Rebecca Gallardo v. Insurance Company of the State of Pennsylvania ( 2015 )

NUMBER 13-14-00132-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
REBECCA GALLARDO, Appellant,
v.
INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA, Appellee.
On appeal from the County Court at Law No. 2
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Benavides
Rebecca Gallardo, proceeding pro se, appeals a summary judgment rendered
against her regarding her entitlement to supplemental income benefits. In a separate
opinion issued this same date, we have determined that part of the summary judgment
order is void and have directed the trial court to withdraw that part of the summary
judgment order. See In re Gallardo, No. 13-14-00203-CV, 2015 WL ___, at *_ (Tex.
App.—Corpus Christi Jan. _, 2015, orig. proceeding) (mem. op.). We affirm the
remainder of the summary judgment order in this appeal.
I. BACKGROUND
On June 2, 2008, Gallardo sustained a work-related injury for which she sought
workers’ compensation benefits. Insurance Company of the State of Pennsylvania
(“ICSOP”) was Gallardo’s employer’s workers compensation insurance carrier.
Through a series of contested case hearings, the Texas Department of Insurance,
Division of Workers’ Compensation (“Division”), concluded that Gallardo was not entitled
to receive supplemental income benefits.1
In February 2011, Gallardo filed a suit for judicial review of the Division’s
decisions on her first, second, third, and fourth-quarter supplemental income benefits.
This case was filed in cause number 2011-CCV-60284-A in County Court at Law
Number One of Nueces County, Texas. Gallardo and ICSOP settled the claims in that
case by Rule 11 agreement dated February 1, 2012. See TEX. R. CIV. P. 11 (“Unless
otherwise provided in these rules, no agreement between attorneys or parties touching
any suit pending will be enforced unless it be in writing, signed and filed with the papers
as part of the record, or unless it be made in open court and entered of record.”). The
settlement agreement provided, in relevant part:
1 Supplemental income benefits provide long-term disability compensation. See TEX. LAB. CODE
ANN. § 408.142 (West, Westlaw through 2013 3d C.S.); Rodriguez v. Serv. Lloyds Ins. Co., 997 S.W.2d
248, 253 (Tex. 1999). To be entitled to supplemental income benefits, the claimant has the burden of
establishing that the claimant: (1) has an impairment rating of fifteen percent or more from a compensable
injury; (2) has not returned to work or has returned to work earning less that eighty percent of the claimant's
average weekly wage as a direct result of the impairment; (3) has not elected to commute a portion of the
impairment income benefit under section 408.128; and (4) has complied with the work search requirements
adopted under section 408.1415. TEX. LAB. CODE ANN. § 408.142(a); Daniels v. Indem. Ins. Co. of N. Am.,
345 S.W.3d 736, 740 n.4 (Tex. App.—Dallas 2011, no pet.).
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The parties have agreed as follows:
1. Plaintiff is entitled to Supplemental Income Benefits for the first
quarter, second quarter[,] and third quarter.
2. Plaintiff is not entitled to Supplemental Income Benefits for the
fourth, fifth, sixth, seventh[,] or eighth quarter.
3. Plaintiff’s attorney[‘s] fees and expenses are capped at
$12,500.00[.]
4. The Parties agree to cooperate with each other in order to ensure
that all necessary paperwork, including a DWC-24 [benefit dispute
agreement] covering the 5, 6, 7[,] and 8th quarters, is timely
submitted and approved by TDI-DWC.
On April 12, 2012, the trial court signed a final judgment in accordance with the
settlement agreement. The judgment provided, in relevant part, that Gallardo was
entitled to supplemental income benefits for the first, second, and third quarters, but was
not entitled to benefits for the fourth quarter. The judgment did not address Gallardo’s
entitlement to the fifth, sixth, seventh, or eighth quarter benefits. ICSOP paid Gallardo
first, second, and third quarter supplemental income benefits.
Pursuant to the agreement, the parties executed a proposed DWC-24 Form on
February 6, 2012, and submitted it to the Division for review on May 10, 2012. On May
15, 2012, the Division’s Benefit Review Officer denied approval of the DWC-24 benefit
dispute agreement by correspondence to the parties stating:
Please take notice that I have denied the DWC-24 as submitted on
05/10/12 by the parties. The agreement as submitted includes SIBS
quarters 5th, 6th, 7th and 8th. The 5th and 6th quarters have previously
been scheduled for a BRC, but not the 7th and 8th quarters. In addition,
the agreement is signed 02/06/12 and I note that attorney Daniel Home
[sic] no longer represents the Claimant. A party should request dispute
resolution so all quarters noted herein can be addressed, and that the
Division may be assured that these are the terms agreed to by all parties.
