TEX-FIN, INC., and Texas Workforce Commission, Appellants v. Gustavo E. DUCHARNE, Appellee
NO. 14-15-00267-CV
Court of Appeals of Texas, Houston (14th Dist.).
Opinion filed April 26, 2016
430
pointing Esther sole managing conservator
Anthony Aterno, Austin, TX, Michael C. Falick, Houston, TX, for appellant.
Andrew Reed, G. Scott Fiddler, Houston, TX, for appellee.
Panel consists of Justices Jamison, Donovan, and Brown.
OPINION
Marc W. Brown, Justice
The Texas Workforce Commission (TWC) dismissed Gustavo E. Ducharne‘s wage claim filed against his former employer, Tex-Fin, Inc., under the Texas Payday Act. Ducharne sought review of
I. FACTUAL AND PROCEDURAL BACKGROUND
Tex-Fin is a Houston-based company that manufactures and sells finned pipe and tubes for the heat transfer industry. Ducharne began working for Tex-Fin in 2004 on a salary basis as a sales representative for Latin America. On June 11, 2008, Ducharne signed a written agreement with Tex-Fin, effective January 2008. Sales manager Sean Hall signed the agreement on behalf of Tex-Fin.
The agreement provided Ducharne with a “salary package,” including, among other items: salary in the amount of $75,400.00; a “Fin Tube Sales Bonus” based on .5% of total Latin American and international sales in which Ducharne participated; and an “Air Cooler, Shell & Tube, & Air Cooler Replacement Tube Bundles Sales Bonus” based on .5% of total Latin American and international sales in which Ducharne participated. The agreement provided that Ducharne was “responsible for” “Total Fin-Tube sales” of “$4 million @ 20% Margin.” The agreement also stated: “Total sales for Air Coolers, Shell & Tube, & Air Cooler Replacement Tube Bundles $6 million @ 20% Margin.” The agreement provided “examples” of the calculation of each sales bonus:
Example Fin Tube Sales: $4 million × .5% = $20,000.00 based on 20% margins.
. . .
Example Air Cooler, Shell & Tube, & Replacement Tube Bundles Sales: $6 million × .5% = $30,000.00 based on 20% margins.
Tex-Fin paid Ducharne a sales bonus in December 2008.
On April 22, 2009, Tex-Fin terminated Ducharne essentially for insubordination. According to Ducharne, at the time of his termination, he had generated over $4.5 million in eligible sales for fiscal year 2009. On May 4, 2009, Ducharne sent Sean an email requesting payment for commissions accrued between October 2008 and April 2009, including relating to pending orders, and for severance. That same day, Trey Hall, IT Manager for Tex-Fin, responded because Sean was in the hospital. In his response, Trey stated: “Commissions are calculated and paid in December and commissions are only paid on collected invoices. Commissions are not paid on outstanding invoices or pending orders and commissions will not be paid early.” Trey also stated that Tex-Fin did not owe Ducharne any severance pay.
In August 2009, Ducharne filed a Texas Payday Act claim against Tex-Fin with the TWC, for unpaid commissions and unpaid severance. The TWC‘s assigned investigator initially determined that Ducharne was not entitled to unpaid bonuses or unpaid severance pay and dismissed his wage claim. Ducharne appealed this deci-sion
In making its ruling, the tribunal cited
- Ducharne is not entitled to any unpaid wages from Tex-Fin under the Texas Payday Law.
- “Although [Ducharne] seeks payment of commissions, . . . [Tex-Fin] truly had an agreement with [Ducharne] for payment of bonus pay for his sales.”
- “The evidence established that the bonus program was an annual program, calculated on sales made in the fiscal year and paid in December.”
- “[T]here is no evidence that [Tex-Fin] ever intended to pay the bonus based on a partial year of work or to pay the bonus before the due date in December.”
- “The evidence indicates that [Ducharne] is not entitled to bonus or commission pay.”
- “The monies claimed are not due under the Texas Payday Law and the Texas Payday Rules.”
Ducharne appealed this decision to the TWC, which affirmed the dismissal of his wage claim in a 2-to-1 decision.
Ducharne timely filed a petition in district court against Tex-Fin and the TWC for judicial review of that portion of the TWC‘s decision dismissing his claim for unpaid bonuses. See
Tex-Fin and the TWC now appeal. They argue the same first issue—that the trial court failed to review the TWC‘s deci-sion
II. ANALYSIS
A. Jurisdiction
As a threshold matter, we consider whether we have jurisdiction over this appeal from the trial court‘s “final summary judgment.” “[T]he general rule, with a few mostly statutory exceptions, is that an appeal may be taken only from a final judgment.” Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex.2000).
