Bobbie Lyon and Michael Lyon v. Atico International USA, Inc. ( 2009 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-08-00046-CV

Bobbie and Michael Lyon,

                                                                                    Appellants

 v.

Atico International USA, Inc.,

                                                                                    Appellee

From the 170th District Court

McLennan County, Texas

Trial Court No. 2006-1859-4

MEMORANDUM  Opinion

            Bobbie and Michael Lyon sued Atico International, USA, Inc. for products liability based on a fall Bobbie sustained when sitting on a portable picnic table manufactured by Atico.  The trial court granted Atico’s no-evidence motion for summary judgment.  On appeal, the Lyons argue that the trial court erred by: (1) granting Atico’s motion; and (2) sustaining Atico’s objections to their summary judgment evidence and excluding the evidence.  We affirm.

ANALYSIS

In issue one, the Lyons challenge the granting of Atico’s no-evidence motion for summary judgment.  In issues two, three, and four, they challenge the exclusion of three paragraphs of Michael’s affidavit.  In issue five, they challenge the exclusion of excerpts from Bobbie’s deposition testimony.

Evidentiary Issues

We consider the Lyons’s evidentiary issues first to determine which evidence we may consider when addressing the merits.  See Choctaw Props., L.L.C. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 240 (Tex. App.—Waco 2003, no pet.).  In doing so, we apply an abuse-of-discretion standard.  See Rosas v. Hatz, 147 S.W.3d 560, 563 (Tex. App.—Waco 2004, no pet.).

            The trial court excluded three paragraphs of Michael’s affidavit: 

It was obvious that the structure of the corner of the picnic table that collapsed was not sufficiently strong to support my wife when she sat on it.  I am aware of no other explanation that would explain the collapse.  I had observed the picnic table earlier that day and it did not appear damaged or modified in any way.

My weight in May, 2004 was probably in the neighborhood of 240 pounds.  I believe a significant percentage of the adults, particularly males, that live in McLennan County, Texas exceed 160 pounds.  While the percentage is probably lower, I believe a significant number of adult women in this area also exceed 160 pounds.  In my opinion, in May, 2004 Bobbie Lyon probably weighed 160 pounds and maybe a little more.

It is my observation and common knowledge that all other seats in this area, including those made of plastic and aluminum are designed and manufactured to support people whose weight exceeds 160 pounds.  Prior to May, 2004 it would never have occurred to me that a seat designed and manufactured for adult use would have a maximum chair weight load of only 160 pounds.

The trial court excluded Bobbie’s deposition testimony as to “what caused the alleged accident or how the alleged accident could have been avoided.”

We first note that Bobbie merely testified to the purchase of the table, the facts surrounding the accident, and her alleged injuries.  Her testimony does not address the cause of the accident or how it could have been avoided.  Thus, we overrule issue five. 

As for Michael, his testimony regarding the table’s structural integrity at the time of the accident was properly excluded because he did not observe the accident.  See Tex. R. Evid. 701 (Lay witness testimony must be rationally based on the perception of the witness); see also Bd. of Trs. of the Fire & Police Retiree Health Fund v. Towers, Perrin, Forster & Crosby, Inc., 191 S.W.3d 185, 193 (Tex. App.—San Antonio 2005, pet. denied)  (“The perception underlying the lay witness’s testimony may be what was seen, heard, smelled, tasted, touched or felt;” Rule 701 “presumes the witness observed or experienced the underlying facts”).  His testimony regarding the weight of other men and women in the county and the structural stability of other seats in the county is also incompetent summary judgment evidence.  See Towers, 191 S.W.3d at 193; see also Texas Division-Tranter v. Carrozza, 876 S.W.2d 312, 314 (Tex. 1994) (“[S]ubjective beliefs are no more than conclusions and are not competent summary judgment evidence.”); Residential Dynamics, LLC v. Loveless, 186 S.W.3d 192, 198 (Tex. App.—Fort Worth 2006, no pet.) (“A conclusory statement is one that does not provide the underlying facts to support the conclusion.”).