I realize the 02/06/12 DWC-24 was part of another agreement outside the
Division jurisdiction; therefore, if the parties wish to sign another
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agreement, all issues can be properly resolved at a BRC.
In July 2012, ICSOP filed suit against Gallardo and her former counsel in trial
court cause number 2012-CCV-61313-2 in the Court at Law No. 2 of Nueces County,
alleging that Gallardo and her former counsel breached the settlement agreement
because they refused to cooperate in executing a new DWC-24 for submission to the
Division.2 This trial court proceeding gave rise to this appeal and the related petition for
writ of mandamus. ICSOP’s causes of action against Gallardo and her counsel
included breach of contract, conversion, and fraud in the inducement. ICSOP further
sought specific performance of the settlement agreement. Gallardo filed an original
answer to ICSOP’s petition which included a plea to the jurisdiction, a counterclaim, and
a motion for sanctions.
ICSOP filed a motion for traditional and no-evidence summary judgment seeking
specific performance of the settlement agreement or the return of the settlement funds.
See generally TEX. R. CIV. P. 166a. On December 12, 2013, the trial court held a
hearing on ICSOP’s motion for summary judgment, and, on January 24, 2014, the trial
court signed an “Order Granting Final Summary Judgment” in favor of ICSOP. In the
order granting summary judgment, the trial court concluded that Gallardo breached the
settlement agreement and granted specific performance of the settlement agreement.
The judgment specifically recites that: (1) Gallardo is entitled to supplemental income
benefits for the first, second, and third quarters; (2) Gallardo is not entitled to
supplemental income benefits for the fourth, fifth, sixth, seventh, or eighth quarters; (3)
Gallardo’s attorney’s fees and expenses were capped at $12,500.00; and (4) Gallardo
2 Gallardo’s former counsel was ultimately non-suited from this case and is not a party to this
appeal.
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“shall cooperate with ICSOP in order to ensure that all necessary paperwork, including a
[DWC-24] covering the fifth, sixth, seventh, and eighth quarters, is timely submitted and
approved” by the Division. According to the order, the trial court retained jurisdiction “to
enforce the terms of this decree of specific performance through further appropriate
proceedings and orders, including, as and if needed, findings and orders of contempt.”
Gallardo appealed the summary judgment in this cause on February 24, 2014 and
filed a separate petition for writ of mandamus contending that the trial court lacked
jurisdiction over the proceedings on April 1, 2014.
II. STANDARD OF REVIEW
When a party files a summary judgment motion on both traditional and
no-evidence grounds, we first review the trial court's judgment under the standards of
Rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A
no-evidence motion for summary judgment under Rule 166a(i) is essentially a motion for
a pretrial directed verdict. TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). After an adequate time for discovery, a party without the
burden of proof may, without presenting evidence, seek summary judgment on the
ground that there is no evidence to support one or more essential elements of the
non-movant's claim or defense. TEX. R. CIV. P. 166a(i). The motion must specifically
state the elements for which there is no evidence. See id.; Timpte Indus., Inc., 286
S.W.3d at 310. The non-movant, here Gallardo, must produce summary judgment
evidence raising a genuine issue of material fact to defeat the summary judgment under
that provision. TEX. R. CIV. P. 166a(i); Ford Motor Co., 135 S.W.3d at 600. A genuine
issue of material fact exists if the non-movant produces more than a scintilla of evidence
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establishing the existence of the challenged element. Morgan v. Anthony, 27 S.W.3d
928, 929 (Tex. 2000). In conducting our no-evidence summary judgment review, we
will “review the evidence presented by the motion and response in the light most
favorable to the party against whom the summary judgment was rendered, crediting
evidence favorable to that party if reasonable jurors could, and disregarding contrary
evidence unless reasonable jurors could not.” Timpte Indus., Inc., 286 S.W.3d at 310
(quoting Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). The trial court
is required to grant the motion unless the non-movant produces summary judgment
evidence that raises a genuine issue of material fact. TEX. R. CIV. P. 166a(i). If the
non-movant fails to produce more than a scintilla of evidence, then there is no need to
analyze whether the movant’s' proof satisfied the rule 166a(c) burden. Ford Motor Co.,
135 S.W.3d at 600. If the non-movant meets its burden under rule 166a(i), we consider
the motion under rule 166a(c). See id.
