge of the general risk of electrocution inherent in working with electricity and the related standards and protocols to be utilized when performing electrical work, there is no evidence of a well-known risk of electrocution when loosening bolts on the base of a light pole or any evidence of K-Bar’s subjective awareness of the risk of electrocution in performing that particular task. No one testified that any other employee had died under similar circumstances or that electrocution in these circumstances had ever occurred or was a “real possibility.” Nor do we find any comparable testimony or evidence in the record before us that K-Bar consciously proceeded with its course of conduct notwithstanding a present appreciation of the risks. Consequently, we disagree with Appellants’ assessment that the facts in Mason are analogous to those before us or that its precedent is applicable.

Because there is no evidence that K-Bar was subjectively aware of the danger, we find also there is no evidence that K-Bar “nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others.” As a result, we conclude that Appellants failed to raise a genuine issue of material fact as to an essential element of Appellants’ cause of action—i.e., K-Bar’s gross negligence. Consequently, the trial court did not err in granting K-Bar’s no-evidence motion for summary judgment.

Because we have found the trial court did not err in granting K-Bar’s no-evidence motion for summary judgment and because we must affirm the judgment if any of the theories raised in K-Bar’s motion for summary judgment are meritorious, we pretermit consideration of Appellants’ issue as to K-Bar’s traditional motion for summary judgment. See TEX. R. APP. P. 47.1. Appellants’ single issue is overruled.

CONCLUSION

We affirm the order of the trial court.

Footnotes
1	See TEX. R. CIV. P. 166a(i) (no-evidence motion for summary judgment).
2	The order provides, “On this 13th day of September, 2018, the Court reviewed Defendant’s Motion for Summary Judgment and Reply and Plaintiff’s Response, heard arguments of counsel. It appearing no fact question exists, the motion should be granted. It IS THEREFORE ORDERED that Defendant’s Motion for Summary Judgment is GRANTED.”
3	That provision provides as follows: (a) Recovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ compensation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained by the employee. (b) This section does not prohibit the recovery of exemplary damages by the surviving spouse or heirs of the body of a deceased employee whose death was caused by an intentional act or omission of the employer or by the employer’s gross negligence. (c) In this section, “gross negligence” has the meaning assigned by Section 41.001, Civil Practice and Remedies Code. (d) A determination under Section 406.032, 409.002, or 409.004 that a work-related injury is noncompensable does not adversely affect the exclusive remedy provisions under Subsection (a).

Court of Appeals of Texas, Amarillo.

Patricia STEEN, Individually and as Next Friend of B.S., a Minor, Appellant

v.

TEXAS MUTUAL INSURANCE COMPANY, Appellee

No. 07-18-00054-CV

|

August 29, 2019

On Appeal from the 99th District Court, Lubbock County, Texas, Trial Court No. 2016-521,658, Honorable William C. Sowder, Presiding

Attorneys & Firms

Mary Barrow Nichols, Shannon Simmons Pounds, for Texas Mutual Insurance Company

Matthew E. Ritchie, for Patricia Steen

Before PIRTLE, JJ.

MEMORANDUM OPINION

James T. Campbell, Justice

*1 In this workers’ compensation case concerning course and scope of employment, appellant Patricia Steen, individually and as next friend of the minor, B.S., appeals the trial court’s judgment denying benefits for the death of her husband, Bill C. Steen. At the time of his death Steen was an employee of Caprock Construction, LLC whose workers’ compensation carrier was appellee Texas Mutual Insurance Company. We will overrule Mrs. Steen’s three issues and affirm the judgment of the trial court.

Factual and Procedural Background

On February 23, 2015, Chuck Dorrity was the owner of Caprock, a “dirt contracting” company doing oil field work. It employed Steen as a motor-grader operator. Caprock assigned Steen a company pickup truck which he used for “both work and personal reasons.” Although Dorrity and Steen lived in Lubbock, Caprock’s office was in Greenwood, Texas, outside Midland. Evidence showed Dorrity did not go to the Greenwood office daily and generally did not require Caprock employees to do so either if a job was not in progress.

The evidence shows that on February 23 roadways in the Lubbock-Midland area were icy. At approximately 8:00 a.m. that day Steen was driving southbound in the company vehicle on State Highway 137 in Martin County, north of Stanton. He was accompanied by a friend, Dustin Hansen, who was also from Lubbock. Steen encountered an icy patch of pavement and lost control of the vehicle, which left the highway and rolled over. Steen died of his resulting injuries. Hansen sustained injuries but recovered.