The remainder of the excluded portions of Michael’s affidavit is rationally based on Michael’s observations and experiences.  See Towers, 191 S.W.3d at 193; see also Montez v. Bailey County Elec. Coop., 397 S.W.2d 108, 111 (Tex. Civ. App.—Amarillo 1965, writ ref’d n.r.e.) (“Estimates of age, size, weight, distance, etc. made by qualified witnesses are generally held to be admissible”).  Because these portions were improperly struck, we sustain issues two, three, and four in part.

No-Evidence Motion

            We review a no-evidence summary judgment under the same standard of review as a directed verdict.  See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 581 (Tex. 2006).  “We review the evidence presented by the motion and response in the light most favorable to the party against whom the summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.”  Id. at 582.  A no-evidence summary judgment will be defeated if the non-movant produces some evidence “raising an issue of material fact” on the elements challenged by the movant.  Id.

            A manufacturing defect exists when a product deviates, in its construction or quality, from the specifications or planned output in a manner that renders it unreasonably dangerous.  Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).  In addition to showing a “deviation from specifications or planned output,” the plaintiff must show that the product was defective when it left the manufacturer and that the defect was a producing cause of the plaintiff’s injuries.  Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 41-42 (Tex. 2007). Producing cause must be (1) a substantial cause of the event in issue and (2) a but-for cause, namely one without which the event would not have occurred.  Id. at 46.

The Lyons argue that they have raised fact issues as to causation.  We disagree.  “Requiring proof of a deviation from manufacturer specifications or planned output [] comports with our recognition that expert testimony is generally encouraged if not required to establish a products liability claim.”  Ledesma, 242 S.W.3d at 42 (emphasis added).  Expert testimony is required unless “general experience and common understanding would enable the layperson to determine from the evidence, with reasonable probability, the causal relationship between the event and the condition.” Tamez, 206 S.W.3d at 583; Driskill v. Ford Motor Co., 269 S.W.3d 199, 204 (Tex. App.—Texarkana 2008, no pet.).  Whether expert testimony is required is a question of law.  Tamez, 206 S.W.3d at 583.

The Lyons have neither shown a “deviation from specifications or planned output” nor ruled out other possible causes, such as a design defect.[1] See Ledesma, 242 S.W.3d at 41-42; see also Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 807 (Tex. 2006) (Fact that tire failed was insufficient to establish a manufacturing defect, as such a failure could have been caused by a design defect).  Moreover, Bobbie’s testimony that she has suffered injuries as a result of the accident is merely her subjective belief, especially in light of her testimony suggesting that her pain could be affected by the natural aging process and arthritis.  See Carrozza, 876 S.W.2d at 314; see also Praytor v. Ford Motor Co., 97 S.W.3d 237, 241 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (Expert testimony was warranted where record showed that injuries could have resulted from more than one cause).  The evidence merely creates a suspicion that a manufacturing defect caused the table to collapse, thereby causing Bobbie’s alleged injuries.  See Driskill, 269 S.W.3d at 205.  Under these facts, causation is not within a layperson’s general experience and common understanding; thus, expert testimony was required to establish a manufacturing defect.  The Lyons offered no expert testimony.    

Accordingly, we cannot say that the Lyons have raised a fact issue as to whether the table was defective or any defect was a producing cause of the alleged injury.  See Ridgway, 135 S.W.3d at 600; see also Ledesma, 242 S.W.3d at 41-42.  Issue one is overruled. 

The trial court’s judgment is affirmed.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed June 24, 2009

[CV06]

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[1]               The Lyons alleged a design defect, but Atico’s no-evidence motion also challenged this claim.  The Lyons do not appeal on this basis.

.

You are further instructed that when the athlete is not eligible for lifetime income benefits, weekly benefits available to a professional athlete subject to the act are equal to or greater than the income benefits provided under the act if the total amount of the payments provided for in the contract or collective bargaining agreement is equal to or greater than the maximum weekly benefit available under the act multiplied by 104.[5]

            Answer yes or no. _____________________

The jury answered “No”; that is, the benefits under Hennings’s employment contract were not equal to or greater than the benefits available to him under the Act.

