Pamela DeVore v. American Manufacturers Mutual Ins. Co. ( 2008 )

Opinion issued June 27, 2008

In The

Court of Appeals  

For The  

First District of Texas  

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NO. 01-07-00495-CV

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PAMELA DEVORE, Appellant

V.

AMERICAN MANUFACTURER’S MUTUAL INSURANCE COMPANY, Appellee

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On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 2007-04859

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MEMORANDUM OPINION

          Appellant, Pamela DeVore, appeals from a final judgment dismissing her suit for want of subject-matter jurisdiction upon the plea to the jurisdiction of appellee, American Manufacturer’s Mutual Insurance Company (“AMMIC”). We determine whether the trial court erred (1) in determining that DeVore did not timely file her petition for judicial review and (2) in disallowing DeVore to present evidence at the motion hearing. Concluding that the petition for judicial review was untimely filed and that the record is insufficient to support the evidentiary challenge, but also concluding that the judgment contains fundamental error to the extent that it adjudicated the merits of her case, we modify the judgment and affirm it as so modified.

Background

          This is a suit for judicial review of the decision of the Texas Department of Insurance, Division of Workers’ Compensation (“DWC”) Appeals Panel that DeVore was not entitled to supplemental income benefits for the 4th, 5th, 6th, and 7th quarters of 2005–2006. The DWC Appeals Panel’s decision was filed with the Texas Workers’ Compensation Commission and became final on November 20, 2006. On January 30, 2007, DeVore filed a petition for judicial review in the Harris County district court, and AMMIC filed a plea to the jurisdiction and answer on February 21.

          A hearing on the plea to the jurisdiction took place on March 9. The record contains a letter from DeVore to the trial court dated March 28, in which she contended that she was informed by telephone that the trial court had ruled for AMMIC. In this letter, she requested an opportunity to put on evidence before the court—in essence requesting a rehearing. A notice written by DeVore, the trial court’s docket sheet, and AMMIC’s brief all refer to an April 20 hearing on DeVore’s “rehearing” letter, but no reporter’s record from that hearing appears in our record.

          The May 21 judgment of the trial court referred only to the March 9 hearing. That judgment recited that because DeVore did not put on legally sufficient evidence to establish a timely filing of her petition, the trial court did not have jurisdiction over the lawsuit. Rather than dismissing DeVore suit, the trial court affirmed the underlying administrative decisions and rendered judgment that DeVore “recover nothing of and from” AMMIC.

Standard of Review

          We review de novo a trial court’s ruling on a jurisdictional plea, construing the pleadings in the plaintiff’s favor and looking to the pleader’s intent. See Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002); Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).  

          “A plea to the jurisdiction is a dilatory plea, the purpose of which is to defeat a cause of action without regard to whether the claims asserted have merit.” Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). Although the plaintiff’s claims may form the context against which the jurisdictional plea is determined, the plea generally “should be decided without delving into the merits of the case.” Id. “[A] court deciding a plea to the jurisdiction is not required to look solely to the [plaintiff’s] pleadings but may consider evidence and must do so when necessary to resolve the jurisdictional issues raised.” Id. at 555. However, in general, “the proper function of a dilatory plea does not authorize an inquiry so far into the substance of the claims presented that plaintiffs are required to put on their case simply to establish jurisdiction.” Id. at 554. “If the evidence creates a fact question regarding the jurisdictional issue, then the trial court cannot grant the plea to the jurisdiction, and the fact issue will be resolved by the fact finder. However, if the relevant evidence is undisputed or fails to raise a fact question on the jurisdictional issue, the trial court rules on the plea to the jurisdiction as a matter of law.” Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227–28 (Tex. 2004).  

Propriety of Dismissal

          In her sole issue for review, DeVore first argues that the trial court erred in dismissing her suit for having untimely filed her petition for judicial review. Section 410.252 of the Texas Labor Code provides that a party may seek judicial review by filing suit not later than the 40th day after the date on which the decision of the appeals panel was filed with the DWC. Tex. Lab. Code Ann. § 410.252(a) (Vernon 2006). And “unless the great weight of the evidence indicates otherwise,” the receipt date of written communications from the Texas Workers’ Compensation Commission is deemed to be “five days after the date mailed via United States Postal Service regular mail.” 28 Tex. Admin. Code § 102.5(d).

