*1 Wayne HULL, Appellant, Donald (Datasorsconsulting,
Dicarlos DAVIS
L.L.C.) and Texas Workforce
Commission, Appellees.
No. 14-05-00785-CV. Texas, Appeals
Court Dist.). (14th
Houston
Dec.
BACKGROUND Hull against filed this lawsuit Davis and on September payment TWC for wages allegedly incurred when Hull was through contracted for the Davis sale of phone DSL and residential services. Prior suit, to the initiation filed a complaint unpaid wages for with TWC. February the claim denied on 2004. Hull filed an of the appeal prelimi- nary wage determination order1 (“PWDO”) 4, claiming on June he moved and supplying was a new TWC with ad- dress. That and notifi- denied July cation mailed to Hull on 6. Hull then filed trial suit original petition, “Plain- entitled Wayne tiffs’ Complaint Donald Hull [sic] Contract,”2 Promissory On A Note Or Davis, LLC, Datasorseonsulting names and allega- TWC as defendants makes and Chapter tions of the Texas Labor Houston, Hull, Wayne pro Donald se. § Code. 61.001 et Lab.Code Ann. Austin, Smith, for appel- Seth Orman (Vernon 2006). seq. petition, In his lees. $1,660.00 payment demands from the defendants. Davis/Datasorsconsulting ANDERSON, Panel consists Justices suit, LLC answered the and TWC sepa- EDELMAN, and FROST. rately answered with a general denial and the affirmative sovereign defense of immu- OPINION MAJORITY nity plea jurisdiction. and asserted a to the ANDERSON, Justice. JOHN S. Hull responded to TWC’s (1) asserted he had no intent proceeding Hull, Wayne appeals Donald Appellant, against complaints TWC because his are judgment dismissing his the trial court’s (2) entirely Hull pos- (Datasorscon- Dicarlos Davis suit sesses a common law L.L.C.) (“Davis”) unpaid and the Texas sulting, wages against (“TWC”) Pay- under the Texas for want Commission Workforce day Law. Hull also filed a motion presents three issues for con- jurisdiction. (entitled tinuance trial court Finding proper- Request “Motion of To appeal. Trial”) jurisdiction, Postpon to the plea until ly granted such time TWC’s as he would be released from prison we affirm. and could wage determination order is 2. The preliminary states it is based aon an individual claim has after by TWC contract, issued note or there is Tex Lab.Code investigated. note or contract attached been pleading. 2006). (Vernon 61.052(a) Indep. Bland of a cause of action. settings adequately matter attend Blue, 547, 554 prepare. Dist. v. Sch. court prop- Whether July hearing The trial court held a *3 a jurisdiction to is plea a the erly granted 11, During hearing, that Dicarlos 2005. a law, of which we examine question Davis, himself and Datasor- representing Mayhew v. of review. novo standard de and for were sconsulting, counsel 964 928 Sunnyvale, S.W.2d Town proceeded The trial court with- of present. (Tex.1998). has the plaintiff burden Hull was out Hull’s attendance because affirmatively demonstrating allege facts to two and remain so for incarcerated would subject jurisdic- matter trial court has the years. The court denied more trial first Bus., at Tex. 852 S.W.2d tion. Ass’n for The trial Hull’s motion continuance. jurisdic- plea the analyzing In a to argument sup- in court then heard TWC’s tion, weigh not the jurisdiction and a court must claims’ port plea ,the of its to timely granted plea. only Hull filed a no- the plain- the consider merits should tice of appeal. pertinent the pleadings and evidence tiffs County jurisdictional inquiry. the
to Brown, 549, 555 Discussion v. Cameron (Tex.2002). considering trial following a appeal, alleges On the When (1) jurisdiction, plea errors the trial court: the trial court a the court’s order on to failing in to Hull’s erred rule on motion plaintiffs pleadings. the we first review (2) counsel; appointment of the trial court in the pleadings plain- the Id. We construe entering judgment against a erred in to intent. pleader’s tiffs favor and look the “silent;” judgment and the was the pled true facts in Id. We take as the (3) the court in failing trial erred to award petition determining whether plaintiffs $1,660 accepted when jurisdiction in trial support facts the those a con- complaint on note or court, may the entire record and we review tract. arguments TWC makes several jurisdiction. if there is to determine granting of support of the trial court’s 446; Bus., also 852 S.W.2d at see Ass’n of jurisdiction. to Before plea TWC’s the Gibson, 22 Indep. Sch. Dist. v. Waco turning to the merits of substantive (Tex.2000). We should S.W.3d 854 argument, we must first determine wheth- to relevant our review the evidence confine correctly granted the TWC’s er trial Bland, jurisdictional 34 the issue. to jurisdiction. to Ass’n plea the See Tex. at 555. S.W.3d Bd., Bus. v. Air S.W.2d Control plead fails to facts plaintiff