The party moving for traditional summary judgment bears the burden of showing
that no genuine issue of material fact exists and that he is entitled to judgment as a
matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v.
Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We review the summary judgment
evidence in the light most favorable to the party against whom the summary judgment
was rendered, crediting evidence favorable to that party if reasonable jurors could and
disregarding contrary evidence unless reasonable jurors could not. City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73
S.W.3d 193, 208 (Tex. 2002).
In contrast, we review the trial court's rulings on objections to summary judgment
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evidence for abuse of discretion. Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 859
(Tex. App.—Dallas 2008, no pet). A trial court abuses its discretion when it acts
arbitrarily or unreasonably, without reference to guiding rules or principles. Iliff v. Iliff,
339 S.W.3d 74, 78 (Tex. 2011); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)
(per curiam); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex.
1985). A trial court also abuses its discretion by failing to analyze or apply the law
correctly. Iliff, 339 S.W.3d at 78; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992).
III. ANALYSIS
By three issues, Gallardo contends generally that the trial court abused its
discretion in granting summary judgment and ordering specific performance of the
settlement agreement. Specifically, Gallardo contends that: (1) ICSOP failed to
comply with Texas Labor Code section 410.258, see TEX. LAB. CODE ANN. § 410.258
(West, Westlaw through 2013 3d C.S.); (2) the February 1, 2012 letter agreement did not
comply with Rule 11 of the Texas Rules of Civil Procedure, see TEX. R. CIV. P. 11; and
(3) ICSOP was attempting to dispose of supplemental income benefits that had not been
previously adjudicated by the Division. In contrast, ICSOP contends that the trial court
properly granted summary judgment in its favor requiring specific performance of the
terms of the underlying agreed judgment and Rule 11 Agreement, and that the summary
judgment should be affirmed in its entirety.
By her first issue, Gallardo contends that the summary judgment should be
reversed because ICSOP failed to comply with section 410.258 of the Texas Labor
Code. Section 410.258 of the Texas Labor Code requires a party to file any proposed
settlement or judgment with the workers' compensation division not later than the thirtieth
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day before the date on which the court is scheduled to enter the judgment:
(a) The party who initiated a proceeding under this subchapter or
Subchapter G must file any proposed judgment or settlement made
by the parties to the proceeding, including a proposed default
judgment, with the division not later than the 30th day before the
date on which the court is scheduled to enter the judgment or
approve the settlement. The proposed judgment or settlement
must be mailed to the division by certified mail, return receipt
requested.
(b) The division may intervene in a proceeding under Subsection (a) not
later than the 30th day after the date of receipt of the proposed
judgment or settlement.
(c) The commissioner shall review the proposed judgment or
settlement to determine compliance with all appropriate provisions
of the law. If the commissioner determines that the proposal is not
in compliance with the law, the division may intervene as a matter of
right in the proceeding not later than the 30th day after the date of
receipt of the proposed judgment or settlement. The court may
limit the extent of the division's intervention to providing the
information described by Subsection (e).
(d) If the division does not intervene before the 31st day after the date
of receipt of the proposed judgment or settlement, the court shall
enter the judgment or approve the settlement if the court determines
that the proposed judgment or settlement is in compliance with all
appropriate provisions of the law.
(e) If the division intervenes in the proceeding, the commissioner shall
inform the court of each reason the commissioner believes the
proposed judgment or settlement is not in compliance with the law.
The court shall give full consideration to the information provided by
the commissioner before entering a judgment or approving a
settlement.
(f) A judgment entered or settlement approved without complying with
the requirements of this section is void.
TEX. LAB. CODE ANN. § 410.258. ICSOP contends it submitted the proposed judgment
to the Division for review in accordance with this section by transmittal letter dated
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February 15, 2012.3
Compliance with section 410.258 is both mandatory and jurisdictional, and the
failure to provide the required notice to the Division renders a judgment void. S. Ins.
Co. v. Brewster, 249 S.W.3d 6, 12 (Tex. App.—Houston [1st Dist. 2007, pet. denied);
Metro. Transit Auth. v. Jackson, 212 S.W.3d 797, 800 (Tex. App.—Houston [1st Dist.]
