Opinion
NO. 09-18-00415-CV
07-23-2020
MICHAEL GUSTAFSON, Appellant v. COMPLETE MANUFACTURING SERVICES INC., RONALD SMITH AND OLETHA SMITH, Appellees
On Appeal from the 284th District Court Montgomery County, Texas
Trial Cause No. 17-09-10868-CV
MEMORANDUM OPINION
Appellant Michael Gustafson sued Appellees Complete Manufacturing Services, Inc. ("CMS"), Ronald Smith, and Oletha Smith for injuries he sustained while on the job. Locke Technical Services, Inc. ("Locke") employed Gustafson and subsequently assigned him to work for CMS, on whose premises the accident occurred. Gustafson alleged CMS was a non-subscriber to workers' compensation insurance and asserted claims of negligence and gross negligence against Appellees. He further sought to pierce the corporate veil of CMS and hold the Smiths individually liable for his damages. Appellees filed a motion for summary judgment asserting that CMS was entitled to the exclusive remedy defense claiming Locke "leased" Gustafson to CMS and cited to the Staff Leasing Services Act (SLSA). See Act of May 18, 2013, 83rd Leg., R.S., ch. 117, § 29(b), 2013 Tex. Sess. Law. Serv. 495, 507 (codified at Tex. Lab. Code Ann. §§ 91.001-.062). The trial court granted Appellees' summary judgment.
Ronald Smith is the owner of CMS, and Oletha Smith is his wife.
In five issues, Gustafson challenges the summary judgment as to his negligence claims and the corporate veil-piercing theory. In his first issue, Gustafson disputes the availability of and Appellees' entitlement to the workers' compensation exclusive remedy defense under the SLSA, as amended in the Professional Employer Organizations Act (PEOA). See id. In his second and third issues, Gustafson challenges the contention that his status as a temporary worker or borrowed servant entitled CMS to the exclusive remedy defense, pointing to CMS's non-subscriber status. In his fourth issue, Gustafson asserts the corporate veil should be pierced, and the Smiths should be held individually liable. His last issue addresses his prima facie case of negligence. Because we determine genuine issues of material fact remain, we reverse the summary judgment and remand to the trial court for further proceedings.
Gustafson pleaded a gross negligence claim, and despite Appellees' failure to address that claim in the summary judgment motion, the trial court granted summary judgment on that claim. However, Gustafson states in his brief he is not appealing the summary dismissal of his gross negligence claim.
I. Background
Locke employed Gustafson as a shop helper and assigned him to work at CMS, one of Locke's clients. Locke paid him an hourly rate and billed CMS at a higher rate for Gustafson's time. While working in CMS's facility, Gustafson was injured when a forklift load began to shift and the CMS forklift operator quickly set the forks down, causing the channels to cut Gustafson's foot and requiring the amputation of his left big toe. It is undisputed that following the incident, Gustafson received benefits under Locke's workers' compensation policy. Gustafson sued Appellees for negligence and gross negligence and sought to hold the Smiths individually liable based on a corporate veil-piercing theory. Gustafson alleged the incident occurred during the course and scope of his employment and that CMS was a non-subscriber to workers' compensation insurance.
Appellees moved for summary judgment without specifying whether it was a traditional or no-evidence motion. Appellees asserted that CMS was Gustafson's employer, Locke elected to provide workers' compensation coverage, and therefore, Appellees were entitled to summary judgment based on the workers' compensation exclusive remedy provision as a matter of law. Appellees contended in their summary judgment motion that Gustafson could have more than one employer and cited to the SLSA. In their summary judgment motion, although Appellees argued that Locke "leased" Gustafson to CMS, they reasoned that it did not matter whether Gustafson "was a borrowed servant, a leased employee or a jointly controlled employee." Appellees further asserted there was no evidence that would allow Gustafson to pierce the corporate veil.
