Opinion
No. 04-08-00107-CV
Delivered and Filed: April 1, 2009.
Appealed from the 37th Judicial District Court, Bexar County, Texas, Trial Court No. 2001-CI-17102, Honorable David A. Berchelmann, Jr., Judge Presiding.
Reversed and Remanded.
Sitting: CATHERINE STONE, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
OPINION
In this workers' compensation case, the State Office of Risk Management appeals the trial court's pre-trial directed verdict in favor of Edna A. Martinez, an employee of the Texas Department of Protective and Regulatory Services. We reverse the judgment of the trial court and remand for further proceedings.
Factual and Procedural Background
Martinez, a child protective services caseworker employed by the Texas Department of Protective and Regulatory Services, fell while at home on Saturday, June 9, 2001, sustaining injuries to her head, neck, and left shoulder. Martinez immediately sought emergency room treatment at a local hospital. The following Monday, Martinez reported her injury to her supervisor and filed a claim for workers' compensation on the basis that her injury occurred "while she was working on generic service plans in the kitchen area" at home. When Martinez later submitted her time to her supervisor for approval, he told her that the hours for June 9, 2001 would not be approved and that her workers' compensation claim would be denied because she did not have prior approval to work at home. Subsequently, the State Office of Risk Management denied compensability for Martinez on the ground that she did not sustain the injury in the course and scope of employment. An informal dispute resolution proceeding and a contested case hearing ensued. The contested case hearing officer found that Martinez had authority to work at home at the time of the accident, but concluded the injury was not compensable because the accident did not involve an instrumentality inherent to the employment. Martinez appealed. The appeals panel agreed with Martinez and concluded that she was acting in the course and scope of her employment by furthering the business affairs of her employer at the time of her injury at home and that there existed a causal connection between the employment and her injuries.
The Texas Workers Compensation Act provides an administrative process for parties to resolve disputed issues. The first step is a benefit review conference. Tex. Lab. Code Ann. §§ 410.021, 410.023, 410.024 (Vernon 2006). If issues remain between the parties after the benefit review conference, the parties proceed to a contested case hearing. Id. § 410.151 (Vernon 2006).
A party has fifteen days to appeal the decision of the contested case hearing officer to the division appeals panel. Id. § 410.202(a) (Vernon 2006).
The State Office of Risk Management then initiated this suit for judicial review. Prior to trial, Martinez filed both a traditional and no-evidence motion for summary judgment; both were denied. On the day the parties appeared for trial on the merits, Martinez filed a motion for "pre-trial" directed verdict and argued it was timely because: (1) the State Office of Risk Management's only basis for denying that Martinez was acting in the course and scope of her employment at the time she was injured, i.e., that she did not have permission to work at home, was irrelevant as a matter of law; and (2) the evidence conclusively established that the State Office of Risk Management was untimely in contesting compensability, thereby waiving that defense. After a hearing on the issues, the trial court granted the directed verdict on all grounds prior to any evidence being heard. The State Office of Risk Management now appeals, arguing that the trial court erred in granting the pre-trial motion for directed verdict on the aforementioned two grounds. In one issue on cross-appeal, Martinez asserts that the trial court erred in denying her no-evidence and traditional motions for summary judgment.
Once the appeals panel issues its ruling, the parties have forty days to file a request for review in district court. Id. § 410.252(a) (Vernon 2006).
Martinez also filed a motion in limine seeking to preclude all testimony about whether Martinez did or did not have permission to work at home at the time she was injured because such testimony was not relevant to course and scope. The trial court appeared inclined to grant the motion in limine, but no actual ruling was ever made.
Analysis
The State Office of Risk Management first argues it was procedurally improper for the trial court to grant Martinez's motion for pre-trial directed verdict before it had an opportunity to present evidence. We agree that "[o]rdinarily, a directed verdict should not be granted against a party before the party has had a full opportunity to present its case and has rested." Tana Oil Gas Corp. v. McCall, 104 S.W.3d 80, 82 (Tex. 2003). In fact, it is generally reversible error for the trial court to direct a verdict without allowing the plaintiff to present all of its evidence. See Wedgeworth v. Kirskey, 985 S.W.2d 115, 116 (Tex.App. 1998, pet. denied). The Texas Supreme Court has also held, however, that in limited circumstances a procedural error in granting a directed verdict before the close of evidence may not require reversal. See Tana Oil Gas Corp., 104 S.W.3d at 82 (holding that directed verdict granted during first witness's testimony was "irregular" but harmless because proof of all claims would still not entitle plaintiffs to the only damages sought). Accordingly, we must examine Martinez's responsive arguments supporting the trial court's pretrial directed verdict.
