Mitchell v. John Wiesner, Inc., 923 S.W.2d 262

Mitchell v. John Wiesner, Inc.

923 S.W.2d 262

Tex. App.

1996

Check Treatment

*1 gate Mehaffy only hinges Judge off its was an testified. The facts unforeseeable Appellants Judge Mehaffy hearing event or a “freak accident.” the of- elicited from support previously fered no other witnesses to their which had not been disclosed theory gate that percentage Burrell’s construction was were the amount of rent and negligently. done Giving credence to all of the firm. income the trust received from testimony, the witnesses’ come to the Floyd Judge overruled the motion. testimony conclusion that the is in conflict. There is a distinction between We therefore view the evidence based on the disqualify motions to recuse. motions to review, accepted standard of and find there Towers, 858 Maritime Warehouse Co. v. Gulf support is some evidence to the failure to find, support but also some evidence to denied). disqualifi While negligence finding. jury The heard raised at cation cannot be waived and can be finding supported which would have either a time, may if not any “recusal be waived negligence negligence. weigh- or no After by proper at 559-560. raised motion.” Id. jury appel- the the failed to find 18b(5) added) pro (emphasis Tex.R.Civ.P. negligent. being lee was the evidence vides that: conflict, jury finding the is conclusive and any parties proceeding to a waive The binding on this not so ground fully after it disclosed for recusal contrary overwhelming weight the on the record. manifestly unjust. evidence to be points we overrule of error one and two. applica- of discretion” standard is The “abuse regarding reviewing decisions recusal. ble three, appellants’ point of error 18a(f); Maritime Ware- Tex.R.Civ.P. Gulf “[t]he state trial court erred Appellants 858 S.W.2d at 558. house recuse itself. any presented any facts or have not shown trial, During appellants and their coun- Judge demonstrating that Donald authorities appellee’s lawyers sel were twice advised the overruling Floyd discretion in abused his space up set leased their office from trust Accordingly, appellants’ motion to recuse. Mehaffy chil- Judge Trial James for his is overruled. point of error three Judge’s was the dren and that the brother judgment trial court is affirmed. of the of the trust. On December trustee appellants’ counsel the trial court informed AFFIRMED. assuming he had that to his the bench children; he the trust for his created ownership transferred of the office build- trust; was the

ing to the that his brother trust; firm of of the

trustee in that build- & were tenants

Germer Gertz request

ing. Appellants elected not

judge’s December recusal. On record, appellants and reminded on the MITCHELL, Appellant, attorney prior conversation re- of the their Appellants chose not to garding the trust. WIESNER, INC., Appellee. JOHN trial, during the nor a motion to recuse file mat- any discussion of the there further No. 09-95-135 CV. ter. Texas, Appeals of Court of verdict, Three weeks after Beaumont. filed their motion appellants Judge Mehaffy’s re- disqualify. At cuse or May Presiding Judge Leonard Giblin quest, Floyd to hear pointed Judge Donald Judge

motion. hearing the motion

Floyd conducted *2 WALKER, C.J., and BURGESS

Before STOVER, JJ.

OPINION BURGESS, Justice. summary judgment case.

This is Mitchell, 17,1993, employ- an February Wiesner, Inc., with filed a claim ee of John alleging she Accident Board the Industrial on-the-job-injury on suffered an 8, 1993, March 1993.1 On pursuant Mitchell filed suit terminated. (Vernon Supp.1989)2 alleging had been dis- she charged filing a workers’ retaliation for compensation claim. for

Weisner filed a motion raising after-acquired evidence doc- ment relying upon Jordan v. Johnson Controls, denied).3 submitted, Weisner portion summary judgment deposition Mitchell’s and the affidavit of Ce- Hanus, manager. cile business Weisner’s Ms. Hanus’ affidavit stated she was the indi- responsible “hiring firing cer- vidual Mitchell, persons” tain she made the employ initial determination to Mitchell for a job required 90-day probationary period, the application diploma, diploma, claimed she had a if Hanus Mitchell would not have been hired not have the had known Mitchell did lying application that Mitchell on her was discharge and would have she deposition discharged. Mitchell’s es- tablished did not have a she diploma. Hootman, Timothy Compa- A. Hootman & response to the motion for Mitchell filed LaPorte, appellant.

