*2 CORNELIUS, C.J., Before GRANT and ROSS, JJ.
OPINION Opinion by Chief Justice CORNELIUS (New New Boston General Hospital, Inc. Boston) DPM, and James J. Naples, Inc. (Dr. Naples) appeal summary from a judg- ment rendered in favor of the Texas Work- (TWC) force Commission Becky and Ms. (Ms. Borgeson). New Boston contend that the trial court granting erred in summary judgment be- summary judgment cause the evidence ad- duced beforе the trial court did not consti- evidence, tute substantial because prohibited on state alleged underlying contract which statutes, illegal therefore Borgeson sued was federal while points unenforceable. both of Borgeson supervised by Bachyn- We overrule *3 judgment. error and affirm the sky, wages directly she her from received Aсcordingly, New Boston. Mr. Carnes 12, 1998, February Borgeson On Ms. or- modified the March 16 determination alleging a the wage filed claim TWC der, Dr. that New and not holding employer, Naples, that her Dr. had failed Naples, president was Boston’s to rendered compensate her for services director, was Borgeson’s employer, 2, from 24 to December November prior the and affirmed determination Additionally, Borgeson claimed that 14, 1998, July modified. On New Boston $45,000.00 she was entitled to a bonus Dr. Naples petition judicial filed a for retirement, nursing, enrolling for various review in the District Court of Bowie to have their living and assisted homes County. Although origi- an the TWC filed at In patients Naples’ treated Dr. clinics. answеr, 1998, nal filed an Borgeson neither Payment March Law the Labor September the appeared Division the a answer nor at preliminary TWC issued wage indicating hearing, determination order and a default was Chapter Naples Dr. had violated 61 of the al- granted against Borgeson her. Ms. pay Texas Labor Code and ordered him to leged a motion for new trial that she $41,461.54 to TWC for the benefit of Ms. to mistakenly believed her interests were Dr. Borgeson. Naples filed Subsequently, TWC, by her protected be the and that pursuant notice of to Tex. appeal a formal and not appear failure to was inadvertent 1996). 61.054(b) (Vernon § Lab.Code Ann. the result of conscious indifference. 16, 1999, On June the TWC issued its default accordingly trial court set aside the Decision, on Payday largely Law based Thereafter, judgment against her. telephonic two conferences and a verified summary judg- for TWC filed a motion Bachyn- Dr. by affidavit executed Nicholas ment, granted. which the trial court representative sky, who had acted as Bоston and Dr. filed motion Douglas Dr. decision Mr. Naples. trial, new the trial court denied. which Carnes, officer, vari- hearing a TWC made On appeal (1) including: ous of fact that Ms. findings grant trial contend that the court erred Borgeson was hired judgment because as a mat ing summary to Naples’ implement with Dr. approval, summary judgment evidence ter of law to increase for New Boston plan business to did constitute substantial evidence by marketing nursing and retirement support Payday Law Decision. the TWC (2) homes, Borgeson an em- of a final decision of review Judicial contractor, independent ployee and not pursuant to Tex. TWC is available Lab. train- continuing relationship, based on a (Vernon 61.062(e) 1996); Lev compensation which ing, and methods of Code Ann. Contreras, v. Indep. elland Sch. Dist. benefits, agree- fringe that an included 1993, 474, (Tex.App. S.W.2d Borgeson ment between Ms. existed —Amarillo denied). Specifically, Section writ whereby Bachynsky 61.062(e) a trial de novo to deter requires paid percent be ten the revenues would exists minе substantial evidence recruited, whether but that No- from homes she See Mercer support TWC decision. vember of Ross, (Tex.1986); v. 701 S.W.2d provide for a flat fee of changed to Indep. Sch. Dist. $1,000.00 Consol. per because the former Madisonville home Comm’n, Employment Texas S.W.2d 727 (Tex.App. 817 S.W.2d —Texarkana denied). 