When If the trial court did jurisdiction, the does then not granting plea, not err in the it did establish claims, jurisdiction affirmatively includ- demonstrate incurable have over Hull’s not appeal to this jurisdiction, issues he raises on the issue the defects plaintiff sufficiency, and the opportunity to afforded the should be I. Standard of Review Id.; Serv. Co. Equip. Peek amend. (Tex. Antonio, 779 804-05 San jurisdiction to based plea TWC’s 1989). hand, pleadings if the other On the Law. See Tex. Lab.Code juris (Vernon 2006). affirmatively negate the existence et seq. 61.001 diction, may jurisdiction to plea then a challenges jurisdiction plea plaintiff allowing subject granted without authority be to determine Brown, an opportunity provisions. amend. per Id. No further mitted. S.W.Bd 555. pursue III. Did a common law
II. granting Did the trial court err in claim or an administrative reme- plea based on dy? Pay dag Law? Hull argues his common law claim An employee seeking unpaid preempted by is not Law be wages employer may from pursue an (1) cause he is from employer may action or (2) TWC, he chose *4 remedy seek an provided administrative as remedy against disagree. Davis. We Holmans, under the Law. II Payday v. First, pleadings suggests review of Hull’s Inc., Polymers, Transource 914 S.W.2d seeking judicial he is relief from an admin 189, 1995, 192 (Tex.App. Worth writ —Fort Law, Payday istrative decision under the denied). Chapter 61 the Labor Code thus, and TWC should be made a defen sets forth requirements the the Texas in dant the suit. Tex. Lab.Code Ann. Payday §§ Law. Tex. Lab.Code Ann. 61.001 § (requiring seeking ju 61.062 a claimant (Vernon 2006). etseq. The administrative preliminary dicial review of the TWC’s by remedy prescribed Payday the Law wage order to determination name TWC authority establishes the Texas Work party proceeding and other before the govern force payment Commission to the suit).3 TWC as the defendants Holmans, of wages by employers. 914 arguments in brief and reply his his re 1; S.W.2d at 190 n. see Tex. Lab.Code Ann. sponsive pleading original to TWC’s an 61.001(1), §§ provides The statute 61.002. jurisdiction plea clearly swer and for administrative review of claims and indicate Hull does not believe TWC should judicial review of administrative deci be involved the suit Davis and Holmans, 1; sions. at 190 n. 914 S.W.2d effectively should not be able to remove 61.052, 61.0525, §§ Tex. Lab.Code Ann. Hull, from the 61.055, 61.062. remedial pro scheme however, brought pursuant suit by Payday vided does pre Law not Law, Payday Texas as referenced ability bring clude a claimant’s an action style following of the case and state against an for unpaid wages, but employer ment in “This an original petition: his only provides an alternative means for en civil action on a complaint many forcement of of which wages, would Payday note or the Texas contract under expense be too small to of a civil justify Law.” Hull judgment against demanded Stores, Lopez, lawsuit. Inc. v. Wal-Mart $1,660.00 Davis and and commis TWC (Tex.App. 93 S.W.3d secondary ar though sions. Even —Houston Holmans, pet.); [14th Dist.] no 914 guments are that did not intend to file he at a claimant directly, S.W.2d 193. Should choose suit his initial ac TWC statute, to file a claim utilize its as a tions to name defendant and scheme, appeal remedial the final ad Law in Payday reference the his first order, pleading suggest initially ministrative then the claimant intended to Payday properly required to abide the statute’s seek review under Law Kshatrya v. Payday provides 3. The Law for the waiver of in the lawsuit. Workforce sovereign immunity requires Comm’n, to suit when it (Tex.App.' —Dal- party seeking judicial review anof adminis- pet.). las remedy the TWC a trative to make defendant not Hull did ex ruling of the TWC contends appeal the administrative before remedies TWC. haust all administrative he did not judicial relief when By initiating proceeding first wage appeal preliminary determination remedy with administrative under the an (“PWDO”) by Section required order Law, forego Hull chose to his § 61.054. 