            Gulf filed a motion for new trial that:

· challenged the legal and factual sufficiency of the evidence to support the jury’s answer to Question 1 and asserted that the jury’s answer was “against the overwhelming weight of evidence”;

· argued that under section 406.095, Hennings had made a de facto election of his contract and CBA benefits;

· argued that the income and medical benefits that Hennings received under his contract and the CBA greatly exceeded what he could have received under the Act (104 weeks of income benefits at $533 per week); and

· argued that section 406.095 prohibits professional athletes from receiving both contract and CBA benefits and workers’ compensation benefits.

            B.  Issue on Appeal

Gulf’s first issue states: “Whether the Texas Workers’ Compensation Appeals Panel and the Trial Court committed reversible error in determining the “highest benefits” available to Hennings were those provided by the Texas Labor Code and not the benefits provided by Hennings’ Contract and Collective Bargaining Agreement, and in denying Appellant’s Motion for New Trial.  Additionally, that the great weight and preponderance of the evidence is against the finding of the jury as to Special Issue No. 1.”  We view this issue as two separate complaints: (1) as a matter of law, benefits under the employment contract exceeded those available under the Act; and (2) the evidence was factually insufficient to support the jury’s finding.

            C.  Preservation

Hennings argues that because Gulf did not object to Question 1 and did not move for a directed verdict, for JNOV, or to disregard the jury’s answer to Question 1, it has not preserved its first issue.  Hennings is partially correct in that, by Gulf’s failure to object to Question 1, appellate review is limited to the law as stated in Question 1.  See Minnesota Life Ins. Co. v. Vasquez, 192 S.W.3d 774, 778 (Tex. 2006); see also Southwestern Bell Tel. Co. v. Garza, 164 S.W.3d 607, 618-19 (Tex. 2004) (“In assessing the evidence, we assume that the portions of the charge just quoted, because they were given without objection, correctly state the law.”); Edward D. Jones & Co. v. Fletcher, 975 S.W.2d 539, 543 (Tex. 1998) (holding that legal insufficiency no-duty complaint preserved without objection to charge).

While the technically preferable motion to attack the verdict on the ground that the employment contract provided the highest benefits available to Hennings as a matter of law would have been either a motion for JNOV or a motion to disregard the answer to Question 1, we find that Gulf’s motion for new trial preserved the first contention in this issue (which we construe as a reassertion of the third point in its motion for new trial) for appellate review.[6]  See Doctor v. Pardue, 186 S.W.3d 4, 15-16 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (substance of motion is not determined solely from its caption or introduction, but instead is gleaned from body of motion and prayer for relief); Tex. R. Civ. P. 324(b).

            D.  Factual Sufficiency Issue

We first address the second contention of issue one, basing our review on the law set forth in the unobjected-to charge. 

Question 1 presented the controlling issue—which option provided Hennings the highest benefits:  (1) his employment contract with the Cowboys and the NFL’s CBA, or (2) the Workers’ Compensation Act.

Question 1 did not instruct the jury to lump together both sets of benefits to determine if Hennings’s employment benefits were equal to or greater than benefits under the Act.  Rather, it gave separate instructions about when medical benefits from the athlete’s employment are equal to or greater than medical benefits under the Act and about when income benefits from the athlete’s employment are equal to or greater than income benefits under the Act.  Therefore, and absent a contrary instruction, the jury was authorized to find that, if Hennings’s employment medical benefits alone were not equal to or greater than medical benefits under the Act, his employment benefits were not equal to or greater than benefits under the Act.

Gulf had the burden of proof on this question by a preponderance of the evidence.  See Tex. Lab. Code Ann. § 410.303 (Vernon 2006).  Thus, as the party complaining on appeal of the factual insufficiency of the evidence, it must demonstrate that the adverse finding is contrary to the great weight and preponderance of the evidence.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).  We weigh all the evidence, and we can set aside the adverse finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.  Id.

Some facts are undisputed:  Hennings suffered an on-the-job injury and the Cowboys had workers’ compensation insurance coverage; his post-injury income from his employment greatly exceeded the income benefits available under the Act; and his medical benefits from his employment contract expired when the Cowboys terminated his contract.

