Opinion
No. 10-04-00301-CV
Opinion delivered and filed January 18, 2006. Special Note delivered and filed January 25, 2006.
Appeal fromthe 249th District Court, Johnson County, Texas, Trial Court No. C 2003-00462.
Affirmed.
Before Cheif Justice GRAY, Justice VANCE, and, Justice REYNA.
MEMORANDUM OPINION
After being fired from his job, Allen Whittington filed suit against Tesmec USA, Inc. for retaliatory termination, claiming that he was fired from his job because he filed a workers' compensation claim. A jury found for Whittington, and Tesmec appeals. Because we find the evidence is legally sufficient to support the jury's findings, we affirm.
Background
Tesmec hired Whittington as a welder in January of 1999 at the wage of $10/hour with the promise of a pay raise in ninety days. In March, Whittington was severely injured when a three-thousand pound cabin of a trenching machine fell on him, crushing his arm. As a result, Whittington received workers' compensation benefits until his arm healed. He was able to return to work in July, but with extremely light duty medical restrictions. In August, Tesmec gave Whittington a raise of $1.00/hour. Whittington continued to work light duty, and received another pay raise of $1.00/hour in November. In January of 2000, Whittington had further surgery to remove a plate from his arm. Unfortunately the bone graft was unsuccessful, and Whittington re-injured his arm at home at the end of January. Whittington went back on workers' compensation until he could return to light duty work in August. At the end of December 2000, Whittington was allowed to return to full duty work. On January 12, 2001, Whittington was laid off along with four other assembly workers, a secretary, and a purchasing agent. Whittington was paid a two-week severance package plus his vacation time, and he continued to receive bonus payments. A temporary service placed Whittington in another job in February at fifty cents more per hour than he was earning at Tesmec. At this establishment, Whittington became a permanent employee in May of 2001, earning a dollar more per hour than he was earning at Tesmec.
In September, Whittington filed suit against Tesmec for retaliatory termination. A jury found for Whittington, awarding him $10,976 in compensatory damages, $20,000 in punitive damages, and pre- and post-judgment interest.
On appeal, Tesmec argues that the trial court erred (1) in rendering judgment on the jury finding of retaliatory discharge because there is no evidence Whittington was discharged from employment other than as an across the board layoff along with similarly situated employees; (2) in submitting question three to the jury because there is no evidence that Tesmec acted with malice; (3) in overruling Tesmec's motion for judgment n.o.v. on the jury finding of malice because there is no evidence of malice under the standard of clear and convincing evidence; (4) in rendering judgment for compensatory damages because there is no evidence of emotional pain and suffering, inconvenience, mental anguish, loss of enjoyment of life, or other nonpecuniary losses; and (5) in granting a bill of review setting aside an order of dismissal for want of prosecution in the first lawsuit between the parties because Whittington could have pursued a restricted appeal. Whittington asserts a cross-point arguing that the jury's failure to award lost earnings in the past and in the future is against the great weight and preponderance of the evidence.
Analysis
The Evidence is Legally Sufficient to Support the Jury's Finding of Retaliatory Discharge
In its first issue, Tesmec argues that there is no evidence to support the jury's finding of retaliatory discharge.
When an appellant who did not have the burden of proof at trial complains of legally insufficient evidence, the appellant must show there is no evidence to support the contested finding. Beard v. Beard, 49 S.W.3d 40, 55 (Tex.App.-Waco 2001, pet. denied). A "no evidence" claim will be sustained if: (a) there is a complete absence of evidence of a vital fact; (b) the rules of law or evidence prevent the court from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is not more than a scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998) (citing Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 TEX. L. REV. 361, 362-63 (1960)). "We must credit favorable evidence if reasonable fact finders could, and disregard contrary evidence unless reasonable fact finders could not." Hardy v. Robinson, 170 S.W.3d 777, 781 (Tex.App.-Waco 2005, no pet.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 811 (Tex. 2005)). When the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusion," then there is more than a scintilla of evidence. Beard, 49 S.W.3d at 55 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).
Retaliatory termination is governed by sections 451.001-451.003 of the Texas Labor Code. TEX. LAB. CODE ANN. §§ 451.001-451.003 (Vernon 1996). "The statute is designed to protect employees who are entitled to workers' compensation benefits from being discharged because they take steps to collect those benefits." Alayon v. Delta Air Lines, Inc., 59 S.W.3d 283, 287 (Tex.App.-Waco 2001, pet. denied) (per curiam). The statute prohibits discharging an employee or discriminating against an employee because that employee has filed a workers' compensation claim in good faith. TEX. LAB. CODE § 451.001; Contl. Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).
