*1 FEED, INC., Appellant, POSTIVE GUTHMANN, Appellee.
Marcus
No. 01-98-00485-CV. Texas, Appeals
Court (1st Dist.).
Houston
Oct.
findings upon
supplemented
ten
the order was based.
no action
record
to have the
Acosta,
Rather,
Facts below, in the court prior In a action unemployment Postive sued to set aside Guthmann, awarded a former Pos- benefits employee. prevailed Postive in that tive again and then in action sued Guthmann court. the same trial alleged grounds recovery. two for The tort, in in the form of sought recovery first costs, plus and damages for fees that punitive damages, grounds unemployment had claimed the Guthmann in had thus “abused benefits bad faith and ground In its second process.” the civil Bellville, Smith, appel- Charley L. acknowledged that recovery, Postive lant. any such precluded re- the Labor Code2 Jr., Wharton, Maher, appel- John C. Guthmann, asked the covery against but lee. the bar unconstitu- trial court to declare answer asserted a tional. Guthmann’s COHEN, Panel consists of Justices denial, estoppel as an affirmative general HEDGES, and TAFT. defense, and for sanctions for claims
groundless
pleadings.
and frivolous
MAJORITYOPINION
summary judgment
sought
Guthmann
was entitled to
grounds:
two
that he
TAFT,
TIM
Justice.
rule
the new “no evidence”
prevail under
Civ. P.
(Postive),1
Feed,
summary judgments,
appeals
Inc.
a
Postive
Tex.R.
166a(i);
had had not
that Postive
and
summary judgment granted
no-evidence
damages,
any evidence
Marcus
forward
appellee,
on the motion of
Guth-
nor stated a claim on which
attempt
an
underlying
mann. The
suit is
did not
motion
costs,
relief. The
prior
from a
by Postive to recover
the constitu-
challenge to
La-
address Postive’s
from which the
unemployment
responding
In
tionality
207.007.
exempts employees. We ad-
bor Code
(1)
many
motion,
reasserted
to the
Postive
trial erred:
dress whether
and noted
petition,
from its
allegations
without
granting
summary judgment
special excep-
filed
had not
opportunity
Postive
permitting
further
(2)
Postive
pleadings.
tions to those
granting sum-
pleadings;
its
amend
(3)
apply,
did not
merits;
the Labor Code
contended
mary judgment on the
un-
seeking relief
was not
not because Postive
summary judgment on issues
granting
Code,
Finally,
in tort.
der the
but
by shifting
in
Labor
addressed
the motion
in
“no other vehicle
argued
in
it had
part
affirm
proof.
the burden of
Guthmann,
Like
justice.”
which to seek
part.
and reverse and remand
(a)
claiming
benefits
An individual
granting
1. The order
charged
a fee in
this subtitle
styled “Positive Feed” rather than "Postive
by:
proceeding under this subtitle
to reflect
We order that it be reformed
Feed.”
(1)
representative of
or a
the commission
"Postive Feed."
commission; or
(2)
of a court.
a court or an officer
Code
2. Section 207.007 of the Texas Labor
(Vernon
§ 207.007
Tex. Labor Code Ann.
part:
reads in
1996).
Postive did not refer at all to its
Guthmann did not address
constitutionality
to the
207.007. Postive’s
to the
section
erred,
The trial court
statute.
signed
The trial court
an order
therefore,
dismissing
the entire case.
things.”
Guthmann’s motion “in all
In ad-
Gilchrist,
Coop.,
Elec.
Inc. v.