1991, 1991, (Tex.App. Corpus writ Christi — denied). writ pre A dеcision TWC valid, seeking and a sumed to be Marsh, In Jones v. Texas Su agency’s set aside the decision has preme described the evi Court substantial that it supported burden to show was not dence standard of review as follows: Ross, by substantial evidence.2 Mercer v. finding that the [I]t is of the administra- Found, 831; Mary Lee body or agency tive be sustained Comm’n, Employment Texas *4 if it is reasonably by court supported at 727. It for the reviewing is court evidence, evidence meaning substantial the decide whether evidence is such that court, in introduced cowi. It for the is minds could not reasonable have reached appellate, whether trial or to determine body the the conclusion administrаtive as a law matter the reasonableness of of must have reached order to its justify support the afforded substantial evi- Employment actions. Haas Texas dence, and in making its of this decision Comm’n, 462, 683 S.W.2d 464 (Tex.App.— question the court examines and takes writ). 1984, no Dallas into consideration all of evidence. the Marsh, 362, Jones v. 148 Tex. 224 summary S.W.2d A judgmеnt proper is added). 198, (emphasis 202 More- only a movant no when establishes that over, review, in the de genuine novo issue is the of material fact and issue exists whether the evidence the introduced that the movant is entitled to as judgment trial court shows at 166a(c); facts that the existed matter of law. Tex.R. Civ. P. Co., time TWC order Mgmt. was issued that are оf Prop. Nixon v. Mr. 690 S.W.2d (Tex.1985). 546, such a reasonably substantial nature as determining In 548-49 support the order. Burton v. Texas Em- whether a material fact issue exists Comm’n, 690, ployment 743 692 preclude summary judgment, S.W.2d fa evidence denied) 1987, true, (Tex.App. Paso writ voring the nonmovant is taken as —El Antonio, City Cruz v. (quoting 424 every San reasonable is indulged inference of S.W.2d (Tex.Civ.App. any Antonio resolved in doubts are the nonmov —San writ)). 1968, Sakowitz, Steck, no The trial court is not ant’s favor. Inc. v. 669 review, nor by, 105, bound does it (Tex.1984); the TWC’s 107-08 S.W.2d also see Communications, Inc., of fact. findings Dallas, Direct Doe v. Boys Clubs Greater (Tex. Lunsford, (Tex.1995). Inc. 472, 906 S.W.2d 477 The de writ). App. no The trial whether termination of decision TWC’s —Dallas court rules on the at evidence admitted the wаs supported substantial is a evidence novo,1 Communications, trial question de not the presented evidence of law. Direct Id.; hearing. Mary Lunsford, the TWC Lee Inc. v. 541. S.W.2d at Found, Comm’n, Employment v. Texas summary There is no restriction of the by appel- light objection Supreme “Although 1. In of the lack of 2. The Court has held: lants, findings substantial evidence must be of fact more than and conclusions scintilla, it preponderance mere tieed not be a . compiled during pro- Payday law Law fact, may evidence be substantial ceeding before Mr. Carnes of the were TWC yet greatly preponderate way.” the other Oli court, they properly before the trial were as (Roсkdale Corp. v. Aluminum Am. varez appellee’s attached motion for sum- (em Works), (Tex.1985) mary judgment. added). phasis Borgeson throughout in a tried under of Ms. her em- practice case sion Id.; v. ployment relationship substantial rule. Cruz evidence Boston. Antonio, City San S.W.2d at replete record indeed with evidence The is that no belying contention enforceable con Boston contract existed between New Boston and tend in granting trial court erred Borgeson.3 summary judgment because the act TWC ed unreasonably deciding Borge- also wage claim. This contention pred son’s if contend that a contract did exist be on the a matter of icated contention Borgesоn, it tween New Boston law there was substantial evidence to would violate federal and Texas statutes support disagree. decision. We illegal and therefore be and unenforceable. in summary judgment motion TWC’s First, they point to 1320a- U.S.C.A. verified Ms. Borgeson, cluded affidavits of 7b(b)(1) (2) (West & more Supp.2000), Akins, Mr. Shawn a co commonly to as the Medicаre referred Borgeson’s, tape- and a worker *5 (1) statute, prohibits anti-kickback which Ms. Borge- recorded conversation between entity any person knowingly or from and Dr. Bachynsky regarding son and the com willfully payment or or making accepting agreement. pieces of mission These sum referring patients remuneration for for еvidence, mary judgment together, taken (2) services, federally medical and funded support of employment the existence an to offer or of remuneration payment relationship New Boston Ms. between and ex induce such referrals. States United Borgeson, agree as well as a commission Thompson v. rel. Health Columbia/HCA nursing, mеnt based on recruitment of (S.D.Tex. Corp., F.Supp. care 938 retirement, and living assisted homes. 