After Texas Mutual denied Mrs. Steen’s claim for worker’s compensation death benefits, a hearing officer for the Texas Department of Insurance–Division of Workers’ Compensation found that Steen was not in the course and scope of employment at the time of his death. The decision was affirmed by the appeals panel without opinion. Mrs. Steen then challenged the adverse administrative decision by filing a petition for judicial review in district court. After a hearing the district court rendered judgment affirming the Department’s determination.

Analysis

By her first and second issues Mrs. Steen challenges the legal and factual sufficiency of the evidence supporting the trial court’s determination that Steen did not sustain a compensable injury resulting in his death. The compensability issue this appeal presents is whether Steen was acting in the course and scope of his employment at the time of his death.

Mrs. Steen’s contention her husband was acting in the course and scope of employment when the accident occurred is based primarily on Hansen’s testimony that he believed he and Steen were traveling to meet Dorrity for an interview for Hansen’s possible employment by Caprock. In support of its judgment, the trial court issued findings of fact which included the following:

Billy Steen, Deceased (hereinafter “Decedent”), was employed by Caprock Construction as a motor grader operator on February 23, 2015.

In late February 2015, Caprock Construction’s business was down and the company did not have any jobs.

*2 Dorrity was not hiring any new employees in February 2015, and if he needed to hire a new employee in February 2015, he already knew of people looking for a job.

In February 2015, Decedent asked Dorrity to talk to a friend of Decedent’s, Dustin Hansen, who was a blade operator. As a courtesy to Decedent, Dorrity agreed to talk to Hansen at some unspecified time in the future, but also informed Decedent that he already had an employee with Hansen’s skills, he did not need anyone else, and he was not planning on hiring anyone else.

Dorrity did not set up a specific time or place to interview Hansen.

The employer’s office is in Greenwood, Texas. Dorrity did not go to the Greenwood office on a daily basis and did not expect employees to go in to the office when there were no jobs going on.

On February 23, 2015, Dorrity did not plan to be at the Greenwood office but was staying in Lubbock.

Dorrity had no plans to interview Hansen on February 23, 2015.

Decedent died as a result of a motor vehicle accident which took place on February 23, 2015. His passenger, Dustin Hansen, survived.

Decedent’s job duties did not include locating potential employees or arranging interviews with potential employees. Transporting a potential employee to an interview with the employer was not part of Decedent’s job duties nor was it a condition of his employment.

Dorrity did not ask Decedent to arrange an interview with Hansen nor did he ask Decedent [to] bring Hansen to meet him for an interview.

At the time of the accident, Decedent drove a Ford F-350 truck owned by Caprock Construction. He used the truck for both business and personal reasons.

From our review of the record, we conclude the court’s findings are supported by Dorrity’s testimony or undisputed evidence, and Mrs. Steen does not challenge any specific finding the court made.

Following a bench trial, a court’s findings are reviewed according to the legal and factual sufficiency standards by which jury findings are measured. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (describing factual sufficiency standard of review).

The Texas Workers’ Compensation Act provides employee compensation when injuries “ ‘arise[ ] out of and in the course and scope of employment for which compensation is payable.’ ” TEX. LAB. CODE § 401.011(10) (defining “compensable injury”)).

The Labor Code’s definition of ‘course and scope of employment’ states, in pertinent part, that the phrase means:

an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:

(A) transportation to and from the place of employment unless:

*3 (i) the transportation is furnished as a part of the contract of employment or is paid for by the employer;

(ii) the means of the transportation are under the control of the employer; or

(iii) the employee is directed in the employee’s employment to proceed from one place to another place ....;

TEX. LAB. CODE ANN. § 401.011(12) (West 2015).

To come within the general definition of course and scope of employment an injury must both (1) relate to or originate in, and (2) occur in the furtherance of the employer’s business. Deatherage v. International Ins. Co., 615 S.W.2d 181, 182 (Tex. 1981).

The court found, and it is undisputed, that Caprock provided Steen a company vehicle and permitted both work-related and personal use of the vehicle. Transportation to and from the place of employment generally is excluded from the course and scope of employment. Leordeanu v. American Protection Ins. Co., 330 S.W.3d 239, 249 (Tex. 2010).