Whittington does not have to prove that he was discharged solely because he filed a workers' compensation claim. Rather, he must establish that there is a "causal connection" between his discharge and his filing of a workers' compensation claim. Contl. Coffee, 937 S.W.2d at 450; Alayon, 59 S.W.3d at 287. The workers' compensation claim also need not be the sole cause of the termination. Alayon, 59 S.W.3d at 287.
Proof of a causal connection may be established by direct or circumstantial evidence. Circumstantial evidence sufficient to establish a causal connection includes: (1) knowledge of the compensation claim by those making the decision on termination; (2) expression of a negative attitude toward the employee's injured condition; (3) failure to adhere to established company polices; (4) discriminatory treatment in comparison to similarly situated employees; and (5) evidence that the stated reason for the discharge was false. Contl. Coffee, 937 S.W.2d at 451; Alayon, 59 S.W.3d at 287.
Once a causal connection is established, the burden shifts to the employer to rebut the alleged discrimination by showing there was a legitimate reason behind the discharge. Contl. Coffee, 937 S.W.2d at 451. Once shown, the burden shifts back to the employee to produce controverting evidence of a retaliatory motive, which may also be established by circumstantial evidence. Tex. Division-Tranter, Inc. v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (per curiam); Alayon, 59 S.W.3d at 287.
Knowledge of the Workers' Compensation Claim
Tesmec concedes that it had knowledge of Whittington's workers' compensation claim, but argues that he cannot prove a causal connection. Tesmec argues that Whittington was fired because of financial reasons and because Whittington was a non-productive employee. Tesmec argues that there is a distinction between terminating an employee in retaliation for filing a workers' compensation claim and in choosing a previously injured, but fully recovered employee for termination because he was either absent or on light duty for over ninety percent of his employment when compared to retained full time employees.
Expression of a Negative Attitude
Whittington argues that expressions of a negative attitude concerning his filing of a workers' compensation claim were manifested repeatedly. Whittington testified that when he returned to work in August of 2000 after his second injury, "[i]t was like flipping on a switch in [a] dark room, night and day." He testified that his supervisors "ragged him," asking how long he was going to "ride that mule," and that because the supervisors were harassing him, the employees began doing it as well. However, on cross-examination, Whittington conceded that after he returned to work in August, supervisors made such comments six times. In their testimony, the supervisors denied making such statements concerning Whittington's workers' compensation claim.
Whittington testified that Tesmec began harassing him about performing work outside of the doctor's work restrictions. Whittington testified that he was told by Tesmec's shop foreman, Steve Harris, that "he would have to get off that light duty stuff," and if Whittington was supposed to be a welder, then he was going to make him weld or "send him packing." Whittington testified that Tesmec decided that because the doctor's restrictions did not specifically mention welding, then Whittington should be able to weld. In August of 2000, Whittington's doctor restricted him from lifting, pulling, or pushing twenty-five pounds or more, and put him on light duty work. Tesmec manager Arkie Owen testified that he asked Whittington if he could do "flat" welding, which would not require Whittington to be in an awkward position, and if it came to the point where he needed help, he could ask for it. However, Owen agreed on cross-examination that welding requires moving the several hundred pound welding machines. Also, Owen admitted that "flat" welding did require squeezing a trigger for a long period of time repetitively. Even though Whittington told Owen that his doctor said he could not weld and showed Owen that he could not flex his hands closed all the way, Owen testified in reply, "I'm sure that his doctor might have wanted him to work those fingers and stuff like that, I would think," and argued that Whittington's restrictions did not specifically state that he could not weld.
After these incidents, Whittington testified that he requested a meeting with Owen and company vice president Frank Christian to discuss the medical restrictions. At the meeting Whittington was asked if he was refusing to weld, and Whittington explained that he was not refusing to weld and would do so as long as it was within the doctor's weight restrictions. Whittington testified that he was told that if the restrictions did not specifically restrict him from welding, then he was subject to weld.