The summary judgment evidence included: (1) excerpts from Ronald Smith's deposition containing testimony that Gustafson was a CMS employee and CMS supervised his work; (2) Locke's invoices submitted to CMS for Gustafson's hours worked; (3) Gustafson's check stubs showing his pay rate; (4) certificates of insurance for Locke showing workers' compensation coverage for Locke only; (5) correspondence from the workers' compensation carrier regarding Gustafson's impairment rating and maximum medical improvement listing Locke as the employer; (6) Gustafson's employment records from Locke; and (7) a State of Texas "Personnel Employment Service Certificate of Authority" issued to Locke that expired in 2006. The summary judgment evidence did not include any written agreement between CMS and Locke nor any evidence that Locke was a valid license holder at the time this incident occurred. The summary judgment record likewise did not include any evidence that CMS subscribed to workers' compensation insurance.
Although Appellees asserted in their summary judgment motion that they "maintained insurance for employees injured on the job, but those claims were denied" based on Smith's deposition testimony, notably they do not specify this was workers' compensation insurance. Rather, the first time a certificate of insurance appears is in CMS's reply to Gustafson's summary judgment response. The insurance certificate shows it was a policy for accidents or occupational injury for CMS employees, but expressly states in bold that it is not a workers' compensation policy.
In response, Gustafson argued neither the SLSA nor the PEOA applied as no qualifying agreement existed between Locke and CMS, and Locke's election of coverage was immaterial. Gustafson further argued that he was only a temporary worker at CMS, and CMS was a non-subscriber under the Texas Workers' Compensation Act (TWCA). See Tex. Lab. Code Ann. § 401.001 et seq.
In Appellees' reply to Gustafson's summary judgment response, Appellees asserted that even if the SLSA or PEOA did not apply, Gustafson was a borrowed servant or a temporary worker, and therefore, Texas Labor Code section 93.004 applies entitling Appellees to judgment as a matter of law pursuant to the workers' compensation exclusive remedy provision. Gustafson filed a sur-reply complaining that Appellees raised an entirely new basis for its summary judgment for the first time in their reply.
Gustafson also objected to certain evidence attached to the Appellees' summary judgment reply, but the record does not establish he ever obtained rulings on those objections. In his brief on appeal, Gustafson again contends that Appellees first raised these arguments in their reply.
II. Standard of Review
Because traditional and no-evidence summary judgment motions are distinct and afford distinct standards of review, we must make an initial determination regarding which type of motion was before the trial court. Compare Tex. R. Civ. P. 166a(c), with Tex. R. Civ. P. 166a(i). In making this determination, we look to the substance of the motion rather than categorizing the motion strictly by its form or title. See Tex. Integrated Conveyor Sys., Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 375 (Tex. App.—Dallas 2009, pet. denied); Sanchez v. Mulvaney, 274 S.W.3d 708, 710 (Tex. App.—San Antonio 2008, no pet.). But see Phillips v. Am. Elastomer Prods., L.L.C., 316 S.W.3d 181, 185 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (noting that if a "motion does not clearly and unambiguously state that it is being filed under rule 166a(i), the nonmovant has no notice that the movant is seeking a no-evidence summary judgment") (citation omitted). Here, Appellees moved for summary judgment on the affirmative defense of the workers' compensation exclusive remedy, which required them to conclusively establish that defense.
Although a plaintiff may move for no-evidence summary judgment on the ground that there is no evidence of one or more essential elements of an affirmative defense that a defendant alleged and has the burden to prove, a defendant must file a traditional motion for summary judgment if it wishes to establish each element of that defense as a matter of law. See FDIC v. Lenk, 361 S.W.3d 602, 609 (Tex. 2012) ("'When a defendant moves for summary judgment based on an affirmative defense, . . . the defendant, as movant, bears the burden of proving each essential element of that defense.'" (quoting Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996) (per curiam)); see also Haver v. Coats, 491 S.W.3d 877, 881-82 (Tex. App.—Houston [14th Dist.] 2016, no pet.). The burden of proof never shifts to the non-movant unless and until the movant has "establish[ed] his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law." City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see also Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989). Thus, because Appellees moved for summary judgment on the affirmative defense of exclusive remedy, they must carry the burden of proof on their traditional motion for summary judgment.