Even if the exception of Zurich Am. Ins. Co. v. McVey, 339 S.W.3d 724, 729 (Tex. App.—Austin 2011, pet. denied) (same).

Hansen testified that in a February conversation Dorrity “said for me to come down to Big Lake with Bill and he would talk to me about work but nothing was promised.” He agreed on the day of the accident he and Steen “set out to travel to Caprock’s place of business,” and their purpose was “[t]o see if [Dorrity] was going to hire me as a finish blade operator.” As the trial court’s findings express, however, Caprock’s office was not in Big Lake but in Greenwood. At trial Texas Mutual argued the evidence did not establish where Steen and Hansen were traveling at the time of their accident. The court did not make a finding concerning their destination. That the trial court rejected Hansen’s version of the events, however, is evident from its findings, consistent with Dorrity’s testimony, that Dorrity did not set up a specific time or place to interview Hansen, and that Dorrity did not plan to be at the Greenwood office that day, but was staying in Lubbock.

*4 Even were the evidence to show that Steen’s death occurred while he was traveling under a mistaken impression his friend Hansen would meet with Dorrity on their arrival at Big Lake, or Greenwood, we could not agree the record establishes that Steen’s travel had to do with and originated in the work of his employer. Driving to and from work ordinarily is not an activity originating in the work of the employer because “[t]he risks to which employees are exposed while traveling to and from work are shared by society as a whole and do not arise as a result of the work of employers.” Rose, 795 S.W.2d at 214 (“When an injury occurs while an employee is traveling pursuant to the express or implied requirements of the employment contract, which requires him to subject himself to travel risks, the injuries are deemed to grow out of the employment and are considered to be incurred in the course of employment”). Mrs. Steen’s evidence, by contrast, showed her husband was traveling from Lubbock, where they lived. More significantly, however, the trial court’s findings preclude any contention on appeal that Steen’s carriage of Hansen was an essential part of Steen’s employment. Its findings include those that Caprock’s business was down and it had no jobs at the time; Dorrity did not expect his employees to go in to their Greenwood office when there were no jobs going on; and that transporting a potential employee to an interview was not part of Steen’s job duties nor a condition of his employment. Any contention Steen was engaged in a “special mission” is likewise foreclosed in this court by the finding Dorrity did not ask Steen to arrange an interview with Hansen “nor did he ask Steen [to] bring Hansen to meet him for an interview.”¹

The evidence supporting the trial court’s conclusion that at the time of the February 23 accident Steen’s fatal injury did not originate in his employer’s work, trade, or profession is supported by more than a scintilla of evidence and is not so against the great weight and preponderance of the evidence to be manifestly unjust. Mrs. Steen’s first and second issues are overruled.

By her third issue, Mrs. Steen contends the trial court erred in failing to render a division order for payment of her attorney’s fees. “An insurance carrier shall pay death benefits to the legal beneficiary if a compensable injury to the employee results in death.” TEX. LAB. CODE ANN. § 408.221(b) (West 2015).

The trial court affirmed the Department’s denial of Mrs. Steen’s request for death benefits and we have overruled her issues challenging that determination. Because Steen did not sustain a compensable injury there was no claimant’s recovery. Because there was no claimant’s recovery, attorney’s fees were properly denied. Mrs. Steen’s third issue is overruled.

Conclusion

Having overruled Mrs. Steen’s three issues on appeal, we affirm the judgment of the trial court.

Footnotes
1	The meaning of the term “special mission” is not defined by McVey, 339 S.W.3d at 730.

Court of Appeals of Texas, Amarillo.

Anthony D. COLBY, Appellant

v.

GRAPHIC ARTS MUTUAL INSURANCE COMPANY a/k/a Utica National Insurance Company, Appellee

No. 07-17-00138-CV

|

September 11, 2018

On Appeal from the 345th District Court, Travis County, Texas¹, Trial Court No. D-1-GN-16-004015, Honorable Tim Sulak, Presiding

Attorneys & Firms

Anthony D. Colby, pro se.

Michael Phillips, for Graphic Arts Mutual Insurance Company a/k/a Utica National Insurance Company.

Before PARKER, JJ.