1996), part, vacated & remanded aff'd brief, In their and Dr. Na- New Boston grounds, part -on other F.8d ples contend that the contract was alleged (5th Cir.1997). Appellants also to point only verbal was made between Ms. and Safety § 161.091 Tex. Health Code Ann. & Borgesоn (Vernon 1992), similarly prohibits which president of neither nor director securing patients of and or solicitation Boston, Borgeson that and the remuneration thereof. independent an rather an contractor than exceptions Both of these statutes have employee. But because New Boston and however, provisions, аnd “safe-harbor” wholly present Dr. failed to the Naples to exempt type marketing that under- any Borgeson’s trial court evidence Ms. Borgeson employee taken Ms. as an contractor, an independent status as be- First, § 1320a- Boston. U.S.C.A. Bachynsky’s controverted affida- sides (West 7b(b)(3)(B) Supp.2000) explicitly ex- vit, they may urged by as TWC from employеe employer and empts an evidentiary through now create record (b)(1) any & amount Subsections Additionally, conclusory their statements. fide paid during the existence of bona a review of the record indicates that Dr. relationship. States employment United Naples, president director of New Boston, through Thompson ex rеl. Bachynsky, played Columbia/HCA (42 F.Supp. at 403 significant hiring Corp., in the Healthcare supervi- role changed wage Borgeson's wage claim it original claim that Dr. when indicated Borgeson's employer. employer designee was Ms. to New Boston. argues TWC altered 1320a-7b(b)(3)(B) § agreement.4 appears employ- U.S.C.A. referred It that the statutory еxception). Additionally, as a relationship Borgeson 42 ment between 1001.952(i) § is a statutory C.F.R. safe- moderately and New Boston was success- provision ful, harbor Congress enacted because a of the facilities re- number protect both employers employees ultimately cruited by Borgeson en- from the type payment of business and tered into contracts with New Boston for practices in which New Boston and Ms. light various medical services. Borgeson engaged. See United States ex statutory various and safe-har- exceptions Thompson rel. Health Columbia/HCA provisions, summary bor and the (42 Corp., care F.Supp. C.F.R. produced by evidence the TWC and Ms. § 1001.952 to as a referred safe-harbor Borgeson, we find no merit the conten- Moreover, regulation). Tex. Health & tion that the contract with Ms. Safety 161.091(e) (f) & also was void and unenforceable. Ann. Code exempt the type marketing services for New Boston further contends
the solicitation of
patients
which Ms.
improperly
that Mr. Carnes of the TWC
Borgeson engaged, “provided the remu
Borgeson’s employer
amended Ms.
desig-
advance,
neration is set in
is consistent
nee from Dr. Naples to New
services,
with the fair market value of the
therefore
proper
New Boston was not a
and is not based on the volume or value of
”
Payday
Law proceedings.
patient referrals....
argues
this alteration
record,
Frоm our
review
it is
*6
violated
rudimentary requirements
the
of
clear that substantial evidence was ad-
process
only
due
it
because
received notice
duced supporting the existence of a bona
conclusion,
of these
their
proceedings at
fide employment
relationship between
$41,461.54
it
deposit
when was notified to
New Boston and
Borgeson
for the
However,
into escrow with the TWC.
a
marketing to and recruitment of various
review of the record reflects that New
retirement,
nursing,
and assisted living
virtually
by
Boston was
represented
homes. The verified affidavits of Ms.