Martinez contends the trial court's directed verdict was neither premature nor improper. She argues the trial court initially and correctly determined that the only evidence the State Office of Risk Management could offer on the issue of whether Martinez was acting in the course and scope of her employment when she sustained her injuries ( i.e., testimony by her supervisor that Martinez did not have prior approval to work at home) was irrelevant and inadmissible as a matter of law. We disagree with Martinez's basic premise that the State Office of Risk Management had no other evidence. The record confirms that counsel for the State Office of Risk Management sought, but because of the directed verdict, was denied the right to call Martinez as an adverse witness. Thus, the trial court's actions effectively precluded the State Office of Risk Management from cross-examining Martinez's version of the facts. Generally, a party's testimony raises an issue of credibility for jury determination, thereby precluding a directed verdict. See Collora v. Navarro, 574 S.W.2d 65, 69 (Tex. 1978). In fact, as our Supreme Court has noted, there exist cases "where the credibility of an interested witness or party is so suspect that it must go to the jury, even though the testimony is uncontradicted." Id. Here, the premature granting of a directed verdict improperly denied the State Office of Risk Management the right to cross-examine Martinez and thereby challenge her credibility and attempt to disprove that she was acting in the course and scope of her employment at the time the accident occurred.
Alternatively, Martinez argues that even if the directed verdict was premature, it should nonetheless be affirmed because it essentially restated the grounds for, and expressly incorporated, Martinez's motions for traditional and no-evidence summary judgment. Martinez notes that Rule 166a of the Texas Rules of Civil Procedure does not limit the number of times a motion for summary judgment may be filed or considered by the trial court. Therefore, regardless of its caption, the trial court could have essentially reconsidered and granted judgment in Martinez's favor based on the grounds set forth in her summary judgment motions. In support of this argument, Martinez relies on De Los Santos v. Southwest Tex. Methodist Hosp., 802 S.W.2d 749, 756 (Tex.App. 1990), disapproved on other grounds Lewis v. Blake, 876 S.W.2d 314 (Tex. 1994).
We find such a reading of De Los Santos overly broad. Rule 166a provides that a motion for summary judgment must be in writing and filed and served at least 21 days prior to the hearing. Tex. R. Civ. P. 166a(c). To treat the pre-trial directed verdict motion as a summary judgment motion, Martinez was required to have filed the motion and provided 21 days' notice before the hearing. The motion for pre-trial directed verdict was filed and heard on the same day, with no opportunity for the State Office of Risk Management to respond. Although a party may not be limited as to the number of summary judgment motions it may file, the procedures for doing so must be followed. Accordingly, the State Office of Risk Management's first issue is sustained. In its second issue on appeal, the State Office of Risk Management argues that the trial court erred in granting the motion for pre-trial directed verdict on the basis of a so-called " Downs waiver." In her motion for pre-trial directed verdict, Martinez argued that the State Office of Risk Management failed to timely contest compensability. The Downs waiver, however, is no longer a viable argument for Martinez in light of the Texas Supreme Court's recent decision in Southwestern Bell Telephone Co., L.P. v. Mitchell, No. 05-0171, 2008 WL 5266380 (Tex. Dec. 19, 2008). Downs held that section 409.021(a) of the Texas Labor Code required insurance carriers to either initiate compensation benefits or contest them within seven days of receiving notice of injury, and that failure to do so waived the right to contest compensability. See id. at *1. The Legislature promptly amended the Labor Code to make clear that this interpretation of the Code was incorrect. Id. at *3. Finding Downs to be "an anomaly in the law," the court stated that cases falling within the "gap," i.e., between the holding in Downs and the effective date of the amendment to the Labor Code, should not be held to the erroneous standard pronounced in Downs. Id. at *4. This case falls within that gap. Accordingly, the Downs waiver does not apply, and the State Office of Risk Management's second issue is sustained.
Continental Cas. Co. v. Downs, 81 S.W.3d 803 (Tex. 2002).
In one issue on cross-appeal, Martinez asserts that we may affirm the trial court's judgment on the ground that her no-evidence and traditional motions for summary judgment were erroneously denied. Martinez contends that the trial court erred in denying her no-evidence and traditional motions for summary judgment because the State Office of Risk Management had no probative evidence that Martinez did not sustain her injury in the course and scope of employment, and because the evidence conclusively established as a matter of law that the State Office of Risk Management did not timely contest the compensability of her injury. Generally, an order denying a motion for summary judgment, both traditional and no-evidence, is interlocutory and not appealable. See Valencia v. Garza, 765 S.W.2d 893, 897 (Tex.App. 1989, no writ); see also Tex. R. Civ. P. 166a(i), Comment — 1997. Because Martinez does not rely on an exception to the rule prohibiting appeal from the denial of a summary judgment, we conclude that her issue is not reviewable on appeal.
The record reflects that Martinez's motions for summary judgment were denied by the Honorable John Gabriel, presiding judge of the 131st Judicial District Court, Bexar County, Texas.
Conclusion
Based on the foregoing analysis, we reverse the judgment of the trial court and remand the cause to the trial court for further proceedings.