Regarding Gustafson's alter ego theory, Appellees argued "Plaintiffs (sic) have pleaded an alter ego theory, although no evidence supports such a claim." Based on the substance of this portion of the motion, we determine Appellees' summary judgment on Gustafson's veil-piercing claims was a no-evidence motion. In order to defeat a no-evidence motion, the nonmovant must bring forth enough summary judgment evidence to raise a genuine issue of fact on each element the movant has challenged. Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). "A genuine issue of material fact exists if more than a scintilla of evidence establishing the existence of the challenged element is produced." Ridgway, 135 S.W.3d at 600 (citation omitted).
We review the grant of a traditional summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010) (citation omitted). "A party moving for summary judgment must conclusively prove all elements of its cause of action or defense as a matter of law." Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001) (citing Tex. R. Civ. P. 166a(c); Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996)). We consider the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge all reasonable inferences and resolve any doubts in the nonmovant's favor. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (citations omitted).
III. Analysis
A. Applicable Law: Exclusive Remedy Defense Generally
The TWCA allows a subscribing employer's injured employee to recover benefits for work-related injuries on a no-fault basis. See Tex. Lab. Code Ann. § 406.031. The TWCA's intent is to benefit employees and employers. See Port Elevator-Brownsville, L.L.C. v. Casados, 358 S.W.3d 238, 241 (Tex. 2012); AmeriGas Propane LP v. Aboytes-Muñiz, No. 09-18-00122-CV, 2019 WL 2127750, at *5 (Tex. App.—Beaumont May 16, 2019, pet. denied) (mem. op.). Under the TWCA's exclusive remedy provision, recovery of workers' compensation benefits is the exclusive remedy of an employee against an employer for a work-related injury. See Tex. Lab. Code Ann. § 408.001. Texas courts have long held that an employee can have more than one employer for purposes of the TWCA, and each employer may raise the defense of exclusive remedy as to an employee's claims. See Western Steel Co. v. Altenburg, 206 S.W.3d 121, 123 (Tex. 2006); Garza v. Exel Logistics, Inc., 161 S.W.3d 473, 476-78 (Tex. 2005); Wingfoot Enters. v. Alvarado, 111 S.W.3d 134, 143, 149 (Tex. 2003). To be entitled to summary judgment based on the affirmative defense of the workers' compensation exclusive remedy, a defendant must conclusively establish that at the time of the work-related injury: (1) the injured worker was an employee or borrowed servant of the defendant; and (2) the defendant had workers' compensation insurance at the time of the accident. Garza, 161 S.W.3d at 475-77 (Tex. 2005); AmeriGas Propane LP, 2019 WL 2127750, at *5.
There is no evidence that CMS subscribed to workers' compensation insurance. Therefore, to be entitled to the exclusive remedy defense as a non-subscriber, CMS had to establish not only that Gustafson was an employee or borrowed servant but that it could avail itself of Locke's proof of workers' compensation coverage. See Garza, 161 S.W.3d at 475-77; AmeriGas Propane LP, 2019 WL 2127750, at *5; see also Tex. Lab. Code Ann. § 408.001.
Note 3, infra.
In his first three issues, Gustafson challenges whether Appellees conclusively established their entitlement to the exclusive remedy defense and argues genuine issues of material fact exist precluding summary judgment. We address these issues in turn.
1. Issue One: SLSA and PEOA
On appeal and in response to the summary judgment below, Gustafson claims that neither the SLSA nor its successor the PEOA applies as a matter of law. Gustafson points to the absence of a written agreement between Locke and CMS as well as the fact that the statute, in its current form, excludes "temporary help." See Tex. Lab. Code Ann. § 91.001(14)(A).