MEMORANDUM OPINION

Judy C. Parker, Justice

*1 In the present appeal, we are called upon to determine whether appellant, Anthony D. Colby, exhausted administrative remedies required as a precondition to his bringing suit on his workers’ compensation claims in district court. Finding that he failed to exhaust the required administrative remedies on the claims he asserts, we affirm the trial court’s grant of a plea to the jurisdiction in favor of appellee, Graphic Arts Mutual Insurance Company a/k/a Utica National Insurance Company (Utica).

Factual and Procedural Background

In 2009, Colby sustained an on-the-job injury while working for Onion Creek Club. He reported the injury to his employer, who was covered by a workers’ compensation insurance policy through Utica. Colby’s medical condition was diagnosed as a cervical sprain or strain and was determined to be compensable under the workers’ compensation policy with Utica. Income benefits were paid and medical treatment was provided for Colby’s injury in compliance with the Texas Workers’ Compensation Act.

After a dispute arose regarding the extent of the compensable injury, Colby requested the Division of Workers’ Compensation (DWC) to appoint a designated doctor to address the proper extent of the injury. Colby disputed the qualifications of the doctor that had previously served as his designated doctor. Because this doctor was no longer certified to be a designated doctor, the DWC found good cause for Colby’s complaint and appointed another designated doctor. After two more designated doctors were appointed but then subsequently removed, the DWC appointed Dr. Lisa Persyn as designated doctor in Colby’s case. However, Utica disputed Persyn’s appointment and requested an expedited contested case hearing. Following this hearing, the DWC Hearing Officer issued her Decision and Order concluding that Persyn was not properly appointed designated doctor and cancelling this appointment. Colby timely appealed this determination to the DWC Appeals Panel. The Appeals Panel issued a notice that the Hearing Officer’s Decision and Order was upheld and constituted the final DWC determination. Following enclosed instructions, Colby filed the instant suit in district court.

By his original petition, Colby asserts claims for Utica’s denial of medical treatment, improper claims handling, and violations of Colby’s civil rights. Colby makes a passing reference to the designated doctor issue in the “Facts” section of his petition but he does not directly challenge the DWC’s decision to remove Persyn as designated doctor, even though this was the only issue that was decided by the DWC. By his petition, Colby seeks injunctive relief requiring Utica “to provide medical and other benefits to which [Colby] is entitled”; compensatory damages for pain and suffering, mental anguish, and physical impairment; and exemplary damages. Utica answered contending, inter alia, that Colby’s claims of denials of medical treatment, improper claims handling, and breaches of the duty of good faith and fair dealing must be processed through the DWC’s administrative system before they can be asserted in district court and that such a failure to exhaust administrative remedies is jurisdictional.

*2 Subsequently, Utica filed a motion for summary judgment that, inter alia, claims that Colby failed to show that he had exhausted administrative remedies before pursuing his claims in district court. Colby responded explaining that he had been notified by the DWC that, if he was dissatisfied with the decision of the Appeals Panel, he could file suit with the district court within forty-five days of the date of the Appeals Panel’s decision. He contends that, because he complied with DWC requirements to bring suit, he has exhausted administrative remedies and Utica’s motion for summary judgment should be denied. However, Colby makes only passing reference to the DWC’s removal of Persyn as designated doctor in his petition. And, nowhere in his petition does Colby expressly identify a DWC order being appealed from, a DWC cause number, or an Appeals Panel decision number.

Before ruling on Utica’s summary judgment motion, the trial court afforded Colby an opportunity to amend his pleadings. In his amended pleadings, Colby again asserts claims for medical treatment, yet in this pleading he requests that the trial court order Utica to pay Colby the cost of medical procedures “upfront” in order to ensure quality medical treatment. Colby prays that the trial court “reverse the [DWC] appeals panel decision” but he provides no argument to identify any basis upon which to conclude that the DWC Hearing Officer or Appeals Panel erred. Colby also filed a second amended pleading that he asks the trial court to consider separately from his DWC appeal. In this amendment, Colby asserts his claims for “Civil Rights/Discrimination Violation.” Notably, nowhere does Colby identify any basis for the trial court’s jurisdiction over civil rights claims asserted by an individual against an insurance carrier.