[W]hen there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties. . . . An order that disposes of claims by only one of multiple plaintiffs or against one of multiple defendants does not adjudicate claims by or against other parties. An order does not dispose of all claims and all parties merely because it is entitled “final“, or because the word “final” appears elsewhere in the order, or even because it awards costs. . . . Rather, there must be some other clear indication that the trial court intended the order to completely dispose of the entire case.
To determine whether an order disposes of all pending claims and parties, it may be necessary for the appellate court to look to the record in the case. . . . [I]f the record reveals the existence of parties or claims not mentioned in the order, the order is not final.
Id. at 205-06. Whether a judicial decree is a final judgment must be determined from its language and the record in the case. Id. at 195; Philips v. McNease, 467 S.W.3d 688, 693 (Tex.App.--Houston [14th Dist.] 2015, no pet.).
First, the language in the trial court‘s judgment supports that it is final. The order in question is entitled “FINAL SUMMARY JUDGMENT.” “While a particular title is not dispositive nor is particular language required, it is an indication of the intent of the trial court in issuing the Order.” Futch v. Reliant Sources, Inc., 351 S.W.3d 929, 932-33 (Tex.App.--Houston [14th Dist.] 2011, no pet.) (title “FINAL SUMMARY JUDGMENT” is language that indicates finality). The order goes on to deny Tex-Fin‘s motion for summary judgment, deny the TWC‘s motion for summary judgment, and grant “in part” Ducharne‘s cross-motion for summary judgment. However, directly following the “in part” language, there is a handwritten superscript asterisk, which indicates and corresponds with a typed rider on a second page. The record indicates this second page was stapled to first page of the court‘s order. The rider states that the TWC‘s decision denying and dismissing Ducharne‘s wage claim is reversed and set aside. It then recites: “Therefore, the Court ORDERS that the case be REMANDED to the [TWC] for further proceedings to determine the amount [sic] wages due to Plaintiff Gustavo Ducharne in light of the Court‘s ruling. This is the final judgment; it disposes of all claims and parties, and is appealable.” This last sentence essentially tracks the type of “clear and unequivocal” finality
The record also supports that the judgment is final. In his cross-motion for summary judgment, Ducharne presented the following ground: the TWC did not apply the correct legal standard to the undisputed facts and therefore the TWC‘s decision to dismiss his wage claim as to bonuses was not supported by substantial evidence. He further asserted: “Because Ducharne met the requirements of the written Contract (which did not require he work the entire year), Ducharne is entitled to commissions earned while employed” in the amount of $22,922.96, based on almost $4.6 million in sales. Both Tex-Fin and the TWC argued in their summary judgment motions that the TWC‘s decision to dismiss Ducharne‘s wage claim was supported by substantial evidence. After a summary judgment hearing,3 Tex-Fin and Ducharne each submitted additional briefing. Tex-Fin argued that the trial court either could affirm the TWC‘s decision or reverse and remand the entire case. Ducharne argued that the trial court either could reverse and render (Ducharne‘s preference) or reverse and remand. In its judgment, the trial court reversed and set aside the TWC‘s decision. The trial court further ruled that the TWC, on remand, and not the trial court, should conduct further proceedings to determine the amount of wages due to Ducharne. Both Tex-Fin and the TWC filed motions for new trial with regard to the trial court‘s authority upon reversal. Tex-Fin maintained its position that the court only could remand the entire case. The TWC argued that the trial court could reverse and render an award of wages but not remand. The record confirms that the determination of the amount of Ducharne‘s unpaid wages was placed squarely before the court, which refused to decide the issue.
Regardless of whether its adjudication by remand was erroneous or lacked an adequate legal basis, the trial court‘s judgment unambiguously expresses its “intent to finally dispose” of the issue of Ducharne‘s wage determination and is not interlocutory. See Lehmann, 39 S.W.3d at 200, 204, 206 (“erroneous, but final” judgment is appealable); Philips, 467 S.W.3d at 693 (“If the judgment does not dispose of every pending claim but is ‘clearly and unequivocally final on its face, the judgment is not interlocutory merely because the record does not afford a legal basis for the adjudication. [Lehmann] at 206. Rather, the judgment is final but erroneous, and it must be reversed. Id.“); S. Mgmt. Servs., Inc. v. SM Energy Co., 398 S.W.3d 350, 358 (Tex.App.--Houston [14th Dist.] 2013, no pet.) (“If the order does not dispose of every pending claim but is ‘clearly and unequivocally’ final on its face, the order is not interlocutory merely because the record does not afford a legal basis for the adjudication. [Lehmann] at 206. Rather, the order is final but erroneous. ‘In those circumstances, the order must be appealed and reversed.’ Id.“). The language of the trial court‘s judgment does not, in any
Therefore, we conclude that the judgment is final and appealable, and proceed to the merits of Tex-Fin‘s and the TWC‘s issues.
