358 S.W.3d 438
Tex. App.2012Background
- Pipes sued D. Scott Hemingway d/b/a Law Offices of D. Scott Hemingway; Greg Bender; SJS Holdings, LLC; FOI Group, LLC; Red River Fiber Optic Corporation; Carl L. Goodzeit; and Tewari De-Ox Systems, Inc. for conversion.
- Appellees moved to dismiss on grounds including res judicata, election of remedies, statute of limitations, lack of jurisdiction due to TWC chronology, and prior wage claim findings.
- TWC wage claim proceedings determined Pipes’s unpaid wages within a 180-day window and later periods, with a Preliminary Wage Determination and an appeal to the Wage Claim Appeals Tribunal.
- Pipes argued the wage claim did not preclude a separate common-law conversion claim for work performed as an independent contractor.
- Trial court granted a dismissal with prejudice, finding Pipes precluded from past wages; Pipes then moved for new trial, which was struck, and Pipes filed a notice of appeal.
- The appellate court held that the trial court’s dismissal was proper on some bases but erred by dismissing conversion claims for certain pre-strike and interim time periods, and it reversed and remanded on those portions; it also determined Pipes’s notice of appeal was timely despite the strike order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Res judicata/election of remedies bar for wage-related claims | Pipes contends wage claim does not bar independent contractor claims. | Appellees argue wage claim precludes related common-law claims. | Partially upheld: res judicata/election bar applies to wages within the TWC period; not to client-payment wages after that period. |
| Statute of limitations on conversion claim | Pipes asserts a timely conversion claim despite TWC proceedings. | Appellees maintain limitations bar any post-TWC conversion claims. | Conversion claim barred for periods within the TWC-determined wage window; not barred for interim periods未, remanded for those periods. |
| Appellate jurisdiction and timeliness of appeal | Pipes argues timely appeal despite post-judgment strike. | Appellees contend the strike voided the extended deadline. | Pipes’s appeal timely; the trial court’s order striking the new-trial motion was void after plenary power expired. |
| Dismissal on use of summary-judgment-like procedure | Pipes challenged the procedural vehicle used. | Appellees treated dismissal as summary judgment. | Court treated as summary judgment for purposes of review; affirmed in part and reversed to remand on conversion portions. |
Key Cases Cited
- Lane Bank Equip. Co. v. Smith S. Equip. Inc., 10 S.W.3d 308 (Tex. 2000) (plenary power and deadlines for post-judgment motions)
- Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78 (Tex. 2008) ( Payday Law applies cumulatively to common-law claims; res judicata may bar wage claims)
- L.M. Healthcare, Inc. v. Childs, 929 S.W.2d 442 (Tex. 1996) (plenary power and post-judgment deadlines guidance)
- Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492 (Tex. 1991) (unpleaded affirmative defenses may serve as basis for summary judgment when raised in motion)
- Via Net v. TIG Ins. Co., 211 S.W.3d 310 (Tex. App.—Dallas 2006) (unpleaded affirmative defense can be treated as tried by consent)