Whittington went to his doctor for clarification of his work restrictions, and Tesmec gave the doctor a written description of welding. The doctor specifically restricted Whittington from welding. However, even after the doctor sent his updated restrictions, there is evidence that Tesmec did not agree with the doctor's conclusions. Documents in the workers' compensation insurance file reflect that Tesmec's Comptroller, Reginald Denny, told the insurance carrier of the doctor's new restriction on welding, but that Tesmec believed that welding was well within Whittington's twenty-five pound lifting restriction. When asked about this at trial, Denny denied making such a statement and testified that he would not know whether welding was or was not within the doctor's restrictions.
Whittington also testified that Tesmec expressed negative attitudes concerning Whittington's hiring of a lawyer to help him with his workers' compensation benefits. Whittington testified that Owen had heard that Whittington had hired a lawyer and asked him why he did and why was the lawyer needed. Whittington explained that he wanted to be sure that he got all his benefits, and testified that Owen stated that he did not understand why he would need a lawyer and told Whittington that Denny wanted to discuss it with him. Whittington testified that when he met with Denny in his office, he acted frustrated and irritated because Whittington hired a lawyer. Whittington testified that he explained his need for a lawyer to Denny two or three times, but Denny would reply that he just could not see why he needed one. Denny testified at trial that he did discuss with Whittington whether he had hired a lawyer, however he did so because if Whittington had hired a lawyer, it would then be necessary for the company to communicate with Whittington strictly through their respective attorneys.
Discriminatory Treatment in Comparison to Similarly Situated Employees
Whittington presented a report produced by Tesmec that tracked workers' compensation claimants. The report reflected that four of the five shop employees that were laid off on January 12, 2001 (including Whittington) had filed workers' compensation claims in the year 2000. However, Tesmec argues that these workers' compensation claims were a small amount compared to reported injuries for the Tesmec plant in 1999 and 2000. Whittington presented evidence that some of the employees that were not selected for layoff were hired after Whittington, did not have as much assembly experience as Whittington, and some had no welding experience at all. None of these employees had workers' compensation claims.
Owen testified that these employees were kept because they were more productive. Tesmec gives performance bonuses based upon productivity. After he returned to work in August of 2000, Whittington testified that he received one or more productive bonuses per month from September to December of 2000. Whittington argues that looking at performance bonuses, Whittington outperformed the employees retained. Whittington presented evidence that he received more bonuses in the four months prior to his termination than some of the employees who were retained, including Jesse Pruitt, an employee hired after Whittington, who had less experience, and was earning more money than Whittington.
Evidence that the Stated Reason for the Discharge was False
Tesmec argues that the layoffs were for financial reasons. However, Whittington presented evidence that in the month prior to the layoffs, Tesmec gave substantial raises of up to eighteen percent to most employees, except Whittington and two other employees, all of whom were workers' compensation claimants. Employees that were hired after Whittington returned to work in August received raises, yet Whittington did not. Whittington presented the employment history of Tesmec employee Pruitt for comparison. Pruitt was hired after Whittington. For the months of July through December of 2000, Pruitt earned substantially less productive bonuses than Whittington. Yet, Pruitt was earning more money than Whittington, and in December Pruitt earned an eleven percent pay raise, while Whittington did not get a raise.
Tesmec argues that Whittington did not receive a pay raise because he was on workers' compensation leave for 343 days of his employment history, and there was no basis upon which his supervisor could evaluate his performance as a welder because he was on light duty. However, Whittington argues that his performance bonuses show that he outperformed employees that were retained and received raises.
Whittington produced a letter from Owen to Whittington informing him that his employment was terminated. The letter does not mention Whittington's lack of performance, attitude, or productivity, but implies that he will be re-hired at a later date. Mr. Owen testified that he would consider re-hiring Whittington. However, in an answer to Whittington's interrogatory question, Tesmec states that "because sales of Tesmec products dropped drastically from previous years, a layoff was required. [Whittington] was among the least productive employees and was selected for termination." Owen conceded that productive employees receive production bonuses and testified that if a worker puts in hours working on a machine, he is paid a bonus. Whittington argues that his numerous production bonuses prove that he was not laid off because he was a nonproductive employee.