61.054. See Tex. Lab.Code Ann. causes action and purely common law to seek requires 61.054 claimant Section remedy provided by the alternative elected tri wage before a hearing party may initially Law. A twenty- appeal a PWDO within bunal to elect and then choose oth one (21) commis days after the date the the first er when dissatisfied with notice Holmans, sion mails PWDO. examiner result. See 61.054(b). If a hear simply ways. have it cannot both Tex Lab.Code limit, Had sought Hull wanted to his common time is not within that remedies, required law he would have been final, order and neither then the becomes to withdraw claim with the TWC be party is entitled to review. *5 fi fore the became commission’s decision § 61.055. The record re Ann. Lab.Code nal. See id. on original the PWDO was mailed flects February dispute 25 Hull does not this IV. Did Hull exhaust his administra- therefore, appeal appeal; date on an must Payday tive remedies under the by copy have filed March 17. been Law? in the appear the PWDO does not original Having found Hull elected to a record, copy the does contain record pursue remedy an administrative to recov on Motion for Rehear TWC’s “Decision from wages er we now consider to ing Payday From Law Decision” mailed whether Hull exhausted those administra 6, rehearing In July on the judicial tive remedies seeking before re decision, untimely TWC concluded commencing view. After a claim under by to appeal hearing waiting filed for an Law, Payday a claimant must exhaust re file until June 4. TWC dismissed the all administrative remedies before timely his because Hull did not file hearing appellate relief in court. See Tex. timely appeal. Hull did not file Because 61.062(a). Otherwise, § Lab.Code within hearing twenty- appeal for an trial court to hear the lacks frame, original time decision day Am., claim. Subaru Inc. David February 25 became mailed on 212, Nissan, Inc., 221 McDavid and Hull purposes, order of TWC for all (Tex.2002); Kshatrya v. Tex. Workforce judicial review. precluded from See Comm’n, 97 (Tex.App.— S.W.3d 831 61.055; see also Tex. Lab.Code Ann. Holmans, pet.); Dallas 914 Tech., Bus. and Phillips Fields v. Sch. of by the time Abiding S.W.2d at 191-92. (W.D.Tex.1994) (“As F.Supp. 154 870 Payday of the Texas Law manda limits hearing a to con party requested neither 61.051, §§ tory. Tex. Lab.Code Ann. preliminary ... determina wage test the 61.054, requires a 61.062. statute When order, final for became all tion order performance of an act within a certain to purposes, party and neither is entitled time, will specified period of time review.”). Hull failed to exhaust provides. be extended unless the statute so Ortiz, his and forfeited administrative Employment Comm’n v. review. S.W.2d to attempts precluded employee assert com- asserting former from mon-law claims for breach contract and common-law breach of contract for suit on a promissory plead- note.4 Hull’s Holmans, unpaid wages); 914 S.W.2d at attempt is an to recharacterize (wage 193-94 claimant who chooses to reassert wages the same claim for unpaid pursue remedy under Law must initially brought against Davis comply statutory provisions with before Payday Law. Having chosen to remedies). pursuing common law Law, under the Hull was obligated to his exhaust administrative any complaint Did Hull V. waive seeking judicial remedies before review. the trial court’s failure rule on to 61.055, §§ See Lab.Code Ann. request appointed for counsel? 61.062(a); Holmans, 193-94. He pro- failed to do so. Section 61.055 issue, In complains his first vides: the trial court’s failure to his mo rule
If party requests hearing neither for appointed tion After a counsel. dili preliminary wage determina- record, gent search of the entire we could period tion within prescribed order not find type presenting motion 61.054, Section order becomes the request for appointed counsel final order of the commission all court or a ruling denying trial court purposes, and party neither entitled a request such if one was made. There judicial review of order under this fore, appellant has failed to preserve this subchapter. Tex.R.App. for our P. issue review. 33.1. *6 61.055. Ann. Lab.Code appellant’s We overrule first issue. Based on the unambiguous language of statute, party neither entitled Conclusion
judicial of review the commission’s final proceeded against Because Hull first order. id. sidestep See Hull cannot Law, Payday Davis under the Texas he plain language by simply of the statute required fully was exhaust that adminis- reasserting unpaid claim for as wages trative before re- a common-law claim for breach contract view. failed to seek an hear- or suit on promissory a note. See St. 11th by ing, required as Section 61.054 of the Simonson, Bingo Assoc. v. No. 13-02- Law, Payday precluding review. (Tex. 399-CV, 2004 WL at *2-3 §§ 61.054-055. Ac- 20, 2004, App.-Corpus May no Lab.Code Christi (mem. (trial cordingly, subject court the trial lacked pet.) op.) subject court lacked jurisdiction to matter consider Hull’s jurisdiction matter over common-law debt properly claims and Hull’s dismissed suit action where claimant chose to jurisdiction. Having for want affirmed Payday Law under and failed remedies); the trial court’s dismissal Hull’s suit for Igal exhaust administrative v. jurisdiction, Inc., we not Brightstar Group, 140 want need address Tech. Info. it (Tex.App.