Approximately a week after Colby filed his amended pleadings, the trial court granted Utica’s motion for summary judgment but expressly ruled that Colby’s “claims as pled in his Original Petition are dismissed.” Uncertain whether the trial court’s summary judgment ruling disposed of all of Colby’s pending claims, Utica filed a Plea to the Jurisdiction and Motion to Dismiss. By this motion, Utica again contends that Colby failed to exhaust administrative remedies available from the DWC before pursuing judicial review in the district courts. Colby responded yet again stating that he had presented a case to the DWC and, therefore, had exhausted administrative remedies. The trial court issued its order granting Utica’s plea to the jurisdiction and motion to dismiss on February 24, 2017. Colby timely appealed from this order.²

Law

A trial court has jurisdiction to award damages only to the extent that relief is not dependent upon the direct or indirect adjudication of a matter within the DWC’s exclusive jurisdiction. O’Neal v. Ector County Indep. Sch. Dist., 251 S.W.3d 50, 51 (Tex. 2008) (per curiam) ).

*3 A plea to the jurisdiction challenging exhaustion of administrative remedies under the workers’ compensation scheme can rest on the pleadings, or on evidence. Id. When the plea challenges the pleadings, we must determine whether the pleader has alleged facts that affirmatively demonstrate the court’s jurisdiction to hear the case. Id. In conducting this review, we must look to the allegations in the pleadings, liberally construe them in the plaintiff’s favor, and look to the pleader’s intent. Id. If the pleadings fail to allege sufficient facts to affirmatively demonstrate the trial court’s jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the plaintiff should be afforded the opportunity to amend. Id. at 660-61.

“The Workers’ Compensation Act vests the power to award compensation benefits solely in the [DWC], subject to judicial review.” Id. at 451.

When an agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking judicial review of the agency’s action. TEX. LABOR CODE ANN. § 410.302(b) (West 2015).

Analysis

Initially, we note that Colby’s petition does not expressly identify a DWC order being appealed from, a DWC cause number, or an Appeals Panel decision number. At best, Colby references a DWC Hearing Officer’s Decision and Order and a subsequent notice issued by the Appeals Panel that the Decision and Order was upheld and became final. This Decision and Order identifies the issue as whether Persyn was properly appointed as designated doctor. However, Colby’s petition asserts claims for Utica’s denial of medical treatment, improper claims handling, and violations of Colby’s civil rights. Clearly, these claims were not addressed by the DWC’s resolution of the propriety of the appointment of Persyn as designated doctor. Consequently, as a direct appeal for judicial review of a DWC decision, Colby’s petition is deficient. Further, Colby’s petition seeks damages for pain and suffering, mental anguish, physical impairment, as well as exemplary damages, but does not request a modification or set aside of any DWC order.³

*4 The DWC has been granted exclusive jurisdiction over Colby’s claims. Colby asserts claims for Utica’s denial of medical treatment, but DWC has been granted exclusive jurisdiction over this area. See 42 U.S.C.S. § 1983 (affords action for deprivation of Constitutional rights against state actors). Consequently, we conclude that Colby has not exhausted administrative remedies as to any of his claims for which such exhaustion is required and he has not identified any basis for the trial court’s exercise of jurisdiction over his civil rights claims.

As to the designated doctor issue on which Colby appears to have exhausted administrative remedies, Colby’s argument is that the originally appointed designated doctor is not qualified and is no longer authorized to be appointed as a designated doctor by the DWC. However, this argument was not the issue for which administrative remedies were exhausted. The DWC Hearing Officer’s Decision and Order identifies the disputed issue as: “Was Lisa Persyn, properly appointed the designated doctor in accordance with TEX. LABOR CODE ANN § 408.0041 pursuant to Rule § 127.130?” It is clear that the propriety of Persyn’s appointment as designated doctor was all that was being decided at this hearing. In fact, in response to argument presented by Colby, the Hearing Officer specifically stated that whether the original designated doctor remained qualified to serve as designated doctor “is irrelevant at this point ....” The issue that was addressed by the DWC was simply whether Persyn was properly appointed in compliance with the applicable rules and regulations of the DWC. Thus, the designated doctor claim asserted by Colby does not comport with the issue presented to the DWC.

Conclusion

Having concluded that Colby did not exhaust administrative remedies before asserting his present claims in district court, we affirm the trial court’s grant of Utica’s plea to the jurisdiction and motion to dismiss.