In support of Appellees' summary judgment contention that the TWCA's exclusive remedy defense applied to CMS and barred Gustafson's claims, Appellees argued that Locke and CMS were "co-employers as defined by the Staff Leasing Services [Act]." See id. § 408.001. The legislature amended the SLSA in 2013 and re-codified it as the Professional Employer Organization Act. See Tex. Lab. Code Ann. §§ 91.001-.062. The 2013 amendments apply only to professional employer services agreements entered on or after September 1, 2013. See Act of May 18, 2013, 83rd Leg., R.S., ch. 117, § 29(b), 2013 Tex. Sess. Law. Serv. 495, 507 (codified at Tex. Lab. Code Ann. §§ 91.001-.062); see also Reveles v. OEP Holdings, LLC, 574 S.W.3d 34, 37 (Tex. App.—El Paso 2018, no pet.). The summary judgment record is devoid of any written agreement between Locke and CMS.
Under the PEOA, "coemployer" is defined as a "professional employer organization or a client that is a party to a coemployment relationship." See Tex. Lab. Code Ann. § 91.001(3-a). The PEOA further defines a "coemployment relationship" as "a contractual relationship between a client and a professional employer organization that involves the sharing of employment responsibilities . . . to covered employees in accordance with the professional services agreement and this chapter." Id. § 91.001(3-b). In order to qualify as coemployers under the PEOA, CMS and Locke necessarily had to be in a contractual relationship governed by a professional services agreement. See id. This agreement must be in writing. See id. § 91.031(a). The PEOA also requires that a professional employer organization be licensed. See id. § 91.011. "Co-employer status of a client company depends on the staff leasing services company being a license holder." Synergy Mgmt. Grp., L.L.C. v. Thompson, 398 S.W.3d 843, 847 (Tex. App.—Eastland 2012, no pet.).
To benefit from Locke's election of workers' compensation insurance and thereby be entitled to the workers' compensation exclusive remedy defense under the SLSA or PEOA, CMS had to establish it and Locke were co-employers under the statute. See Garza, 161 S.W.3d at 478; Tex. Workers' Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 594 (Tex. 2000); Synergy Mgmt. Grp., L.L.C., 398 S.W.3d at 846. CMS could do so by providing summary judgment evidence that Locke was a valid license holder and the parties operated under a written agreement. See Tex. Lab. Code Ann. § 91.001(3-a), (3-b).
The PEOA further directs that a professional services agreement must specify whether the parties have elected to obtain workers' compensation insurance coverage for the covered employees and which party must maintain coverage. See id. § 91.042(a-1). For purposes of the PEOA, a certificate of insurance or other evidence of coverage showing that either a license holder or client maintains workers' compensation coverage constitutes proof of coverage for the license holder and client with respect to all covered employees of the license holder and client. Id. § 91.006. If operating under a SLSA or PEOA-defined co-employment relationship, Appellees must also establish that Locke or CMS elected workers' compensation coverage to be entitled to section 408.001's bar. See id. § 91.042(c).
Covered employees under the PEOA are distinct from "temporary help" which is not included under the provision of "professional employer services." See id. § 91.001(14). Excluded "temporary help" is defined as "an arrangement by which an organization hires its own employees and assigns them to a company to support or supplement the company's work force in a special work situation" such as employee absence, temporary skill shortage, seasonal work, or a special project. See id. § 91.001(16).
To avail itself of Locke's election to provide workers' compensation insurance under the PEOA and the exclusive remedy defense, CMS must have conclusively established that it was in a coemployment relationship with Locke, as that term is defined under the PEOA. This required Appellees to show that at the time of this accident, a written professional services agreement existed between CMS and Locke. See id. § 91.001(3-b); see also Rodriguez v. Lockhart Contracting Servs., Inc., 499 S.W.3d 48, 61 (Tex. App.—San Antonio 2016, no pet.). Moreover, that agreement would need to specify whether Locke, as the purported license holder, or CMS, would obtain workers' compensation insurance. See Tex. Lab. Code Ann. § 91.042(a-1).