Hennings said that his neck injury was related to chronic arthritic bone spurs and that there also was bulging of the disc in the segment above the fusion and in the two segments below it.  Although there was no evidence quantifying the value of lifetime medical benefits available under the Act, the jury could reasonably infer that having such benefits available under the Act was greater than the medical benefits he had received from his employment, while considering that he had no future medical benefits as a result of the Cowboys’ termination of the employment contract.  Thus, the jury’s answer to Question 1 of the charge as given was not contrary to the great weight and preponderance of the evidence.

            E.  Statutory Construction

We now turn to the first contention of Gulf’s first issue, i.e., that Hennings cannot recover as a matter of law.[7] To make this determination, we must construe the statute and rules in question.

We construe a statute “first, by looking to the plain and common meaning of the statute.”  Fitzgerald v. Advanced Spine Fixation Systems, 996 S.W.2d 864, 865 (Tex. 1999).  If the statutory language is unambiguous, we adopt the plain meaning of the provision’s words and terms.  Id.  We also are to liberally construe workers’ compensation law to provide benefits to injured workers.  Albertson’s, Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999).

Hennings asserts that section 406.095 requires an election only when the professional athlete’s income and medical benefits under his employment contract are equal to or greater than the corresponding benefits under the Act.

The unambiguous language in section 406.095 and Rule 112.401(a) supports Hennings’s construction.[8] The first sentence of section 406.095(a) defines which professional athletes may not receive benefits from their employment contracts and benefits under the Act:  those professional athletes whose employment contract benefits are equal to or greater than benefits under the Act are precluded from receiving both sets of benefits.  See Tex. Lab. Code Ann. § 406.095(a).  The second sentence confirms this construction because only an athlete “covered by such a contract or agreement who sustains an injury in the course and scope of the athlete’s employment” is required to “elect to receive either the benefits available under this subtitle or the benefits under the contract or agreement.”  Id. (emphasis added).

We next address Gulf’s “piecemeal” issue:  what is the result if a professional athlete’s income benefits from his employment are equal to or greater than the income benefits under the Act, but his medical benefits from his employment are not equal to or greater than the medical benefits under the Act?

We believe that the Act requires that the income and the medical benefits from employment must each be equal to or greater than the corresponding income benefits and medical benefits available under the Act.  We base this determination on three factors.

First, section 406.095(a) says as much.  It precludes only a professional athlete “entitled to benefits for medical care and weekly benefits” from his employment that are equal to or greater than benefits under the Act from also receiving equivalent income and medical benefits under the Act.  See Tex. Lab. Code Ann. § 406.095(a) (emphasis added).  The statute does not mandate lumping together the two types of benefits to determine whether the employment set of benefits is equal to or greater than benefits under the Act.

            Second, we construe the Act liberally in favor of providing benefits to an injured worker.

            Third, when the Texas Workers’ Compensation Commission (TWCC) adopted its rules for professional athletes as required by section 406.095(b) in 1992, it responded to public comments on proposed Rules 112.401 and 112.402.[9]  One comment opined that the athlete should be allowed a choice for each of the benefits provided under the Act.  The TWCC disagreed, stating:

Article 8308-3.075 [now section 406.095] does not require that athletes be given a choice for each benefit.  It requires that, under specific conditions,[10] an athlete choose between workers’ compensation benefits and contract or collective bargaining benefits.  Based on the statute and § [Rule] 112.402, if any of the benefits fails to be equal to or greater than workers’ compensation benefits, the athlete is not allowed to make an election.

17 Tex. Reg. 6362, 6363 (1992), 1992 WL 226112 (emphases added) (to be codified at 28 Tex. Admin. Code §§ 112.401-.402) (proposed June 19, 1992) (Tex. Workers’ Comp. Comm’n)).  We agree with Hennings that this statement evinces an intent that both the income benefits and the medical benefits under the athlete’s employment contract, considered separately, must be equal to or greater than the corresponding income and medical benefits available under the Act.

We reject Gulf’s construction of the statute and rules.  We therefore hold that Hennings was not precluded from workers’ compensation benefits in addition to his employment benefits.  We overrule Gulf’s first issue.

IV.  Offset or Credit

Gulf also filed a post-verdict motion titled “motion for offset/credit,” which asked the trial court to allow an equitable offset or credit for the contractual and CBA medical and income benefits that Hennings had received.  The trial court denied that motion, and in its second issue, Gulf asserts that the trial court abused its discretion in doing so.