Footnotes
1	Originally appealed to the Third Court of Appeals, this appeal was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. R. APP. P. 41.3.
2	Colby’s notice of appeal seeks appeal from the trial court’s “final judgement entered on February 24, 2017, granting Defendant[’s] Motion for Summary Judgement ....” We note that the dispositive ruling of the trial court that was entered on February 24, 2017, is an order granting Utica’s plea to the jurisdiction and motion to dismiss. By contrast, the trial court granted Utica’s motion for summary judgment by order dated January 11, 2017. Because Utica raised the same grounds in its plea to the jurisdiction that it had previously raised in its motion for summary judgment and as Colby appealed the trial court’s February 24, 2017 ruling, we will limit our review to the propriety of the trial court’s grant of Utica’s plea.
3	It appears that Colby believes that his exhaustion of administrative remedies as to any issue entitles him to judicial review of all issues that he has with Utica. However, the law provides that judicial review of issues over which DWC has exclusive jurisdiction is limited to those issues expressly decided by the Appeals Panel. TEX. LABOR CODE ANN. § 410.302(b).

Court of Appeals of Texas, Amarillo.

Ronald WINEGARDNER, Appellant

v.

STATE OFFICE OF RISK MANAGEMENT, State of Texas, and Texas Department of Criminal Justice, Appellees

No. 07-18-00109-CV

|

June 25, 2018

On Appeal from the 69th District Court, Moore County, Texas, Trial Court No. 17-34, Honorable Ron E. Enns, Presiding

Attorneys & Firms

Scott Higginbotham, for Appellee The State of Texas.

Red Tripp, for Appellee State Office of Risk Management.

Rodney Ruiz, for Appellee Texas Department of Criminal Justice.

Ronald Winegardner, for Appellant.

Before PARKER, JJ.

MEMORANDUM OPINION

Per Curiam

*1 Appellant, Ronald Winegardner, appeals the trial court’s order granting summary judgment in favor of appellee State Office of Risk Management (“SORM”). We dismiss the appeal for want of jurisdiction.

Winegardner sued appellees, the Texas Department of Criminal Justice, the State of Texas, and SORM, seeking judicial review of a final decision issued by a Texas Workers’ Compensation Commission appeals panel. See 107. Only SORM answered the suit. SORM later filed a no-evidence and traditional motion for summary judgment. The trial court signed an order granting SORM’s motion on February 16, 2018. This appeal followed.

We have jurisdiction to hear an appeal from a final judgment or from an interlocutory order made immediately appealable by statute. See Lehmann, 39 S.W.3d at 200-04.

The trial court’s order granting SORM’s motion for summary judgment did not address Winegardner’s claims against the TDCJ or the State, nor did it expressly state that it disposed of all parties and claims. By letter of May 23, 2018, we notified Winegardner and SORM that it did not appear a final judgment or appealable order had been issued by the trial court and directed them to show how we have jurisdiction over the appeal. Both parties filed responses. Winegardner’s did not address the finality of the order in his letter to the Court. SORM, in its letter, took the position the order was not a final judgment.

We agree with SORM that the order granting its motion for summary judgment is not a final judgment, but rather an interlocutory order. See Id. at 354.

Accordingly, we dismiss the appeal for want of jurisdiction without prejudice to its refiling after a final judgment is entered. TEX. R. APP. P. 42.3(a). Winegardner’s motion for an extension of time to file appellant’s brief is dismissed as moot.

Court of Appeals of Texas, Amarillo.

Charles BROWN, Appellant

v.

WACO TRANSIT SYSTEM, Appellee

No. 07–16–00258–CV

|

October 27, 2017

|

Rehearing Denied December 12, 2017

On Appeal from the 170th District Court, McLennan County, Texas, Trial Court No. 2013–1026–4, Honorable Jim Meyer, Presiding

Attorneys & Firms

Brandon R. Oates, for Waco Transit System

Eric D. Nielsen, William Robertson, for Charles Brown

Before PARKER, JJ.

MEMORANDUM OPINION

James T. Campbell, Justice

*1 Appellant Charles Brown appeals a trial court order sustaining the plea to the jurisdiction filed by appellee Waco Transit System, Inc. (WTSI) and dismissing his personal-injury lawsuit for want of subject-matter jurisdiction. Finding WTSI did not conclusively demonstrate that it shares the governmental immunity enjoyed by the City of Waco, we reverse and remand.