See Bandera
*3
dition, the court’s order recited “that the
336,
(Tex.1997); Mafrige,
946 S.W.2d
337
allegations by
hereby
are
dis-
[Postive]
Summary Judgment Granted More appeals Mafrige); on remand in see Ross Requested Relief Than Co., Arkwright v. Mut. Ins. 119, (Tex.App. 123 Dist. [14th — Houston portion error, In a point of its third of writ). 1994,no argues Postive the trial erred by granting summary judgment on issues not Accordingly, we the claim that address raised Guthmann’s motion for in seeking summary Guthmann relied on judgment.3 agree. judgment. Because Guthmann’s motion summary judgment for did not address The trial court’s order sum constitutionality Postive’s to mary judgment does not contain a true 207.007, however, we not “Mother disposes Hubbard” clause that of portion point address the of Postive’s third Ross, all Mafrige claims. See 866 argues of error in which it that the statuto 590, (Tex.1993); S.W.2d 592 E. North In ry protect bar does not Guthmann from dep. 893, Aldridge, Sch. Dist. v. process’ torts “such as ‘abuse of or ‘mali (Tex.1966). 897-98 clearly pur The order ” prosecution.’ cious See Tex.R. Civ. P. final, however, ports to be and Postive 166a(c) (“Issues not expressly presented to treated the judgment timely as final in motion, trial answer court written perfecting appeal, objection this without response or other cannot be considered us, Guthmann. From the record before reversal.”); grounds City appeal as for we conclude that the trial court and the of Auth., Houston v. 589 Clear Creek Basin parties contemplated finality. Inglish See (Tex.1979) 671, (same); 676 see S.W.2d Bank, v. Union State 811 Ltd., Hotel, also Summers v. Fort Crockett (Tex.App. 27 [1st S.W.2d — Houston denied) claims, however, (rejecting point Dist.] In writ disposing of all presented in granting summary opposi the trial court’s order court summary judgment). clearly grants more relief than tion to motion remand, therefore, requested. strictly In relying We will reverse prohibition on the disposition section 207.007 of the of Postive’s unresolved ehal- remaining portions points 3. We address the of Pos- first and of error. second point analysis tive’s third of error in of its our Am., 110, 111 Sec. Ins. Co. lenge to section writ). 207.007, (Tex.App. Antonio Mafrige Bandera — San Thus, we sustain mandates.4 Postive’s summary judg- Guthmann moved point part. third bring on Postive’s failure to based any evidence and its damages forward Theory Recovery Tort failure a claim on to state above, relief. As noted In its first and second reflect that it premised error, Postive maintains the trial court costs and damages its claim for in granting erred required expend fees was failure to state a cause of without unemployment to set the award of aside affording opportunity to re- *4 presented benefits to Guthmann. Postive point plead. Postive’s second of error Postive’s Inglish, the affidavit of Robert “no challenges the trial court’s evidence” Board, damages proving of the Chairman of portion resolution. In the its third time in the of fees and form above, point of error not addressed prepare to employees had to take off work impermissibly the maintains trial court did not trial. Guthmann and attend proof. the of We address shifted burden negate of tort cause the existence Postive’s together. these issues judg- motion for of action. His merely concluded Postive did judgment A summary “should court present claim on which the trial pleading deficiency not be based on a that could relief. by could be amendment.” In re cured of To the trial court’s uphold (Tex.1994) B.I.V., 12, 13-14 870 S.W.2d motion for Guthmann’s curiam). Summary judgment is not (per us to require conditions would these proper adequacy the vehicle to the test Pos- recognize hold that Texas does not party’s pleadings, the other which should See, v. e.g., action. Hendricks tive’s tort exceptions. attacked by special be See Thornton, 348, (Tex.App. 371 Dep’t Herring, v. 513 Texas Corrections denied). 1998, Guth- pet. —Beaumont While 6, A party 10 who S.W.2d mann there is no cause asserts that summary judgment solely on moves costs employer action to recover party’s pleadings the basis of other the claim, employee’s unemployment from an in the accept must all facts and inferences authority reasoning to he no or brings light as true in the most favor pleadings Nevertheless, we position. support his and opposing party, any able to the defects clear, from legislative think the intent is appear in the nonmovant’s must of the plain language of section 207.007 the Trunkline by to be incurable amendment. Code,5 that Postive should Co., v. 722