A trial court abuses its discretion when it acts arbitrarily and unreasonably, without reference to guiding rules or principles, or when it misapplies the law to the established facts of the case.  Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).

Gulf cites no authority in workers’ compensation law—statute, rule, or case law—that would allow a trial court to grant such an equitable offset or credit.[11] Without any authority, we cannot say that the trial court abused its discretion. Furthermore, the judgment in this case entitles Hennings to future medical benefits, and Gulf has paid only past medical benefits.  We overrule Gulf’s second issue.

V.  Disability Period

Question 2 of the charge asked whether Hennings had a period of disability after March 7, 2001, and if so, what were the beginning and ending dates.  The jury found a disability from March 8, 2001, until June 21, 2001, or fifteen weeks.

In two cross-issues, Hennings complains that the jury’s finding of fifteen weeks should be set aside because he conclusively proved, i.e., as a matter of law, that he was disabled for at least 104 weeks, the maximum disability period for income benefits under the Act.  See Tex. Lab. Code Ann. § 401.011(30) (Vernon Supp. 2007).  He says that the trial court erred in not granting his motion to disregard the jury’s finding and not entering judgment for temporary income benefits for 104 weeks.

Hennings had the burden of proof on the disability question.  See id. § 410.303.  When the party that had the burden of proof at trial complains of legal insufficiency of an adverse finding, that party must demonstrate that the evidence establishes conclusively, i.e., as a matter of law, all vital facts in support of the finding sought.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).  We first examine the record for evidence supporting the adverse finding, ignoring all evidence to the contrary.  Id.  If more than a scintilla of evidence supports the adverse finding, our inquiry ends.  Id.  “More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.”  Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995) (citations omitted). In reviewing the legal sufficiency of the evidence, we view the evidence in the light favorable to the finding, crediting favorable evidence if a reasonable factfinder could, and disregarding contrary evidence unless a reasonable factfinder could not.  City of Keller v. Wilson, 168 S.W.3d 802, 807, 822 (Tex. 2005).

Disability is “the inability because of a compensable injury to obtain and retain employment at wages equivalent to the preinjury wage.”  Tex. Lab. Code Ann. § 401.011(16).

Hennings argues that he suffered a career-ending injury, was terminated by the Cowboys, and was not able to return to any job or profession earning his preinjury wage.  Hennings testified that his surgeon indicated that he had received an excellent result from his surgery, that his prognosis was excellent, and that he was released from his surgeon’s care. Hennings also said that while his surgeon advised against his continuing to play football, no physician prohibited him from playing.  As of the time of trial, Hennings had not seen a physician for his neck injury in over two years.  Hennings admitted that he could have played football for either the Cowboys or another team after June 21, 2001, at his own option, but he chose to retire to avoid the substantial risk of further injury to his cervical spine.

Hennings’s admission that he could have continued playing football but chose not to is more than a scintilla of evidence that supports the jury’s fifteen-week disability period finding.  Accordingly, we overrule Hennings’s two issues.

VI.  Conclusion

            For the reasons stated, we affirm the trial court’s judgment.

                                                                                    BILL VANCE

Justice

Before Justice Vance and

Justice Reyna[12]

Affirmed

Opinion delivered and filed January 30, 2008

[CV06]           

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[1]  The Labor Code’s provisions governing workers’ compensation is commonly called the Workers’ Compensation Act and will be referred to in this opinion as “the Act.”

[2]  We will hereafter refer to the contract of employment and the CBA collectively as his “employment contract.”

[3]  The judge also found that Hennings’s income under his employment was higher than income benefits available under the Act.

[4] See Tex. Lab. Code Ann. § 406.095(c) (Vernon 2006) (defining professional athlete as a person employed as a professional athlete by a franchise of the National Football League; the National Basketball Association; the American League of Professional Baseball Clubs; the National League of Professional Baseball Clubs; the International Hockey League; the National Hockey League; or the Central Hockey League).

[5]  These instructions essentially track Rule 112.402(a-b).

[6]  The remedy is, however, limited to a remand for a new trial.  See Horrocks v. Texas Dep’t Transp., 852 S.W.2d 498, 499 (Tex. 1993).