Having conducted a thorough review of the evidence, we find that there is more than a scintilla of evidence that a causal connection existed between Whittington's termination and his filing of a workers' compensation claim. Therefore, we find that the evidence is legally sufficient to support the jury's finding of retaliatory termination. Beard, 49 S.W.3d at 55; City of Keller, 168 S.W.3d at 811; see Contl. Coffee, 937 S.W.2d at 450-51; Celanese Ltd. v. Skrabanek, No. 13-04-00015-CV, 2005 Tex. App. LEXIS 8875, *9 (Tex.App.-Corpus Christi 2005, no pet. h.) (memo. op.) (finding legally sufficient evidence of retaliation); Grey Wolf Drilling Co., L.P. v. Perez, No. 04-02-00802-CV, 2004 Tex. App. LEXIS 2011, *8 (Tex.App.-San Antonio 2004, pet. denied) (memo. op.) (finding legally sufficient evidence of retaliation); Alayon, 59 S.W.3d at 287. Accordingly, we overrule Tesmec's first issue.
The Evidence is Legally Sufficient to Support the Jury's Finding of Malice
Tesmec argues in its second and third issues that there is no evidence of malice under the standard of clear and convincing evidence, and that the court erred by submitting the question of malice to the jury and by overruling Tesmec's motion for judgment n.o.v. on the jury finding of malice.
Whittington was required to prove by clear and convincing evidence that Tesmec acted with malice. Clear and convincing evidence is "that measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." TEX. FAM. CODE ANN. § 101.007 (Vernon 2002); Moriel v. Transportation Ins. Co., 879 S.W.2d 10, 31 (Tex. 1994). The elevated standard of clear and convincing evidence changes the legal-sufficiency standard of review to a similarly heightened standard.
In a legal sufficiency review, a court should look at all the evidence in the light most favorable to the finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that its finding was true. To give appropriate deference to the factfinder's conclusions and the role of a court conducting a legal sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so. A corollary to this requirement is that a court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. This does not mean that a court must disregard all evidence that does not support the finding. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence.
If after conducting its legal sufficiency review of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient.
S.W. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 627 (Tex. 2004) (quoting In the Int. of J.F.C., 96 S.W.3d 256, 266 (Tex. 2002)).
Under cases dealing with retaliatory discharge, malice is defined as "ill-will, spite, evil motive, or purposing the injuring of another." Contl. Coffee, 937 S.W.2d at 454; C D Robotics, Inc. v. Mann, 47 S.W.3d 194, 201 (Tex.App.-Texarkana 2001, no pet.). However, this definition was not given to the jury, nor was there an objection from either party to the definition that was given to the jury. Because neither party objected, we are bound to review the evidence in light of the actual definition given to the jury. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000) (citing Larson v. Cook Consultants, Inc., 690 S.W.2d 567, 568 (Tex. 1985)); Ancira Enters. v. Fischer, No. 03-03-00498-CV, 2005 Tex. App. LEXIS 4708,*25 (Tex.App.-Austin June 16, 2005, no pet.).
The jury was instructed on the definition of malice as presented in chapter 41 of the Texas Civil Practice and Remedies Code. TEX. CIV. PRAC. REM. CODE ANN. § 41.007(7), (11) (Vernon Supp. 2005). Under this definition, malice has two alternative elements: (1) specific intent and (2) gross negligence. To prove specific intent, a plaintiff must show that the defendant specifically intended to cause him substantial injury or harm. TEX. CIV. PRAC. REM. CODE ANN. § 41.001(7). To prove gross negligence, a plaintiff must show that (1) when viewed objectively, the defendant's acts or omissions involved an extreme degree of risk, considering the probability and magnitude of the potential harm to others and (2) the defendant had an actual subjective awareness of the risk involved but nevertheless proceeded with conscious indifference to the rights, safety, or welfare of others. TEX. CIV. PRAC. REM. CODE ANN. § 41.001(11); see Mission Res., Inc. v. Garza Energy Trust, 166 S.W.3d 301, 313 (Tex.App.-Corpus Christi 2005, pet. filed).
Whittington argues that his harassment by Tesmec supervisors and employees about his workers' compensation claim, the threat to send him packing if his doctor's restrictions did not specifically restrict him from welding, the dissemination of false information to Tesmec's insurance agency concerning Whittington's workers' compensation benefits, and the harassment about hiring a workers' compensation lawyer constitute evidence of specific ill will. Whittington also argues that Tesmec had an economic basis for ill will against Whittington. Denny testified that Tesmec's workers' compensation premiums increased after Whittington's claim. Whittington also argues that Tesmec had a specific intent to terminate employees who had workers' compensation claims and points to the evidence that four out of the five shop employees that were terminated (including Whittington) had workers' compensation claims. Whittington argues that this evidence is sufficient to prove that Tesmec formed a plan or scheme to terminate employees who had recently filed workers' compensation claims.
