Opinion
No. 05-09-01190-CV
Opinion issued March 31, 2011.
On Appeal from the 199th Judicial District Court, Collin County, Texas, Trial Court Cause No. 199-1549-07.
Before Justices MORRIS, FRANCIS, and MURPHY.
MEMORANDUM OPINION
Brian Angove Smale appeals the trial court's judgment dismissing his lawsuit. In three issues, Smale claims the trial court erred when it dismissed his claims without issuing a final order that either granted or denied all relief requested, denied him a jury trial, and dismissed his case for lack of jurisdiction. We affirm.
In February 2006, Smale was hired as a senior IT auditor by a subsidiary of Torchmark. Following a February 1, 2007 audit meeting, Smale submitted three risk observations regarding a HIPAA security issue, the Sarbanes-Oxley Act, and the efficiency of audit time reporting methods. The following day, Smale was terminated. One month later, Smale filed a claim for sex discrimination and retaliation with the Texas Workforce Commission and the EEOC. In May 2007, Smale filed his original petition in district court, alleging causes of action for age and sex discrimination and retaliation. The trial court granted Torchmark's motion to compel arbitration based on an agreement to arbitrate claims arising out of Smale's employment. While the matter was in arbitration, Smale amended his claim to include a cause of action for violations of HIPAA.
In February 2008, Smale filed a Sarbanes-Oxley complaint with the Department of Labor. One week later, the arbitrator granted Torchmark's motion for summary judgment and dismissed Smale's discrimination, retaliation, and HIPAA claims. The trial court was not asked to take further action at this time.
In July 2008, the Department of Labor dismissed Smale's Sarbanes-Oxley complaint on the ground it was untimely filed, that is, it was filed later than 90 days after the date on which the violation occurred or after the date on which Smale became aware of the violation. Smale appealed the decision to an Administrative Law Judge, arguing the statute of limitations on his Sarbanes-Oxley complaint should have been tolled because Torchmark concealed the true reason for his firing and Smale did not discover it until after the filing deadline for a Sarbanes-Oxley claim had passed.
At the time Smale filed his Sarbanes-Oxley complaint, the statute allowed a party to seek relief if the claim was filed no later than 90 days after the date of the violation. The current statute allows a claim to be filed no later then 180 days after the date on which the violation occurs. 18 U.S.C.A. § 1514A(b)(2)(D) (2010). Smale's claim was untimely filed under both statutes.
In October 2008, the ALJ granted Torchmark's motion for summary decision and dismissed Smale's Sarbanes-Oxley complaint as untimely filed. In doing so, the ALJ assumed Smale's allegations that Torchmark concealed the reasons for his firing were true but found they nevertheless did not constitute "actively misleading him as to the cause of action" and, therefore, the time for filing such a claim was not tolled. Smale appealed the ALJ's decision to the Administrative Review Board. Neither Smale nor Torchmark has apprised this Court of a ruling by the ARB.
On July 15, 2009, Smale filed a motion to reinstate the district court case, seeking to add a cause of action for "fraud by omission." The trial court reopened the case to allow Smale's filing. Under Smale's theory, he claims Torchmark fired him after he submitted three risk observations but the company failed to inform him which risk observation was the reason for his firing. Smale contends this failure to inform constitutes fraud by omission. Torchmark answered and filed, among other things, a motion to dismiss. After submission, the court coordinator sent a letter, dated October 5, 2009, notifying Smale the trial court had dismissed his lawsuit.
The trial court made findings of fact and conclusions of law. The findings of fact are that (1) Smale's fraud by omission claim is based on his allegation he was actively misled by a lawyer for Torchmark, Phillip Jones, about the reasons for his February 2007 firing; (2) Smale's brief to the ARB alleged he did not become aware that his allegedly protected activity (the submission of the risk observation relating to the Sarbanes-Oxley Act) was a contributing factor to his termination until he received an affidavit of a Torchmark employee in connection with the arbitration of his district court claims; (3) Smale's fraud by omission claim alleges the same set of facts and seeks the same damages as were presented in his Sarbanes-Oxley complaint filed with the Department of Labor and pending before the ARB; (4) Smale contends the proximate cause of his failure to timely file a Sarbanes-Oxley claim was Torchmark's alleged fraud by omission; (5) Smales's fraud by omission claim is directly related and central to his Sarbanes-Oxley claim pending before the ARB; and (6) Smale is pursuing his fraud by omission claim in two different venues: the district court and the ARB.