Naples.
Hudgins,
In Davis v.
the Dallas
Akins,
Borgeson and Mr.
as well as the
of
Appeals, discussing
Court
Civil
virtual
affidavit of
illustrаte the
representation, stated:
marketing
existence of a
strategy, directed
by Dr. Naples, president and director of
[the
Under
virtual representation] doc-
trine,
by
to increase revenue
joined
re-
the persons
by
who are not
cruiting
nursing, retirement,
individuals at
name
parties
as
are in a sense before
and assisted living
potential
homes as
pa-
They
the court.
been called quasi
have
tients.
strategy
implemented
parties,
This
and
been
have even
said to be
hiring
as a marketing
parties
legal
con-
substance and
effect.
sultant
patients
to recruit
from
all
these facili-
cases to
repre-
which the doctrine of
ties in
hopes
the
aсquiring
of
contracts
applies
joined
sentation
there must be
as
with a
of
parties persons
fairly represent
number
the facilities for various
who
the
Additionally,
involved,
medical services.
the affida-
interest or
so that it
right
may
vits and recorded
fairly
honestly.
conversation
be tried
It
between
is suffi-
Dr. Bachynsky
Ms. Borgeson
illus-
cient if
parties
the
before the court en-
trate
specifics
fairly
fully
adjudicate
able it
commission
4. The
relationship
commission
was modified at
menl
to run
so as not
afoul of
point during
Borgeson’s employ-
some
federal or state statutes.
parties repre-
although
Bachynsky primarily directed
question involved. The
activities,
Borgeson’s employment
a
he
have
common interest Ms.
sented must
court,
authority by
delegated
those
and conse-
this
Dr. Na-
before
quently
parties
ples,
president
before
court can-
and director of New
if
representatives
not act as
their inter-
no
Accordingly,
Boston.
we find merit
are
antagonistic
ests
to those
would
it
a
contention that was not
New Boston’s
represented.
be
party
proceedings.
to these
(Tex.
Hudgins,
Davis
S.W.
stated,
For the
we affirm the
reasons
writ).
Civ.App.
More re
no
—Dallas
trial court’s judgment.
Court, in
cently
Supreme
the Texas
Motor
Dep’t of Transp.
Bd.
v. El
Vehicle
Texas
of
OPINION ON REHEARING
Assoc., Inc.,
Indep.
Paso
Auto. Dealers
rehearing,
In their motion for
New Bos-
(Tex.1999),
a
announсed three-
Hospital,
ton General
Inc.
James
for
To
prong
representation.
test
virtual
that
fact issue
J.
contend
a
exists
virtually
be
represented
a
must be:
provisions
the “safe harbor”
to whether
judgment,
privity
bound
have its
of
apply
of the federal and state statutes
estate, title,
apparent
or interest
from the
Borgeson.
that
Becky
point
We find
this
record,
identity
must
there
be
of this
proper
immaterial to
resolution
and unnamed
interest between
named
appeal.
parties.5
(quoting
Id. at 110
Cont’l Cas.
imposes
regulatory
Where
statute
(Tex.1987)).
Huizar,
Co. v.
Thus, the Borge- statute did not apply
son, she pari would not have been Naples.
delicto Tabor,
See Am. Nat'l Ins. v. 111 Tex. Co. (1921).
155, 230 S.W. par Where delicto,
ties to contract are not pari may granted
relief be Dean, culpable.
the least See Graham (Tex.1945).
144 Tex.
Borgeson worked with New Boston and to amend the contract so it comply with
would both and state federal Even if the
law. contract consid- could be illegal, it
ered would be unconscionable to
allow Boston to up illegal set its own
conduct to defeat its obligation Borge-
son, not in who was violation the law. motion for rehearing is overruled. DROST,
Richard Appellant, Texas, Appellee.
The STATE of
No. 08-99-00024-CR. Texas,
Court of Appeals of
El Paso.
March
Discretionary Review Refused
Aug.