2007, pet. denied); Ins. Co. of Pa. v. Martinez, 18 S.W.3d 844, 847 (Tex. App.—El Paso
2000, no pet.); see also Albertson's Inc. v. Sinclair, 984 S.W.2d 958, 962 (Tex. 1999)
(“[S]ubsection 410.258(f) provides that a judgment entered or settlement approved
without complying with section 410.258's requirements is void. That the Legislature
could have but did not similarly provide a consequence for noncompliance with [another
section] suggests that it chose not to do so.”).
We are to presume the regularity of judgments, absent controverting matter in the
record. See S. Ins. Co., 249 S.W.3d at 13–14 (collecting authorities). This doctrine
applies to issues arising under section 410.258, thus, a judgment is not rendered void
where the record and judgment are silent regarding compliance with section 410.258.
See id.; see also State Office of Risk Mgmt. v. Berdan, 335 S.W.3d 421, 423–24 (Tex.
App.—Corpus Christi 2011, pet. denied) (holding that the judgment was not void where
the record and judgment were silent regarding compliance with section 410.258); Bell v.
Zurich Am. Ins. Co., 311 S.W.3d 507, 513 (Tex. App.—Dallas 2010, pet. denied)
(supplemental op. on reh'g) (same); Ins. Co. of State of Pa. v. Orosco, 170 S.W.3d 129,
3 In its brief, ICSOP asserted that this letter was not contained in the clerk’s record; however,
ICSOP asserted that it would file a motion to supplement the record with this letter. No such motion was
ever filed. ICSOP attached this letter as an exhibit to its brief. We do not consider attachments to briefs
that were not part of the trial court record and are not formally included in the appellate record. Guajardo v.
Conwell, 46 S.W.3d 862, 864 (Tex. 2001); In re Guardianship of Winn, 372 S.W.3d 291, 297 (Tex.
App.—Dallas 2012, no pet.); Paselk v. Rabun, 293 S.W.3d 600, 612 n.12 (Tex. App.—Texarkana 2009, pet.
denied). Given our disposition of this issue, we need not further address this matter here.
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134–35 (Tex. App.—San Antonio 2005, no pet.) (same); Casillas v. State Office of Risk
Mgmt., 146 S.W.3d 735, 738–39 (Tex. App.—El Paso 2004, no pet.) (same). Neither
the record nor the judgment contain any information refuting ICSOP’s allegations
regarding its compliance with section 410.258. As the complaining party, Gallardo
carried the burden to establish why this Court should not apply this presumption
regarding the regularity of judgments in this case. See Brewster, 249 S.W.3d at 14.
Gallardo failed to carry that burden herein. Accordingly, we overrule Gallardo’s first
issue.
In her second issue, Gallardo contends that the parties’ February 1, 2012 Rule 11
Agreement failed to comply with the rules of civil procedure because it was never filed.
Texas Rule of Civil Procedure 11 provides that “no agreement between attorneys or
parties touching any suit pending will be enforced unless it be in writing, signed and filed
with the papers as part of the record, or unless it be made in open court and entered of
record.” TEX. R. CIV. P. 11; see In re Vaishangi, Inc., 442 S.W.3d 256, 259 (Tex. 2014)
(per curiam). The filing requirement in the rule is satisfied so long as the agreement is
filed before it is sought to be enforced. Padilla v. LaFrance, 907 S.W.2d 454, 461 (Tex.
1995). Our review of the clerk’s record indicates that the parties’ February 1, 2012
letter agreement was filed as an exhibit to ICSOP’s original petition in this case.
Accordingly, we overrule Gallardo’s second issue. See id.
In her third issue, Gallardo contends that ICSOP was attempting to dispose of
supplemental income benefits that had not been previously determined by the Division.
By separate opinion issued this same day, we determined that the trial court lacked
jurisdiction to make any findings regarding Gallardo’s entitlement, or lack thereof, to fifth
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through eighth quarter supplemental income benefits. See In re Gallardo, 2015 WL
___, at *_. Accordingly, we need not further address this issue here. See TEX. R. APP.
P. 47.4.
IV. CONCLUSION
Having overruled each of appellant’s issues, we affirm the summary judgment, as
previously modified by our separate opinion in the original proceeding. See id.
/s/ Gina M. Benavides
GINA M. BENAVIDES,
Justice
Delivered and filed the
19th day of February, 2015.
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