B. Texas Payday Law
Ducharne filed his wage claim with the TWC pursuant to the Texas Payday Act. See
(a) Wages paid on commission and bonuses are due according to the terms of:
- an agreement between the employee and employer; or
- an applicable collective bargaining agreement.
(b) An employer shall pay wages paid on commission and bonuses to an employee in a timely manner as required for the payment of other wages under this chapter.
(a) For purposes of
§ 61.015 of the Act :
- Commissions or bonuses are earned when the employee has met all the required conditions set forth in the applicable agreement with the employer. To change an agreement, there must be prior notice as to the nature and effective date of the changes. Changes to written agreements shall be in writing.
- Commissions or bonuses are due to be paid, in a timely manner, according to the terms specified in an agreement between an employer and an employee. The terms should specify the time intervals or circumstances (or combinations thereof) that would cause commissions or bonuses to become payable, such as, but not limited to, weekly, monthly, quarterly, when sales transactions are recorded, upon buyer‘s remittance, etc.
(b) Unless otherwise agreed, the employer shall pay, after separation, commissions or bonuses earned as of the time of separation.
(c) Commissions or bonuses due after separation from employment are payable based on the routine or practice specified in the agreement when the employee was employed, or on any special agreement made between the employee and the employer upon separation.
(d) Draws against commissions or bonuses may be recovered from the current or any subsequent pay period until fully reconciled.
C. Substantial evidence, de novo standard of review
The trial court reviews the TWC‘s decision on wage claims by trial de
“[T]he issue is whether the evidence introduced before the trial court shows facts in existence at the time of the [TWC‘s] decision that reasonably support the decision.” Id. (quoting Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex.1998)); Tex. Workforce Comm‘n v. City of Houston, No. 14-07-00407-CV, 2009 WL 396208, at *3 (Tex.App.--Houston [14th Dist.] Feb. 19, 2009, no pet.) (mem.op.) (“The trial court bases its decision on the evidence admitted at the trial de novo, not the evidence presented at the commission hearing.“). On controverted issues of fact, we may not substitute our judgment for that of the TWC. McCrory, 431 S.W.3d at 143. The TWC‘s decision may be set aside only if it was made without regard to the law or the facts and, as a result, was unreasonable, arbitrary, or capricious. Id.; see Collingsworth Gen. Hosp., 988 S.W.2d at 708.
Trial courts may grant summary judgments in cases tried under the substantial evidence rule, and appeals under substantial evidence review are uniquely suited to summary judgment because the only issue before the court is a question of law. Blanchard v. Brazos Forest Prods., L.P., 353 S.W.3d 569, 573 (Tex.App.--Fort Worth 2011, pet. denied) (citing Arrellano v. Tex. Emp‘t Comm‘n, 810 S.W.2d 767, 771 (Tex.App.--San Antonio 1991, writ denied)). “There is no restriction on summary judgment in a case tried under the substantial evidence rule.” JMJ Acquisitions Mgmt., LLC v. Peterson, 407 S.W.3d 371, 374 (Tex.App.--Dallas 2013, no pet.).
In a summary judgment case, the issue on appeal is whether the movant met his burden to establish that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law.
By granting summary judgment to Ducharne, the trial court necessarily held that
D. The June 2008 agreement
In the trial court below, Ducharne argued one ground for summary judgment—the TWC did not apply the correct law from the Payday Law and the interpretation of contracts to the undisputed facts and, therefore, the TWC‘s decision was not reasonably supported by substantial evidence. On appeal, Tex-Fin and the TWC argue that the trial court failed to conduct its judicial review of the TWC‘s decision to dismiss Ducharne‘s wage claim by trial de novo with substantial evidence as the standard of review and that the TWC‘s decision was supported by substantial evidence.