Tesmec argues that no evidence establishes malice, and certainly not by a clear and convincing standard. Tesmec argues that Tesmec employees refuted Whittington's claim of harassment for filing a workers' compensation claim and for hiring a lawyer. Tesmec points to Owen's testimony that Whittington "could have made a real good hand," as evidence that Tesmec held no ill will towards him.
Evidence of retaliation alone is not sufficient to support a finding of malice and an award of punitive damages. Ancira Enters., 2005 Tex. App. LEXIS 4708 at *28-29. However, economic incentive, combined with harassment of an employee and testimony that money was a factor in terminating the employee is sufficient to establish malice. See Whole Foods Mkt. Southwest L.P. v. Tijerina, 979 S.W.2d 768, 780 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). Also, knowledge by the employer of laws prohibiting retaliation has been found to be some evidence of malice. See Ancira Enters., 2005 Tex. App. LEXIS 4708 at *28-29. Both Owen and Denny acknowledged that they were aware that it was against the law to discriminate or retaliate against an employee for filing a workers' compensation claim. Therefore given the evidence above, we conclude that there is some evidence sufficient to enable a reasonable juror to form a firm belief or conviction that Tesmec was aware of the risk that retaliating against Whittington would violate Whittington's legal rights, yet proceeded with conscious indifference to that risk, and that retaliating objectively involved an extreme degree of risk of violating Whittington's legal rights. See Tex. Civ. Prac. Rem. Code Ann. § 41.001(11); Garza Energy Trust, 166 S.W.3d at 313. Therefore, we find that the evidence is legally sufficient to support the jury's finding of malice. See Dillard Dep't Stores, Inc. v. Hecht, No. 08-03-00076-CV, 2005 Tex. App. LEXIS 7145, *33 (Tex.App.-El Paso 2005, no pet.) (finding legally sufficient evidence for malice in constructive discharge case); Lubbock v. Strube, 953 S.W.2d 847, 858-60 (Tex.App.-Austin 1997, pet. denied) (evidence that supervisors ignored employee's injuries, gave her work assignments which subjected her to harassment, and threatened to fire her were sufficient to support finding of malice); see also AAA Office Coffee Serv. v. Hansen, No. 01-03-00984-CV, 2005 Tex. App. LEXIS 8307, *40 (Tex.App.-Houston [1st Dist.] 2005, pet. denied) (memo. op.) (finding legally sufficient evidence of malice in sexual harassment case). Accordingly, we overrule Tesmec's second and third issues.
The Evidence is Legally Sufficient to Support the Jury's Finding of Compensatory Damages
In Tesmec's fourth issue, it argues that the trial court erred in rendering judgment for compensatory damages because there is no evidence of mental anguish.
Though the term "compensatory damages" encompasses more than merely mental anguish, Tesmec's and Whittington's arguments concern only mental anguish damages. Mental anguish damages must be supported by "direct evidence of the nature, duration, and severity of [the] mental anguish, thus establishing a substantial disruption in the plaintiff's daily routine," or "evidence of `a high degree of mental pain and distress' that is `more than mere worry, anxiety, vexation, embarrassment, or anger.'" Latham v. Castillo, 972 S.W.2d 66, 70 (Tex. 1998) (citing Parkway v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995)); Sunbridge Healthcare Corp. v. Penny, 160 S.W.3d 230, 251 (Tex.App.-Texarkana 2005, pet. denied). Painful emotions, such as "grief, severe disappointment, indignation, wounded pride, shame, despair, or public humiliation or a combination of any of these" have been found to constitute mental anguish. Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 528 (Tex.App.-San Antonio 1996, writ denied). Claims of mental anguish are necessarily speculative. Thus, these claims are left within the province of the jury which is better able to judge the credibility of witnesses and the weight to be given to their testimony. Jackson v. Golden Eagle Archery, Inc., 143 S.W.3d 477, 486 (Tex.App.-Beaumont 2004, no pet.); Odem, 929 S.W.2d at 528. However, there must be evidence that the amount of mental anguish damages awarded by the jury is fair and reasonable, and we must perform a "meaningful evidentiary review" of the amount found. Wal-Mart Stores, Inc. v. Cockrell, 61 S.W.3d 774, 780 (Tex.App.-Corpus Christi 2001, no pet.); Penny, 160 S.W.3d at 251.