          In this case, the trial court record shows that the decision of the appeals panel became final and was filed with the Texas Workers’ Compensation Commission on November 20, 2006. DeVore’s original petition for judicial review was filed in the trial court on January 30, 2007. Applying Section 410.252 of the Texas Labor Code, DeVore’s petition for judicial review had to be filed not later than December 30, 2006. See Tex. Lab. Code Ann. § 410.252(a). Consequently, we hold that her appeal was not timely filed.

          We overrule her first argument under her sole issue.  

          Allowance of Evidence  

          In her second argument on appeal, DeVore contends that the trial court erred by not allowing her to present legally sufficient evidence at a hearing.  

          We hold that nothing is presented for review. The record reflects that a hearing was held, with DeVore present, on March 9, 2007. No record of that hearing is before us. The docket sheet also shows that a second hearing was held on April 20, apparently on DeVore’s “rehearing” letter. No record of that hearing is before us, either. The May 21 judgment recited that the trial court “considered the evidence, pleadings, and arguments of counsel” from the March 9 hearing.  

          On appeal, the burden is on the party appealing from the judgment to see that sufficient record is requested and presented to show error requiring reversal. Enterprise Leasing Co. of Houston v. Barrios, 156 S.W.3d 547, 549 (Tex. 2004); see also Tex. R. App. P. 34.6(b)(1) (requiring that appellant request in writing that reporter’s record be prepared), 35.3(b)(2) (delegating responsibility to official or deputy reporter to prepare and to file reporter’s record only if appellant has requested it). There is no reporter’s record of the March 9 or the April 20 hearings, and nothing shows that appellant requested their preparation. Without a reporter’s record, we cannot ascertain whether an offer of evidence was made and rejected. It then follows that, without a reporter’s record from the March 9 hearing that is referenced in the trial court’s judgment, DeVore cannot show that the trial court erred. See Nat’l Union Fire Ins. Co. v. Wyar, 821 S.W.2d 291, 296 (Tex. App.—Houston [1st Dist.] 1991, no writ).  

          We overrule her second argument under her sole issue.  

Fundamental Error

          The trial court granted AMMIC’s jurisdictional plea, reciting in its judgment that it lacked subject-matter jurisdiction over DeVore’s lawsuit. Instead of rendering judgment dismissing DeVore’s suit, however, the trial court rendered judgment affirming the underlying administrative decisions and providing that DeVore take nothing from AMMIC.

          The proper remedy for an incurable impediment to subject-matter jurisdiction is to dismiss the suit. Texas Dept. of Human Services v. Okoli, 2007 WL 1844897, at *4 (Tex. App.—Houston [1st Dist.] June 28, 2007, pet. filed); Volume Millwork, Inc. v. W. Houston Airport Corp., 218 S.W.3d 722, 726 (Tex. App.—Houston [1st Dist.] 2006, pet. denied). “A court may not rule on the merits of claims over which it has no jurisdiction.” Williams v. Houston Firemen’s Relief & Retirement Fund, 121 S.W.3d 415, 440 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The trial court ruled on the merits of DeVore’s suit both by affirming the underlying administrative decisions and by rendering a take-nothing judgment on her claims against AMMIC. See Howeth Investments, Inc. v. White, 227 S.W.3d 205, 211 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“A take-nothing judgment is one on the merits.”). The trial court’s doing so was fundamental error. See Williams, 227 S.W.3d at 211 (holding that trial court’s adjudication of merits by rendering take-nothing judgment on claim over which it lacked subject-matter jurisdiction was “jurisdictional error”). Although the parties did not note this error, “[l]ack of subject-matter jurisdiction is fundamental error that this Court may properly raise and recognize sua sponte.” Volume Millwork, Inc., 218 S.W.3d at 726.

          Accordingly, we modify the judgment to delete the provisions affirming the underlying administrative decisions and rendering a take-nothing judgment on DeVore’s claims against AMMIC and to substitute in their place a provision dismissing her suit for want of subject-matter jurisdiction. See Williams, 227 S.W.3d at 211 (modifying judgment that ruled on merits of claim over which trial court lacked subject-matter jurisdiction to dismiss the claim and affirming the judgment as so modified).  

Conclusion

          We modify the judgment by (1) deleting the provisions affirming the underlying administrative decisions and rendering a take-nothing judgment on DeVore’s claims against AMMIC and (2) substituting in their place a provision dismissing her suit for want of subject-matter jurisdiction. We affirm the judgment as so modified.

Tim Taft

Justice

Panel consists of Justices Taft, Jennings, and Hudson.