The trial court also filed conclusions of law, including (1) it did not have jurisdiction over claims for violation of the Sarbanes-Oxley Act; (2) the Department of Labor and federal district courts have exclusive jurisdiction over claims brought under the Sarbanes-Oxley Act; (3) when a state court lacks jurisdiction over a claim because another court or agency has exclusive jurisdiction, dismissal of the state claim is proper; (4) because Smale's fraud by omission claim is part of and directly involved with the Sarbanes-Oxley Act claim pending before the ARB, the state district court did not have jurisdiction; and (5) Smale's fraud by omission claim is also subject to dismissal in favor of the first-filed action pending before the ARB.
In his third issue, Smale claims the trial court abused its discretion by dismissing his lawsuit for lack of jurisdiction. Although Smale claims the trial court had jurisdiction over his lawsuit because it was a fraud by omission claim, the trial court concluded Smale's claim was part of and directly involved with his Sarbanes-Oxley claim pending before the ARB. We review the trial court's conclusions of law de novo. See BMC Software Belgium, N.V.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We have reviewed the trial court's conclusions of law de novo as well as the entire record and agree with the trial court's conclusions; Smale's fraud by omission claim is part of and directly involved with his Sarbannes-Oxley claim. In fact, it is the tolling argument he asserted to the ALJ; it is not an independent cause of action.
In his motion to reinstate, Smale asked the trial court to take judicial notice that Smale's "Federal Sarbanes-Oxley . . . Whistleblower complaint and appeal are not within the subject matter of this State of Texas District Court." The trial court concluded his fraud by omission claim was the same cause of action as his Sarbanes-Oxley claim and dismissed the lawsuit. Smale may not ask the trial court to take judicial notice and, on appeal, complain the trial court did what he asked. See Naguib v. Naguib, 137 S.W.3d 367, 375 (Tex. App.-Dallas 2004, pet. denied) (party to lawsuit cannot ask something of trial court and then complain on appeal that trial court committed error in granting that party's request).
Furthermore, we note the trial court's judgment states only that the lawsuit is dismissed. In the conclusions of law, the court stated two reasons for the dismissal: (1) because the fraud by omission claim was part of and directly involved with the Sarbanes-Oxley Act claim pending before the ARB, the state district court did not have jurisdiction, and (2) Smale's fraud by omission claim was subject to dismissal in favor of the first-filed action pending before the ARB. When the trial court does not specify the basis for its ruling, it is an appellant's burden on appeal to show each independent ground or basis asserted in support of the judgment is insufficient to support judgment. Nationwide Prop. Cas. Ins. Co. v. McFarland, 887 S.W.2d 487, 496 (Tex. App.-Dallas 1994, writ den'd). Although Smale contended the trial court erred in dismissing his lawsuit for want of jurisdiction, he did not address whether his claim was subject to dismissal in favor of the first-filed action pending with the ARB. Smale's failure to challenge the propriety of the dismissal under this ground waives error, if any. Id. (appellate court may not reverse on unassigned error; appellant failed to challenge propriety of award on alternative basis); see Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970). Under these circumstances, we cannot conclude the trial court erred in dismissing Smale's lawsuit. We overrule Smale's third issue.
In light of our disposition of his third issue, we conclude we need not address Smale's second issue (that the trial court abused its discretion by denying his request for a jury trial). See Tex. R. App. P. 47.1.
In his first issue, Smale claims the trial court erred by dismissing his case and not issuing a final order explicitly denying or granting all requested relief. At the time Smale filed his brief, the trial court had not signed a final order disposing of Smale's lawsuit. In a letter dated June 28, 2010, this Court questioned our jurisdiction over the appeal because the clerk's record did not have a copy of the trial court's judgment or other appealable order. Although the record contained a copy of the letter on the judge's letterhead stating the judge had dismissed the lawsuit, we noted the letter was signed by the court coordinator, not the judge. On August 4, 2010, the trial court signed an order dismissing Smale's lawsuit and disposing of all parties and claims. The order was filed in a supplemental clerk's record with this Court on August 9, 2010. Because the appellate record contains the trial court's order dismissing Smale's case, we conclude his first issue is moot. We overrule his first issue.
We affirm the trial court's judgment.