The only license produced in the summary judgment record expired in 2006. Appellees failed to provide summary judgment evidence that Locke held a valid license at the time the incident occurred or that a written professional services agreement existed between CMS and Locke. See Tex. Lab. Code Ann. § 91.001(3-b); Rodriguez, 499 S.W.3d at 61. Accordingly, CMS did not carry its burden to conclusively establish that it had a co-employment relationship with Locke under either the SLSA or PEOA that would make Locke's election to procure workers' compensation insurance for Gustafson applicable to CMS. See Synergy Mgmt. Group, 398 S.W.3d at 843 (explaining that where purported client company failed to establish that other company was a "license holder," they "could not be co-employers" under the SLSA). We sustain issue one.
2. Issues Two and Three: Temporary Employee and Non-subscriber
In his second and third issues, Gustafson contends he "was a loaned, temporary employee" and that CMS was a non-subscriber to workers' compensation insurance. Texas Labor Code section 93.004 provides that
[a] certificate of insurance coverage showing that a temporary employment service maintains a policy of workers' compensation insurance constitutes proof of workers' compensation insurance coverage for the temporary employment service and the client of the temporary employment service with respect to all employees of the temporary employment service assigned to the client.Tex. Lab. Code Ann. § 93.004(a). The statutory provision became effective in 2013 and was part of the amendments to simplify the workers' compensation scheme in Texas. Robles v. Mount Franklin Food, L.L.C., 591 S.W.3d 158, 166 (Tex. App.—El Paso 2019, pet. denied) (noting attempt by legislature to simplify entitlement to exclusive remedy provision with respect to temporary employment services by 2013 amendments to section 93.004). A certificate providing workers' compensation insurance for the temporary employment service is proof which entitles both it and the client to the exclusive remedy defense. Id.; see also Tex. Lab. Code Ann. § 93.004. This section differs from the SLSA and PEOA as it does not require the same type of written agreements or a license. Compare Tex. Lab. Code Ann. § 93.004, with §§ 91.001(3-b), 91.011.
While the El Paso Court of Appeals determined in Robles v. Mount Franklin Food, L.L.C. that the defendant was entitled to summary judgment against a temporary worker based on the exclusive remedy provision, we note a key distinction. 591 S.W.3d 158 (Tex. App.—El Paso 2019, pet. denied). There, the defendant's summary judgment motion asserted that the temporary employee's receipt of benefits under the temporary employment's service's workers' compensation policy barred recovery against it. See id. at 161. That is not the case here where Appellees made that specific argument for the first time in their reply. Moreover, in Robles, the client company's human resources officer supported the summary judgment with an affidavit that averred the temporary employment agency assigns "temporary employees to work temporary employee positions" at their facility per an agreement between the two. No such affidavit exists here.
Gustafson challenges whether Appellees properly addressed these arguments in their summary judgment motion and whether Appellees' motion incorporated the requisite evidence. In their summary judgment motion, Appellees did not assert that Gustafson's status as a temporary worker and section 93.004 or Gustafson's status as a borrowed servant entitled them to the affirmative defense of exclusive remedy. Rather, after Gustafson filed his response to the motion for summary judgment, Appellees asserted for the first time in their reply that Gustafson was a borrowed servant or a temporary worker and such status entitled them to the exclusive remedy defense pursuant to section 93.004. Appellees further argued that his election to receive workers' compensation benefits from Locke barred his claims against CMS. Gustafson objected to the trial court considering these issues in the summary judgment.
Rule 166a requires that a summary judgment motion state the specific grounds therefor, and the movant is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or other response. Tex. R. Civ. P. 166a(c) (emphasis added); Johnson v. Brewer Pritchard, P.C., 73 S.W.3d 193, 204 (Tex. 2002); Stiles v. Resolution Tr. Corp., 867 S.W.2d 24, 26 (Tex. 1993). In other words, a motion for summary judgment must "stand or fall on the grounds expressly presented in the motion." McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). "A reply is not a motion for summary judgment." Reliance Ins. Co. v. Hibdon, 333 S.W.3d 364, 378 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (citing Guest v. Cochran, 993 S.W.2d 397, 403 (Tex. App.—Houston [14th Dist.] 1999, no pet.)). Courts have clarified that an issue raised for the first time in the movant's reply to the nonmovant's response cannot be considered as a basis for affirming the summary judgment. See Rodriguez, 499 S.W.3d at 61 (citing Henckel v. Norman, 441 S.W.3d 249, 251 n.1 (Tex. 2014)). A movant is not permitted to use its reply to amend its summary judgment motion or to raise new and independent grounds for summary judgment. Id.; Garcia v. Garza, 311 S.W.3d 28, 36 (Tex. App.—San Antonio 2010, pet. denied); 1001 McKinney Ltd. v. Credit Suisse First Boston Mortg. Capital, 192 S.W.3d 20, 25 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) ("In the absence of the nonmovant's consent, a movant may not raise a new ground for summary judgment in a reply to the nonmovant's response.").