LNG Co. Trane Thermal statute under circumvent the allowed to 722, (Tex.App [14th 724 . -Houston malicious some tort “akin to new n.r.e.). 1986, well writ ref'd It is Dist.] prosecution.” settled, however, that a party plead affirmatively conditions, hold that the negating out of court these we itself Under decided have Family properly E.g., cause of Saenz v. its action. not, however, judgment, him to which awards Mafrige us affirm the 4. and Bandera do com- Having sanctions waived his pel we coun- sanctions. remand as to Guthmann's court, here waived it and the claim in terclaim for sanctions. While trial court affirmance, counterclaim, extinguished seeking Guthmann expressly deny this did not approved judg- claim. requested and obtained, thus abandoned the ment he 2, Moreover, appeal, supra See at 880. he note counterclaim. asks
883 (Tex. 1990); Texas Nat’l Guard tort action does not exist 715 alleged Postive’s McCraw, 126 S.W.2d Accordingly, Armory we overrule Pos- Board v. Texas. (Tex. 1939). Thus, of error and had tive’s first and second Guthmánn portion point third of error not its was consti prove no burden to statute analysis. addressed our first prove Positive had the to tutional. burden had the
it was unconstitutional. Postive prove burden to was unconstitutional. Conclusion Hill, See Robinson portion affirm the of the trial court’s (Tex. 1974) (In to declare un suit statute precluding attempt Postive’s to constitutional, statute’s plaintiff asserting prohibition circumvent the Labor Code’s unconstitutionality prove bears burden and re- being employees costs borne that); Razis, Blair v. remand for fur- verse writ) (In (Tex. 1996, no de App. Tyler— proceedings concerning ther claratory judgment defendant as declaratory challenging claim for relief unconstitutionally serting statute’s bears statutory prohibi- that.). prove burden tion. Moreover, Postive’s claim of unconstitu- tionality is in the nature of an affirmative *5 COHEN, Justice, B. MURRY defense, on it have the burden which would concurring dissenting. Al- proof under Tex. R. Civ. P. 94. agree I my colleagues’ with decision lawsuit, though this Guth- overruling Postive’s first and second as a com- mann asserted section 207.007 however, believe, I error. that the third defense, to that plete and Postive’s defense point should also be overruled and statutory unconstitutionality, bar is Therefore, judgment respect- affirmed. I an any constituting is “... other matter fully dissent. avoidance or affirmative defense.” See Unconstitutionality is Tex. R. Civ. P. 94. majority opinion The states that Guth- the doctrine offered Postive to avoid mann’s motion did not address Postive’s the effect of labor Code section 207.007. to the of the Thus, proof on Postive had the burden of majority statute. The concludes the trial unconstitutionality under rule the issue of in dismissing court erred the case without statutory as well under the and com- ruling expressly in that I respect- issue. mon law. fully disagree. majority pro- “for further The remands Guthmann addressed Postive’s claim de- ceedings concerning Postive’s constitutionally to the of the statute. He the constitu- claratory challenging relief by asking winning judg- did so for and a I that is tionality of think [art. 207.007].” That ment based statute. is a request a mistake because Guthmann, ruling by and a assertion that the statute is declaratory judge, that the statute is constitu- is not a cause unconstitutional tional. but, rather, remedy. procedural a mere is statutory law and common Under both declaratory It is well settled that statutes, one, law, including are all this vehi merely procedural act is a constitutional, and the presumed burden decision. presenting grievances cle for i.e., challenger, is on the show otherwise Assoc., Pennington Kadish v. Postive. Tex. Code Ann. Gov’t (Tex. (Vernon 311.021(1) 1998); App [1st Dist.] Brady v. § . -Houston writ). declaratory judgment The Appeals, Fourteenth Court rights; act not confer any does substantive Thus, only. it seems is remedial Id. Wayne THOMPSON, Appellant, Ronald that,
inescapable by granting judg- to me 207.007, judge on section based remedy declaring very denied Texas, Appellee. The STATE of Thus, no same statute unconstitutional. declaratory “claim for relief” remains No. 01-98-00742-CR. pending. Texas, of Appeals
Court Dist.). (1st HEDGES, Houston Justice, concurring ADELE dissenting. 14, Oct. majori respectfully I dissent from the ty’s claim. disposition of Postive’s tort It specifically that Guthmann clear did tort to mali
address Postive’s “akin sum prosecution”
cious his motion for Therefore,
mary judgment. it was trial court to the claim rule on judgment. v. South McConnell
side,
What Guthmann should have done was special urging
have filed exceptions
Postive did not state a claim on which Summary judg granted.
relief could be *6 special excep not a
ment is substitute for B.I.V., In the
tions. See Interest of 12, 13-14 that, majori- be as the
While true
ty legislative “we think opines, intent clear, plain language from the
207.007 of the Labor circumvent the
should allowed to statute under some new tort ‘akin ” prosecution,’
to malicious neither have before us question
court nor we There- proper procedural posture.
fore, I sustain first and would and reverse and
second
remand entire case.