-Eastland appellant’s remaining 822-24 issue as does not (TWC’s 2004, pet. jurisdiction. granted) final decision address the trial court’s We Payday that claim not filed trial timely judgment affirm of the promissory Hull's Petition states: "This is an civil note or contract is attached to the [sic] complaint promissory action on a or note pleading. Payday contract Texas law.” No Justice, FROST, “an action com- his suit includes civil KEM THOMPSON plaint promissory note or contract concurring. on Payday Texas Because under the Law.” judg- I in respectfully concur the court’s or sus- special exceptions were asserted I of the disagree parts ment with this court petition, as to Hull’s tained analysis. majority’s liberally Hull’s should construe correctly trial court The determined and in his favor. See Horizon/CMS jurisdiction defendant/appel- it had no over Auld, Corp. Healthcare lee Texas Workforce Commission (Tex.2000). Giving Hull’s (“TWC”), opinion. majority as noted construction, Hull asserts this liberal However, Wayne Hull’s appellant Donald promis- for beach of a against claim against a claim petition also includes de- note, sory claim covered Dicarlos fendant/appellee Davis/Datasor- and, below, Payday explained Texas law (hereinafter “Davis”) seonsulting, L.L.C. juris- court did not dismiss on the trial of a note. Constru- breach grounds. dictional petition liberally and in fa- vor, claim is not the Texas this covered Claims Hull’s Other Although Law. the trial court im- Although granted the trial court TWC’s take-nothing judg- properly rendered dismissed plea to the claim, ment this Hull has not briefed on ju- against TWC for lack Hull’s claims disposi- complaining this argument risdiction, judgment that Hull it rendered Therefore, though tion. even this court nothing against other [Davis]” “take rationale, wrong relies it reaches fact majority ignores claims. right affirming result trial acts as if the court dismissed instead judgment. when, jurisdictional grounds all claims on fact, disposed of the note Claims Davis on substantive His Texas Claim not briefed grounds. appeal, On has against Davis *7 “take noth- any argument challenging the correctly court affirms the trial judgment. In ing” part of trial court’s dismissal for lack of however, issue, Hull contends second against to Hull’s claims and Hull’s TWC rendering that trial court erred against but the Texas final against him and that judgment determining all of court errs that Hull’s it is judgment is defective because against Davis are claims Texas to his claims disposition “silent” as pp. 465. Hull’s claims. See ante argument fails against Davis. Hull’s be- original petition, entitled “Plaintiffs’ Don- regarding judgment is not cause the silent On Wayne Complaint ald judgment, against Davis. In the his claims Contract,1” Promissory Note Or names that Hull clearly the trial court ordered In as defendants. this Davis nothing as these claims. take only allegations petition, makes appellate all of Hull’s reviewing After Chapter 61 of Texas Labor preserved that Hull Code,2 presuming also that brief and but states this seq. (Ver- 61.001 et 2. See Tex. Lab.Code that based on a 1. The states it contract, 2006). note there or non pleading. note contract attached or error regarding take-nothing judg
ment, PEREZ, any Appellant, Hull has waived Michael complaint re garding part judgment this fail v. authorities, present argument, record supporting citations his contentions. KLEINERT, Aaron Thomas Alexandria 38.1(h). Tex.R.App. P. Texas Rule of Garza, and Farm Marie State Mutual 38.1(h) Appellate requires Procedure that Company, Ap Automobile Insurance appellate “contain a briefs and con clear pellees. argument made, cise for the contentions with appropriate citations to authorities No. 13-05-118-CV. and to the record.” Id. Appellate courts Texas, Court of Appeals must Appel construe the Texas Rules of Corpus Christi-Edinburg. late reasonably, yet liberally, Procedure so right is not lost Dec. imposing absolutely requirements not nec essary to the purpose effect of a rule.
Republic Underwriters Ins. Mex- Co. v.
Tex, Inc.,
Nonetheless, appellate fails to brief
satisfy very even this liberal standard. Energy,
See San L.P. Crawford, Saba 323, 338 (Tex.App.-Houston Therefore, no pet.).
[14th Dist.] this
court affirm the judg should trial court’s
ment as to the basis that the trial take-nothing judgment rendered a claims Davis and
has argument not briefed appellate
challenging judgment.
Conclusion sum,
In today the court correctly affirms juris- court’s dismissal lack
diction as to Hull’s claims TWO *8 Hull’s Texas claim majority misses the mark analysis promissory-note
its Nonetheless, Davis. above, explained
reasons reaches in affirming
the correct result judgment.