Whittington testified that the harassment at work had a terrible effect on him. He testified that it made him feel "mad, worthless," that he was somehow cheating Tesmec by having such an injury. He testified that he had worked hard all his life, and being laid off under these circumstances made him feel "very small." He testified that after he was laid off, he did not know where his next paycheck would come from and worried about insurance for his family. He also worried whether he could get another job due to the permanent injury to his arm. He testified that he lost sleep over concern for his family and felt "demoralized, degraded, injured," and that these feelings persisted even after he found another job.
We find that there is legally sufficient evidence to support the jury's finding of compensatory damages. City of Forth Worth v. DeOreo, 114 S.W.3d 664, 680 (Tex.App.-Fort Worth 2003, no pet.) (crying a lot, severe anger, and high blood pressure legally sufficient evidence to uphold mental anguish award); C D Robotics, Inc. v. Mann, 47 S.W.3d 194, 200-01 (Tex.App.-Texarkana 2001, no pet.) (plaintiff's feelings of devastation, depression, and humiliation legally sufficient evidence to support damages for emotional pain and mental anguish); Metal Indus., Inc. of California v. Farley, 33 S.W.3d 83, 89-90 (Tex.App.-Texarkana 2000, no pet.) (loss of self-esteem, anger, devastation, betrayal, disappointment, and loss of sleep legally sufficient evidence to support mental anguish damages); Tex. Animal Health Comm'n v. Garza, 27 S.W.3d 54, 63 (Tex.App.-San Antonio 2000, pet. denied) (upholding mental anguish damages where plaintiff presented testimony that he was depressed, irritable, and experienced sleeplessness and hives). Accordingly, we overrule Tesmec's fourth issue.
The Trial Court did not Err in Granting Whittington's Bill of Review
Tesmec argues in its fifth issue that the trial court erred in granting Whittington's bill of review because Whittington could have pursued a restricted appeal.
Whittington filed this lawsuit against Tesmec on July 6, 2001. The court clerk sent a notice of intent to dismiss for want of prosecution on January 7, 2003. The notice was sent to the wrong address, and Whittington never received the notice. The case was dismissed on February 21. Whittington filed a petition for bill of review on August 5. The trial court held a hearing and granted the bill of review on December 31. The case then proceeded to trial.
Tesmec argues that a bill of review was not an available remedy for Whittington because Whittington could have filed a restricted appeal. Tesmec argues that when an appeal from a judgment is an available remedy, and a party neglects to pursue such a remedy, then that party is not entitled to a bill of review proceeding.
A party may pursue relief by a bill of review only if that party has exercised due diligence in pursuing all adequate legal remedies. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999); Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). To qualify for a restricted appeal, a party must appeal within six months after the judgment was signed, be a party to the suit, and must not have participated in the hearing that resulted in the judgment. See TEX. R. APP. P. 26.1(c), 30 (Vernon 2003). Also, the error must appear on the face of the record. Laas v. Williamson, 156 S.W.3d 854, 857 (Tex.App.-Beaumont 2005, no pet.) (citing Quaestor Invs., Inc. v. State of Chiapas, 997 S.W.2d 226, 227 (Tex. 1999)). Tesmec argues that Whittington met the requirement for a restricted appeal, thus he cannot file a bill of review because he did not pursue all adequate legal remedies.
The Texas Supreme Court recently held that a restricted appeal is not among the adequate legal remedies that a bill of review claimant must pursue. Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004).
More generally, we have never held that failing to file a restricted appeal bars a bill of review. . . . If a motion to reinstate, motion for new trial, or direct appeal is available, it is hard to imagine any case in which failure to pursue one of them would not be negligence. But the same cannot be said about choosing to appeal by bill of review rather than a restricted appeal, for several reasons. First, a bill of review allows trial courts to rectify their own errors, eliminating the need for lengthy appellate review. Second, all facts may be considered, not just those appearing on the face of the record. Third, discovery is available to find out what all the facts are. Finally, it avoids the need to follow both avenues of appeal seriatim. . . . It is true we have sometimes stated that relief by bill of review is available "only if a party has exercised due diligence in pursuing all adequate legal remedies [and not] [i]f legal remedies were available but ignored." But a party is not "ignoring" its remedies when it chooses one appellate avenue rather than another. We have never included a restricted appeal among the "adequate legal remedies" a bill of review claimant must pursue; we have only applied this rule to motions that could have been filed in the trial court's first proceeding.