We focus our review on the written agreement between Tex-Fin and Ducharne, which was submitted to the district court in support of the motions for summary judgment. Because under the Payday Act, wages on bonuses and commissions are due according to the “terms of [] an agreement between the employee and the employer,” see
When interpreting a contract, our primary concern is to ascertain and give effect to the written expression of the parties’ intent. Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 333 (Tex.2011) (citing J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex.2003)). By this approach, we “strive to honor the parties’ agreement and not remake their contract by reading additional provisions into it.” Gilbert Tex. Constr., L.P. v. Underwriters at Lloyd‘s London, 327 S.W.3d 118, 126 (Tex.2010). The parties’ intent is governed by what is written in the contract, not by what one side contends they intended but failed to say. Id. at 127. “[I]t is objective, not subjective, intent that controls.” Matagorda Cty. Hosp. Dist. v. Burwell, 189 S.W.3d 738, 740 (Tex.2006) (per curiam). We therefore give terms their plain and ordinary meaning unless the contract indicates that the parties intended a different meaning. Dynegy Midstream Servs., Ltd. P‘ship v. Apache Corp., 294 S.W.3d 164, 168 (Tex.2009). We examine the writing as a whole to harmonize and give effect to all of the contract‘s provisions so that none is rendered meaningless or surplusage. J.M. Davidson, 128 S.W.3d at 229; Coker v. Coker, 650 S.W.2d 391, 393-94 (Tex.1983). We also bear in mind the particular business activity to be served, and when possible and proper to do so, we avoid a construction that is unreasonable, inequitable, and oppressive. Frost Nat‘l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 312 (Tex.2005) (per curiam).
If a contract is not ambiguous, courts must enforce it as written without considering parol evidence for the purpose of creating an ambiguity or giving the contract “a meaning different from that which its language imports.” David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex.2008) (per curiam). The contract is unambiguous if it can be given a certain or definite meaning as a matter of law. El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 806 (Tex.2012) (citing Italian Cowboy, 341 S.W.3d at 333). A contract is not ambiguous simply because the parties advance conflicting interpretations.5 Columbia Gas Transmission Corp. v. New Ulm Gas, Ltd., 940 S.W.2d 587, 589 (Tex.1996). If the contract is subject to more than one reasonable interpretation after applying the pertinent rules of contract construction, then the contract is ambiguous and there is a fact issue regarding the parties’ intent. El Paso Field Servs., 389 S.W.3d at 806 (citing J.M. Davidson, 128 S.W.3d at 229).
1. No requirement that Ducharne work for a full year
Here, the agreement comprises a proposal regarding Ducharne‘s “salary package“—extended by Tex-Fin and accepted by Ducharne. The agreement, effective January 2008, states that Tex-Fin wants to “continue building [its] partnership together” and “look[s] forward to working with [Ducharne] in the future growth of Tex-Fin.” The contract plainly states: “Fin Tube Sales Bonus will be based on .5% of total Latin American. [sic] .5% of International sales that [Ducharne] participate[s] in.” The agreement also plainly states: “Air Cooler, Shell & Tube, & Air Cooler Replacement Tube Bundles Sales Bonus will be based on .5% of total Latin American Sales. [sic] .5% of International Sales [Ducharne] participate[s] in.” The contract therefore requires that Ducharne “participate in” sales of certain categories of products and that those sales be “Latin American” or “International” in nature as conditions to receive a “sales bonus.”
The agreement provides: “Total Fin-Tube sales responsible for $4 million @ 20% Margins.” “Responsible” means “having an obligation to do something . . . as part of one‘s job.” New Oxford American Dictionary 1488 (3d ed.2010). That is, Ducharne was obligated to accomplish $4 million in total Fin Tube sales at a 20% margin for Tex-Fin. The agreement also states: “Total sales for Air Coolers, Shell & Tube, & Air Cooler Replacement Tube Bundles $6 million @ 20% margins.” Considering this provision with reference to the whole instrument, the reasonable import is that Ducharne also was “responsible for” $6 million in total sales of Air Cooler, Shell & Tube, & Air Cooler Replacement Tube Bundles at a 20% margin. Otherwise, this provision would be rendered meaningless. See Coker, 650 S.W.2d at 394. Therefore, the contract provides another required condition, the minimum amount of the sales required to earn a “sales bonus” on either covered category of products—$4 million for total Fin Tubes, and $6 million for total Air Coolers, Shell & Tube, & Air Cooler Replacement Tube Bundles. Further, Ducharne was to accomplish such sales at 20% margins.