Background

Brown sued WTSI alleging he suffered personal injuries while riding a bus operated by WTSI and driven by its employee, Leon Matthews, Jr. According to Brown’s petition, on June 1, 2011, as Matthews operated bus number four, a rear “overhead door panel” fell open. Matthews stopped the bus and “attempt[ed] to secure the overhead door.” Later that day Brown boarded bus number four and took a seat under the overhead door. During Brown’s ride the door fell open, striking him on the head and causing injury.

Brown alleged WTSI negligently operated bus number four in the following ways:

a. Operating a Waco Transit System bus that had a known defect which constituted a dangerous condition to the safety of the bus passengers.

b. Failing to take proper action to secure the broken overhead door panel and to protect the safety of passengers sitting in the area of the broken and defective overhead door panel;

c. Allowing bus passengers to sit directly under the broken and defective overhead door panel with knowledge that the overhead door panel had already fallen open.

d. Continuing to operate Bus No. 4 with knowledge that hitting a bump in the road would likely cause the defective rear overhead door panel to suddenly fall open and strike a passenger sitting below the panel door.

e. Operating the Waco Transit System bus in such a way that an ordinary prudent person would have under the same or similar circumstances in the operation and use of a motor-driven vehicle such that Defendant’s employee would be personally liable to Plaintiff under Texas law.

f. Failing to exercise that degree of care that would be exercised by a very cautious and prudent person under the same or similar circumstances in the operation and use of a motor-driven vehicle such that Defendant’s employee would be personally liable to Plaintiff under Texas law.

According to Brown’s petition, WTSI is “a for-profit corporation doing business in the State of Texas.” Elsewhere in the pleading Brown alleges that WTSI is a governmental unit. WTSI filed a plea to the jurisdiction, however, alleging it is immune from suit under governmental immunity because it is the “agent” of the City of Waco. According to WTSI, its relationship with the City, and implicitly its entitlement to share the City’s immunity, is established by its contract with the City. It attached a copy of its written contract to its amended plea to the jurisdiction.

In relevant part the contract provides:

WHEREAS, the City [of Waco] has entered into a contract with McDonald Transit Associates, Inc. to manage the motor bus transit system (“MBTS”) conducted in and about the City of Waco (“the McDonald Transit Contract”);

*2 WHEREAS, WTSI will continue to be the employer of the transit system employees; and

WHEREAS, there is a need to set out the responsibilities of the parties in connection with their roles regarding the motor bus transit system in and about the City of Waco;

* * *

Subject to the terms and conditions set forth in this Agreement, City hereby engages WTSI, and as agent for City for the limited purpose of operating the MBTS conducted in and about the City of Waco and WTSI hereby accepts such engagement.

* * *

WTSI shall: ... Be the employer of the transit system employees and employ and provide the drivers, mechanics, and such other personnel as necessary to fully operate and maintain the MBTS. WTSI employees shall not for any purpose be considered to be employees of City, and WTSI shall be solely responsible for their supervision and daily direction and control and for personnel decisions relating to WTSI’s employees. ...

* * *

[WTSI shall] Operate the transit system and cooperate with the City and McDonald Transit in order that the City and McDonald Transit can fulfill their respective responsibilities under the McDonald Transit Contract.

[WTSI shall] Maintain all vehicles, and equipment provided by the City in accordance with all applicable federal and state safety standards and all recommended Manufacturers’ standards for maintenance and repair.

* * *

[WTSI shall] Provide all other services necessary to operate and maintain the [bus system] and the property and equipment provided by the City[.]

* * *

In consideration for the services provided by WTSI hereunder:

The City agrees to provide such funds as may be necessary to meet payroll and all other approved budgeted expenses of the operation of the MBTS as set forth in the City’s annual budget.

The City agrees to provide all office, office furniture, motor buses, equipment, materials, supplies, rolling stock, bus maintenance and storage facilities and equipment, fueling stations and equipment and automobile transportation which may be required for the operation of the MBTS. Title to all such property shall be and remain in the City of Waco.

The City shall also provide major maintenance for the transit office and maintenance facility.

The City will provide accounting, purchasing and cash management assistance to WTSI in connection with its performance of services. However, WTSI will be solely responsible for its required corporate filings and reporting, federal and state payroll tax reporting, preparation and distribution of W–2s for employees and l099s for independent contractors, and required maintenance of payroll records.