Here, Appellees' motion for summary judgment vaguely referenced the SLSA/PEOA and failed to mention Texas Labor Code section 93.004. Then Appellees went on to assert in their summary judgment motion that it "doesn't matter whether [Gustafson] was a borrowed servant, a leased employee or a jointly controlled employee." We disagree. In the context of a summary judgment motion, it does matter. While it is undisputed that Gustafson elected and received workers' compensation benefits, under each of the theories listed above, the proof required to establish CMS's entitlement to the exclusive remedy defense differs. Appellees did not specifically argue in their summary judgment motion that Gustafson was a borrowed servant, a temporary worker, or subject to the SLSA. They simply said it did not matter.
The exact nature of the relationship between Locke and CMS was not established, other than Locke provided workers to CMS. It is unclear if the relationship fell under section 93.004 or the SLSA/PEOA, as the proof conclusively established neither. Because the SLSA/PEOA excludes "temporary workers," and section 93.004 covers them, CMS was required to prove one or the other in order to benefit from Locke's election of coverage that would entitle it to the exclusive remedy defense.
Since we are not permitted to affirm a summary judgment on grounds first raised in a movant's reply to a nonmovant's response, we cannot consider Appellees' contention that a borrowed servant theory or that a temporary employment agency's procurement of insurance entitles them to the exclusive remedy defense pursuant to Texas Labor Code section 93.004, regardless of their merit. McConnell, 858 S.W.2d at 341; Rodriguez, 499 S.W.3d at 61. CMS failed to show Locke's election to obtain workers' compensation insurance entitled it to the exclusive remedy defense. See Reveles, 574 S.W.3d at 39. We determine Appellees failed to meet their traditional summary judgment burden of proof, and genuine issues of material fact remain. We sustain Appellant's second and third issues.
B. Issue Four: Piercing the Corporate Veil
Although Appellees made the allegation with respect to Gustafson's alter ego theory in its summary judgment motion that "no evidence supports such a claim," they do not challenge any particular element of a corporate veil piercing theory or any of the particular factors a court should consider in making such a determination. "A no-evidence motion for summary judgment is legally insufficient as a matter of law if it is not specific in challenging a particular element or is conclusory." See Sanchez, 274 S.W.3d at 710 (citing McConnell, 858 S.W.2d at 342). Because Appellees' no-evidence motion for summary judgment on Gustafson's corporate veil piercing theory is insufficient, we sustain this issue.
Based on resolution of his first four issues, we need not address Gustafson's fifth issue as it would afford him no greater relief. See Tex. R. App. P. 47.1.
IV. Conclusion
Since Gustafson does not challenge the dismissal of his gross negligence claim, we affirm the judgment as to that claim. Genuine issues of material fact exist regarding CMS's entitlement to the TWCA exclusive remedy defense as a "co-employer" under the former SLSA or the current PEOA, under section 93.004, and under a borrowed servant theory, precluding summary judgment. Further, Appellees' no-evidence motion for summary judgment on the corporate veil piercing claim was insufficient. Therefore, the trial court improperly granted summary judgment. We reverse and remand for further proceedings.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
/s/_________
CHARLES KREGER
Justice Submitted on October 8, 2019
Opinion Delivered July 23, 2020 Before McKeithen, C.J., Kreger and Horton, JJ.