Gold, 145 S.W.3d at 213-14 (citations omitted).
Therefore, we find that the trial court did not err in granting Whittington's bill of review. Accordingly, we overrule Tesmec's fifth issue.
Whittington's Cross-point is not Preserved
Whittington argues in his cross point that the jury's failure to award lost earnings in the past and in the future is against the great weight and preponderance of the evidence.
Whittington seeks to alter the trial court's judgment, but did not file a notice of appeal. TEX. R. APP. P. 25.1(c) (Vernon 2003) ("[A] party who seeks to alter the trial court's judgment or other appealable order must file a notice of appeal . . . The appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause."). Therefore, Whittington did not preserve this issue for appeal. Brooks v. Northglen Ass'n, 141 S.W.3d 158, 171 (Tex. 2004); Lee v. Lee, No. 10-03-00182-CV, 2004 Tex. App. LEXIS 7182, *5 (Tex.App.-Waco 2004, pet. denied) (memo. op.); Gore v. Scotland Golf, Inc., 136 S.W.3d 26, 34 (Tex.App.-San Antonio 2003, pet. denied). Accordingly, we overrule Whittington's cross-point.
Conclusion
Having overruled all of Tesmec's issues and Whittington's cross-point, we affirm the judgment of the trial court.
SPECIAL NOTE
The majority issued an opinion in this case on January 18, 2006. The signature block correctly indicates that I am on the panel. But the signature block failed to note the information that I had communicated to the author regarding my ability, or inability, to vote on the opinion and judgment. I received this query from Justice Reyna's Staff:
Judge Reyna would like to issue Tesmec v. Whittington by 1/18/06 if that is at all possible. We are currently waiting for a concurring or dissenting opinion from Judge Gray. Please let us know.
I responded to the staff member and Justices Reyna and Vance:
Thanks for the reminder, but I have not had an adequate amount of time to evaluate the issues in this appeal so I do not know what to tell you other than I will not have you an answer by that date. You may or may not be aware that I am already working on a commitment with Felipe to try to get an accelerated appeal finished so that it can issue next week. Not sure why this one would take priority over the accelerated appeal. Bill is pushing on one for the 18th as well and there is simply no way that I can get to it either.
As with other cases in which Justices Reyna and Vance have elected to issue their opinion without awaiting on my vote, there are serious issues presented in this appeal. I cannot vote on the result in a case until I have had adequate time to study the issues presented. This is not the only case on which I must cast a vote and it must be appropriately balanced with other priorities.
Texas Genco v. Valence Operating Co., No. 10-04-00365-CV, 2005 Tex. App. LEXIS ___ (Tex.App.-Waco Jan. 18, 2006, no pet. h.) (Special Note by Chief Justice Gray issued Jan. 25, 2006); Park v. Montgomery County, No. 10-04-00231-CV, 2005 Tex. App. LEXIS 8646 (Tex.App.-Waco Oct. 19, 2005, pet. filed) (Special Note by Chief Justice Gray, No. 10-04-00231-CV, 2005 Tex. App. LEXIS 8659 (Tex.App.-Waco Oct. 19, 2005)); Pac. Emplrs. Ins. Co. v. Mathison, No. 10-04-00314-CV, 2005 Tex. App. LEXIS 8650 (Tex.App.-Waco Oct. 19, 2005, no pet.) (Special Note by Chief Justice Gray, No. 10-04-00314-CV, 2005 Tex. App. LEXIS 8660 (Tex.App.-Waco Oct. 19, 2005)); Krumnow v. Krumnow, 174 S.W.3d 820, 830-842 (Tex.App.-Waco August 24, 2005, pet. filed) (Special Note by Chief Justice Gray issued August 31, 2005).
Thus, to avoid leaving the appearance that I agree with the opinion and judgment, this Special Note is simply to advise you that at the time the majority issued its opinion, I was not, nor am I currently, in a position to cast a vote on the issues presented in this appeal. Thus, I can neither concur nor dissent.