* * *

City agrees to obtain or caused to be obtained general liability coverage, automobile liability coverage, errors and omissions coverage, and workers compensation coverage for WTSI through an insurance company(ies) or a risk pool of governmental entities in amounts as may be determined by the City from time to time.

The trial court sustained WTSI’s plea to the jurisdiction and dismissed Brown’s suit for want of jurisdiction. He appeals.

Analysis

On appeal Brown argues the trial court erred in sustaining WTSI’s plea to the jurisdiction because he alleged acts of negligence coming within the Texas Tort Claims Act’s limited waiver of immunity. See (2) (West 2011). We first consider, however, whether WTSI sufficiently proved to the trial court its entitlement to assert governmental immunity. WTSI claims immunity from suit by virtue of its status as the City’s agent. In its plea to the jurisdiction it sought to establish that status through its contract with the City.

*3 A plea to the jurisdiction is a dilatory plea that seeks dismissal of a case for lack of subject-matter jurisdiction. Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004).

The trial court’s order sustaining WTSI’s plea states that in reaching its decision it considered evidence. And WTSI filed its contract with the City in support of its immunity claim. “When a plea to the jurisdiction challenges the existence of facts alleged by the pleader to establish the trial court’s subject-matter jurisdiction, the trial court must consider relevant evidence submitted by the parties.” City of Waco v. Kirwan, 298 S.W.3d 618, 622 (Tex. 2009).

Governmental immunity protects political subdivisions of the State from lawsuits and liability for money damages. See Univ. of Tex. Health Sci. Ctr. v. Rios, 507 S.W.3d 312, 315 (Tex. App.–Houston [1st Dist.] 2016, pet. granted) (“If immunity applies, the trial court lacks subject-matter jurisdiction over the case”).

We begin by inquiring whether WTSI is entitled to derivatively assert the City’s governmental immunity from suit. See Nettles v. GTECH Corp., No. 05-15-01559-CV, 2017 WL 3097627, 2017 Tex. App. LEXIS 6850 (Tex. App.–Dallas July 21, 2017, no pet. h.) (mem. op.) (analyzing question of derivative immunity of state-agency contractor and considering evidence). If it is so entitled, we will then consider Brown’s claim that immunity was waived. If it is not, our analysis will end because the record otherwise provides no indication that the trial court lacked subject-matter jurisdiction over Brown’s suit.

A private entity generally is not entitled to claim governmental immunity unless “ ‘its actions were actions of’ the government, ‘executed subject to the control of’ the governmental entity.” Brown & Gay, 461 S.W.3d at 130 (Hecht, C.J., concurring) (distinguishing independent contractor who acts “as the government” from one who acts only “for the government”).

*4 Whether a private entity contracting with a governmental unit should derivatively share governmental immunity chiefly comes down to whether the contractor or agent acted as the government without discretion. Brown & Gay, 461 S.W.3d at 125 n.9).

Right of control may be established by a contractual provision that explicitly assigns the right of control or, in the absence of such contractual agreement, by evidence of how the work was performed. Weidner v. Sanchez, 14 S.W.3d 353, 373 (Tex. App.–Houston [14th Dist.] 2000, no pet.).

Brown’s suit alleged his injury was caused by WTSI’s negligent operation or use of bus number four and by a condition or use of the bus as tangible personal property. WTSI’s ability to assert the City’s governmental immunity depends on proof its actions were those of the City, and it exercised no discretion in its activities. See Bay, Inc. v. Ramos, 139 S.W.3d 322, 328 (Tex. App.–San Antonio 2004, pet. denied) (finding contractor had no immunity where it had considerable discretion in placing barricades in an area of road construction where a motor vehicle accident occurred).

*5 While Brown alleged in conclusory fashion that WTSI is a “government unit,” WTSI’s contract with the City does not support the allegation. We find that WTSI failed to show conclusively it was entitled to assert the City’s governmental immunity.

Conclusion

Because WTSI did not meet its plea-to-the-jurisdiction burden of showing its entitlement to assert the City’s governmental immunity, it is unnecessary for us to consider whether Brown alleged any acts of negligence coming within a Tort Claims Act waiver. The record does not prove the trial court lacked subject-matter jurisdiction over Brown’s suit. We reverse the dismissal order, render an order denying WTSI’s plea to the jurisdiction, and remand the case to the trial court.

Footnotes
1	The role of McDonald Transit Associates, Inc. is not further described in the City of Waco–WTSI contract.