We do not, however, find within the contract any language conditioning Ducharne‘s earning any sales bonus on his remaining employed for an entire year, whether fiscal or calendar, of work. See
The TWC argues that the letter agreement “only addressed annual issues, such as compensation, vacation, sick leave, and expense accounts,” and that “the amounts of the examples stated in the agreement were consistent with annual sales.” We do not find this argument persuasive—again, because the plain language in the agreement does not condition earning a sales bonus on any annual employment requirement. Moreover, the “examples” in the agreement simply used the minimum required sales amounts to illustrate how the bonus calculation would work, and say nothing to condition any bonus on such sales having to take place over the course of a complete year.
2. Beyond the written agreement
Aside from the contract, Tex-Fin and the TWC rely on Sean‘s testimony in his affidavit that there was no company policy and no separate agreement with Ducharne to pay a bonus based on a partial year or upon the termination of an employee.6 Sean also stated that Tex-Fin‘s policy and practice was bonuses are determined annually, based on sales from the fiscal year, and are paid in December. Ducharne points to the May 4, 2009 email from Trey, which stated that commissions are calculated and paid in December; only paid on collected invoices, not outstanding invoices or pending orders; and will not be paid early.
If a contract is unambiguous, the parol evidence rule generally precludes consideration of evidence of prior or contemporaneous agreements. Haden, 266 S.W.3d at 451. Prior or contemporaneous agreements that conflict with the contract at issue are inadmissible and without effect. Id.; Hua Xu v. Lam, No. 14-13-00730-CV, 2014 WL 5795475, at *11 (Tex.App.--Houston [14th Dist.] Nov. 6, 2014, no pet.) (mem.op.) (“Such evidence cannot be considered by the court when it construes the contract, even if the evidence is admitted without objection.“); see Boondoggles Corp. v. Yancey, No. 01-05-00185-CV, 2006 WL 2192708, at *5 (Tex.App.--Houston [1st Dist.] Aug. 3, 2006, no pet.) (mem.op.) (concluding that “intent” testimony allegedly conditioning employee‘s bonus on business improving did not alter and conflicted with terms of written contract, which stated benefits included monthly bonus of 3% of net sales); see also Tex. Workers’ Comp. Ins. Fund, 941 S.W.2d at 334 (in severance context, concluding oral condition that employee sign release agreement before receiving severance “obstructs the operation of an otherwise clearly understandable written agreement” only conditioning employee‘s severance on her return of company equipment and documents). To the extent the TWC relied on parol evidence to conclude there was no evidence that Tex-Fin in-tended
Even viewing the summary judgment evidence in the light most favorable to, and indulging every reasonable inference in favor of, Tex-Fin and the TWC, and keeping in mind the court may not substitute its judgment for that of the TWC, we conclude the TWC incorrectly applied the law because the written agreement does not condition Ducharne‘s ability to earn a sales bonus on his working for a full year. Cf. Burkard v. ASCO Co., 779 S.W.2d 805, 806 (Tex.1989) (per curiam) (noting that “[i]n granting Burkard the right to a bonus, the contract did not condition that right on Burkard‘s continued employment for an entire year“).7
However, extrinsic evidence may be admissible to “clarify, explain, or give meaning to terms of a contract that are facially incomplete.” See Boondoggles Corp., 2006 WL 2192708, at *10. Therefore, to the extent parol evidence demonstrates a prior or contemporaneous agreement collateral to and consistent with—that does not vary or contradict—the contract, it can be considered. Haden, 266 S.W.3d at 451 (describing collateral and consistent exception to parol evidence rule); Hua Xu, 2014 WL 5795475, at *11 (same).
Here, such parol evidence supplies some missing terms regarding “the time intervals or circumstances (or combinations thereof) that would cause commissions or bonuses to become payable, such as, but not limited to, weekly, monthly, quarterly, when sales transactions are recorded, upon buyer‘s remittance, etc.” See
Therefore, viewing the summary judgment evidence in the light most favorable to, and indulging every reasonable inference in favor of, Tex-Fin and the TWC, and keeping in mind the court may not substitute its judgment for that of the
Because the TWC made its overall decision and dismissed Ducharne‘s wage claim as to unpaid bonuses based on a misapplication of the law—Tex-Fin‘s lack of intent to pay Ducharne a bonus based on a partial year of work—we conclude that the trial court properly conducted its review by trial de novo based on substantial evidence and was correct in setting aside the TWC‘s decision because it was not supported by substantial evidence.