ny, summary judgment, an affidavit Mitchell, Lawrence, Lawrence, deposition objecting Do- Paul R. Baca & nohue, Houston, deposition on file and appellee. because the was not 451.001(1) (Vernon § Compensation Appeals 2. Now 1. The Texas Worker’s Tex.Lab.Code Ann. workers' found in favor of Mitchell. The Pamph.1996). Panel compensation carrier filed suit and the district granted carrier an instructed verdict. Appeals adopted the Dallas Court unpublished opinion, reversed This in an after-acquired evidence doctrine in article and remanded for a new trial. Mitchell Ser- 8307c cases. (Tex. Lloyds 09-94-382 CV vice App. No. pending). for writ hearsay, having steps taken to collect such objecting to the Hanus’ affidavit as bene Borner, personal knowledge and unsubstanti- fits. Carnation Co. v. lack prove To an Anti-Retal opinion, being ated the affidavit of an inter- claim, clear, plaintiff need not show positive, iation Law ested witness which is credible, solely because of the direct free from contradiction and *3 claim; Further, if compensation other easily cannot be controverted. workers’ exist, discharge the worker applicability Mitchell denied the of the after- reasons Azar recover if retaliation is also a reason. acquired evidence doctrine. Mitchell’s affi- (Tex. Caille, alleged Britta Tarver hired and Nut Co. v. 720 S.W.2d [sic] davit 1986), verified, affirmed, App. 734 S.W.2d as a true and correct Paso fired her and —El (Tex.1987). Wiesner, opinions of a sister copy, from the termination letter appeals precedent are not that bind signed by court of Brita Tarver.4 Mullin, appeals, v. other courts of Eubanks filed an amended motion sum- Wiesner (Tex.App. Worth S.W.2d —Fort mary judgment which was identical writ), we are not bound no therefore original except it relied the affi- motion Nor can we Jordan v. Johnson Controls7 Angela McCreery Bacon. Bacon’s davit of portion of improve on that Chief billing affidavit stated she was the former McGarry’s “The After-ac dissent entitled during period ques- in clerk of Wiesner Inconsistent with quired Evidence Defense is tion, policies she knew the and rules Wies- Retaliatory Dis the Established Law ner, employed on a standard Jordan, charge”, 881 S.W.2d 90-day probationary period, Mitchell stated entitled portion of Justice in that she had a employment her Policy”, at 374. “Public 881 S.W.2d position Mitchell high adopt ac do not the after we applying required school di- in Texas as it relates quired evidence defense ploma, not have been hired Mitchell would The sum Anti-Retaliation Law claims. completed application had been accurate- her mary judgment is reversed. ly grounds it to submit and was grant- application. The trial court a falsified REMANDED. REVERSED AND motion for ed the amended Justice, WALKER, dissenting and Chief ment. concurring. brings single point of error: Mitchell refus- respectfully I dissent to this Court’s appellee’s granting in “The trial court erred after-acquired evidence de- adopt al summary judgment.”5 Mitchell motion Anti-Retaliation same relates to fense as (1) defense of after- argues the affirmative claims. Law not a valid defense of an acquired evidence is therefore, and, v. article 8307c claim Jordan majority agrees with the Our and should not be followed Controls, Inc., opinion in Jordan v. Johnson (2) after-acquired evidence defense valid, question a fact exists. denied), recog overlooking or authorities, both State and numerous nize Federal, court’s supportive of the Jordan the “Anti-Retaliation has referred after-acquired evidence doc adoption of the purpose Anti-Retaliation Law’s Law”6. The cases.1 article 8307c entitled to protect persons who are is to wrong protecting Something sadly compensation act under the workers’ benefits in order to obtain job applicants who lie being discharged prevent and to them to follow has declined of our sister courts 7. One for termination were 4. The Ap plurality opinion the Court of Criminal with co-workers substandard confrontations State, 916 S.W.2d 643 peals. v. See Hatcher work habits. 