[7]  Ordinarily we would address this contention first because it could result in a rendition of judgment.  Here, only a remand is possible.  See footnote 6.

[8]  Under this construction, Hennings essentially asserts that there are professional athletes who may recover both employment benefits and workers’ compensation benefits.

[9]  The TWCC’s interpretation of its own rules is entitled to deference by the courts.  See Public Util. Comm’ v. Gulf States Util., 809 S.W.2d 201, 207 (Tex. 1991).  An administrative agency has the power to interpret its own rules, and its interpretation is entitled to great weight and deference and is controlling unless it is plainly erroneous or inconsistent.  Continental Cas. Co. v. Rivera, 124 S.W.3d 705, 710 (Tex. App.—Austin 2003, pet. denied); accord State v. New, 159 S.W.3d 232, 234 (Tex. App.—Fort Worth 2005, no pet.).

[10]  We assume without deciding that these “specific conditions” are what we address in this opinion:  only an athlete whose employer has workers’ compensation insurance coverage and whose employment benefits are equal to or greater than workers’ compensation benefits is required to elect which set of benefits he will receive and may not receive both sets of benefits.

[11]  Moreover, we determined above that professional athletes who are not required to elect by section 406.095 may recover both employment benefits and workers’ compensation benefits.  Thus, an offset or credit as claimed by Gulf would contravene section 406.095.

[12]             We issue this opinion with only two justices participating because of Chief Justice Gray’s recusal.  An explanation is in order.

This appeal was submitted without argument on March 7, 2007.  We issued an opinion (now withdrawn) on July 11, 2007. Hennings filed a motion for rehearing, and we requested a response, which Gulf filed.

This Court’s “Procedures for Internal Deadlines for Approval of Opinions and Orders,” which sets deadlines for the approval or non-approval of the opinions and orders that the Court issues, specifies that an opinion issued after a motion for rehearing is filed will be issued on the first Wednesday after 30 days after the date it is distributed by the author to the remaining justices.  If a reviewing justice does not indicate an intent to concur or dissent by two weeks prior to the issue date or having so indicated does not distribute a proposed concurring or dissenting opinion by one week prior to the issue date, then that justice is deemed to have approved the draft opinion.  See Tex. A&M Univ. v. Bading, 236 S.W.3d 801, 809 (Tex. App.—Waco 2007, pet. filed) (op. on reh’g); see also Tesmec USA, Inc. v. Whittington, 192 S.W.3d 178, 183-88 (Tex. App.—Waco 2006, pet. denied) (per curiam) (op. on reh’g).  This Court’s internal deadline procedures were designed in part to implement that portion of the Texas Standards for Appellate Conduct which provides, “The court will endeavor to avoid the injustice that can result from delay after submission of a case.”  Tex. Standards of App. Conduct, The Court’s Relationship with Counsel No. 5, reprinted with Tex. R. App. P. (Vernon Supp. 2007).

The pertinent draft of the proposed opinion in this cause was furnished to Chief Justice Gray on December 11, 2007.  He noted “intend to concur or dissent” on December 27, 2007; however, no proposed concurring or dissenting opinion was distributed by the specified date, January 9, 2008.

Sometime between December 27, 2007 and January 9, 2008, Chief Justice Gray requested that he be shown as “not participating” in this decision.  This was an unexplained reversal of his prior stance on the issue of whether all three justices must participate in a decision.  See Tesmec USA, 192 S.W.3d at 181 (Gray, C.J., dissenting on reh’g) (“I do not believe I have the option to ‘not participate’ in casting a vote on a judgment disposing of an appeal.  I believe it is my ethical duty to participate.”) (citation omitted).  Consistent with this Court’s internal deadline procedures, Chief Justice Gray was deemed to have approved the Court’s opinion on January 9.  See Bading, 236 S.W.3d at 811.  Thus, we respectfully declined his request to be shown “not participating.”  Thereafter, Chief Justice Gray recused himself.

Therefore, in order “to expedite a decision,” we invoke Rule of Appellate Procedure 2, to the extent necessary, to suspend Rule 41.1(a)’s possible application and to issue this opinion with two justices participating.  Tex. R. App. P. 2.