We overrule Tex-Fin‘s first issue and the TWC‘s first issue.
E. The trial court‘s remand to the TWC
To a certain extent, all the parties take issue with the trial court‘s remand here. In its second issue, Tex-Fin argues that the trial court only could issue a general remand and should not have instructed the TWC to determine an amount of wages owed to Ducharne. In contrast, the TWC contends that the trial court erred by remanding to the TWC at all because “the only alternative available was to determine an award of wages.” Finally, according to Ducharne, because the trial court reversed the TWC‘s decision, and he proved up the actual amount owed, the trial court should have rendered judgment rather than remanded.
Here, instead of filing a common-law action, Ducharne chose to pursue his Payday Act wage claim in TWC proceedings, pursuant to TWC rules and procedures. See Holmans v. Transource Polymers, Inc., 914 S.W.2d 189, 194 (Tex.App.--Fort Worth 1995, writ denied); see also Tricon Tool & Supply, Inc. v. Thumann, 226 S.W.3d 494, 508 (Tex.App.--Houston [1st Dist.] 2006, pet. denied) (“The Payday Act is not an employee‘s sole and exclusive remedy for a claim based on past wages, but is, rather, an alternative remedy that is cumulative of remedies under the common law.“). After the assigned investigator issued his dismissal, Ducharne appealed this initial order to a TWC appeals tribunal and, after exhausting his administrative remedies, appealed the TWC‘s final order to the trial court. See
According to Tex-Fin and Ducharne,
If the law authorizes review of a decision in a contested case under the substantial evidence rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion but:
(1) may affirm the agency decision in whole or in part; and
(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
(A) in violation of a constitutional or statutory provision;
(B) in excess of the agency‘s statutory authority;
(C) made through unlawful procedure;
(D) affected by other error of law;
(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or
(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Further, hearings conducted pursuant to subchapter D, Wage Claims, of title 2 or
Consistent with these distinct statutory schemes, we have not located any case involving an appeal from a final TWC or Texas Employment Commission (TEC)9 order in the context of a wage or unemployment compensation benefits claim that applies
Accordingly, we conclude that
Therefore, we overrule Tex-Fin‘s second issue, but sustain the TWC‘s second issue.
F. Amount of Ducharne‘s unpaid wages
In his brief, Ducharne argues that “[t]he summary judgment record before the trial court, upon which the trial court was asked to and was statutorily empowered to decide, demonstrated the bonus/commissions in the amount of $22,922.96 to be undisputed.” He therefore requests that this court render judgment in his favor in such amount.
In any summary judgment appeal, the issues reviewed by this court must have been actually presented to and considered by the trial court. Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992); Wright v. Gundersen, 956 S.W.2d 43, 46 (Tex.App.--Houston [14th Dist.] 1996, no writ). Here, assuming without deciding that Ducharne‘s motion presented a summary judgment ground that as a matter of law he met all the conditions set out in his sales contract to earn a sales bonus of $22,922.96, the trial court expressly did not consider this issue, but rather (erroneously) remanded it to the TWC.
Moreover, under rule 25.1 of the Texas Rules of Appellate Procedure, any “party who seeks to alter the trial court‘s judgment . . . must file a notice of appeal.”
We overrule Ducharne‘s request.15
III. CONCLUSION
Accordingly, we reverse the portion of the trial court‘s final summary judgment remanding the case to the TWC for further proceedings to determine the amount of wages due to Ducharne. We affirm the remainder of the judgment and remand for further proceedings in accordance with this opinion.
Notes
“Wages” means compensation owed by an employer for:
(A) labor or services rendered by an employee, whether computed on a time, task, piece, commission, or other basis; and
(B) vacation pay, holiday pay, sick leave pay, parental leave pay, or severance pay owed to an employee under a written agreement with the employer or under a written policy of the employer.
(a) A party who has exhausted the party‘s administrative remedies under this chapter, other than a motion for rehearing, may bring a suit to appeal the order.
(b) The suit must be filed not later than the 30th day after the date the final order is mailed.
(c) The commission and any other party to the proceeding before the commission must be made defendants in the suit.
(d) The suit must be brought in the county of the claimant‘s residence. If the claimant is not a resident of this state, the suit must be brought in the county in this state in which the employer has its principal place of business.
(e) An appeal under this subchapter is by trial de novo with the substantial evidence rule being the standard of review in the manner as applied to an appeal from a final decision under Subtitle A, Title 4.