1996, n.w.h.). (Tex.App.—Texarkana Brothers, Napier, 461 Malooly Inc. v. 5. See See, Michigan e.g., Milligan-Jensen Tech. v. S.W.2d Cir.1992), Univ., cert. dism'd, 125 L.Ed.2d 114 S.Ct. Barfield, 509 U.S. City of LaPorte Ill, (1993); County, Washington v. Lake (Tex. 1995). n wrong good I to be and sound law. employment. Something is also when believe Jordan attempt we to “flower” the “he” use word follows Swanson v. American “falsification,” synonyms “false- hood,” “fib,” “misrepresentation,” “prevari- n.r.e.) is also cate,” “falter,” seeking “equivocate,” to avoid sound law.2 import. suppose through full I blunt Now, my agreeing that re- reasons for import, more avoidance of blunt that we proper Appellant here. mand is “fabrication,” readily fault the victim of the Mitchell had a employment application stated Actually, than the fabricator. reward the when, Mitchell diploma “equivocator” to the detriment of the inno- wit, diploma, to equivalency employer, long-haul, cent for effort, appellee, at a G.E.D. With little society comp-carrier generally, must as a condition of the time of *4 step recompense forward and make for the requested copy employment, could have “prevaricator’s” pas.” “faux There exist so appellant’s high school credentials. For many employers restrictions on as to what reason, appellee was not concerned whatever they potential employees can and cannot ask enough, employment, to at- at the time by prior hiring. Chapman, to dis- Justice now, Appellee, tempt after the verification. senting opinion [Johnson states: “It Con- job- fact of and after fact trols, investigated him Inc.] could have to injury, attempts capitalize related convictions, but, discover for whatever misrepresentation. technical reason, it hired him.” at Obviously, the “whatever reason” was difficult, judicial- Unfortunately, not ap- that Johnson Controls believed Jordan’s hard, ly impossible, design fast and plication which verified that he had “never relating after-acquired static rule felony been convicted of a or other serious justifiable discharge. appears It the ends of terminating crime.” Id. at 364. After Jor- justice through appropriate process due dan for Johnson Controls dis- leaving quire appraisal, a ease case covered Jordan had been convicted of armed general in tact. rule announced robbery peniten- and served time in a state cases, weighing these courts should be tiary. Clearly, Id. mindful of McKennon v. Nashville Banner would not have hired convicted felon had Co., U.S.-, 130 Pub. S.Ct. known these material facts. Id. (1995), requires an em- L.Ed.2d statement “It ployer, seeking rely after-acquired such investigated could him ...” have deserves wrongdo- to first that the establish employer some retort. How does an ade- severity employee, that the was of such quately “investigate” job applicant would have been terminated on those applicant? with effective consent of the How employer had known of alone potential employer adequately can a check discharge. wrongdoing such at the time of possible history applicant criminal of an running afoul access to my my without of restrictive concurrence. tripA law enforcement data? to the local open

courthouse for record search forty- applicant

reveal the was convicted

nine other states. Co., (7th Cir.1992); Honey proach). v. American Johnson v. Swanson Inc., Sys., S.W.2d 561 955 F.2d well Info. n.r.e.). Cir.1992); v. State Farm Mut. Auto. Summers Co., (10th Cir.1988); 864 F.2d Bon Works, ger F.Supp. American Water majority places heavy 2. Our reliance (D.Colo.1992); Pinker 1105-07 Churchman v. dissenting opinions be not- in Jordan. It should Inc., (D.Kan. F.Supp. ton's 520-21 in Jordan were ed that the two Justices Co., 1991); Airplane Boeing Military Mathis v. panel assigned that case. The three not on the (D.Kan.1989); F.Supp. majority but see assigned in the Justices were unified note, worthy opinion. Dunn Constr. Inc. 968 F.2d our Texas Su- Wallace v. Also (11th Cir.1992) (court preme rejects Court denied writ in Jordan. Summers