Violeta Paskauskiene v. Texas Workforce Commission & Microconsult Inc. ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00358-CV
VIOLETA PASKAUSKIENE APPELLANT
V.
TEXAS WORKFORCE APPELLEES
COMMISSION & MICROCONSULT,
INC.
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Violeta Paskauskiene appeals from a summary judgment upholding the
Texas Workforce Commission’s (TWC) denial of her application for
unemployment benefits. In four issues, she contends that the trial court erred by
denying her a jury trial, that the trial court erred by refusing to deem admitted
requests for admissions she sent to TWC, that the trial court erred by granting
1
See Tex. R. App. P. 47.4.
TWC’s motion for summary judgment and denying hers, and that TWC’s decision
to deny her benefits was not supported by substantial evidence that she
committed workplace misconduct. We affirm. 2
Factual Background
Paskauskiene was employed by Microconsult, Inc. to, among other things,
review testing results for products. Microconsult terminated her employment on
March 7, 2011, and she applied to TWC for unemployment benefits.
Microconsult contested her right to receive benefits, and a TWC hearing officer
determined that she was ineligible to receive benefits because Microconsult
terminated her for misconduct related to her work. Although Paskauskiene
exhausted her agency appeals, TWC continued to deny her benefits.
Accordingly, she sued TWC and Microconsult in district court challenging TWC’s
decision. TWC and Microconsult filed a joint motion for summary judgment, and
Paskauskiene filed a competing motion for summary judgment. The trial court
granted TWC and Microconsult’s motion and denied Paskauskiene’s in a final
judgment, which she now appeals. 3
2
We deny TWC’s motion to dismiss the appeal for procedural defects in
Paskauskiene’s brief. See Tex. R. App. P. 38.9(a).
3
Microconsult settled a federal suit brought against it by Paskauskiene, and
as part of the settlement, withdrew its challenge to her claim for benefits, without
prejudice to TWC’s right to defend its decision. Thus, only TWC filed an
appellee’s brief in this appeal.
2
Requests for Admissions
In her second issue, Paskauskiene claims that the trial court erred by
refusing to deem admitted requests for admissions that she sent to TWC.
Paskauskiene served the requests on TWC’s counsel by facsimile on
February 7, 2012 at 5:35 p.m. TWC’s counsel mailed responses to the requests
on March 9, 2012.
Rule 198.2 provides that “[t]he responding party must serve a written
response [to requests for admissions] on the requesting party within 30 days
after service of the request.” Tex. R. Civ. P. 198.2(a). If a response is not timely
served, the request is considered admitted without the necessity of a court order.
Tex. R. Civ. P. 198.2(c). Documents served after 5:00 p.m. of the local time of
the recipient are deemed served the following day. 4 Tex. R. Civ. P. 21a. Thus,
Paskauskiene’s requests were deemed served February 8, 2012, and TWC’s
responses were due March 9, 2012. The record contains a certificate of service
showing that TWC’s counsel mailed the responses to Paskauskiene by first class
mail on March 9, 2012. Because proper service by mail is complete upon mailing
and because Paskauskiene received the responses on March 11, 2012, within
three days of mailing, TWC’s responses were timely and thus not admitted. See
id.; Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (providing that
4
Paskauskiene says in her brief that the admissions were served at 5:35
p.m. Eastern Standard time, but the fax confirmation shows that the requests
were sent from an 817 number, the area code for Tarrant County, Texas, in the
Central Standard time zone. See Tex. R. Evid. 201(b).
3
attorney’s certificate of service is prima facie evidence of service of a notice).
We overrule Paskauskiene’s second issue.
Propriety of Summary Judgment for TWC
In her third issue, Paskauskiene argues that her constitutional rights were
violated when the trial court granted TWC’s motion for summary judgment and
denied hers. In her fourth issue, she contends that TWC’s decision to deny her
benefits is not supported by substantial evidence. Because both of these issues
relate to the propriety of the trial court’s granting summary judgment, we consider
these issues together.
Standard of Review
Judicial review of a TWC decision is “by trial de novo based on the
substantial evidence rule.” Tex. Lab. Code Ann. § 212.202(a) (West 2006). This
means that the trial court must determine whether there is substantial evidence
to support TWC’s ruling. Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986); Int’l
Union, United Auto., Aerospace & Agric. Implement Workers of Am.-UAW v.
Gen. Motors Corp., 104 S.W.3d 126, 129 (Tex. App.––Fort Worth 2003, no pet.).
This issue is strictly one of law; the administrative agency is the primary fact-
finding body. Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer, 662
S.W.2d 953, 956 (Tex. 1984); Int’l Union, 104 S.W.3d at 129. Summary
judgment is proper in an appeal to the trial court based on a substantial evidence
review because the only issue before the trial court is a question of law. City of
4
Arlington v. Centerfolds, Inc., 232 S.W.3d 238, 243 (Tex. App.––Fort Worth
2007, pet. denied).
Substantial evidence is more than a scintilla, but less than a
preponderance of the evidence. Blanchard v. Brazos Forest Prods., L.P., 353
S.W.3d 569, 572 (Tex. App.––Fort Worth 2011, pet. denied); City of Houston v.
Tippy, 991 S.W.2d 330, 334 (Tex. App.––Houston [1st Dist.] 1999, no pet.).
Under a substantial evidence review, the issue is whether the evidence
introduced before the trial court reveals facts in existence at the time of TWC’s
ruling that reasonably support the decision made by the TWC tribunal, that is,
whether reasonable minds could have reached the same conclusion.
Collingsworth Gen. Hosp. v. Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998). The
issue is not whether TWC’s decision was correct. Blanchard, 353 S.W.3d at 572.
Even when an agency’s decision is shown to be against the great weight and
preponderance of the evidence, a reviewing court is bound, as a matter of law, to
affirm the agency decision so long as a reasonable person could have reached
the conclusion at which the agency arrived. Tex. Workforce Comm’n v. BL II
Logistics, L.L.C., 237 S.W.3d 875, 878–79 (Tex. App.––Texarkana 2007, no
pet.). The trial court may set aside a TWC decision only if it determines that the
decision was made without regard to the law or the facts and, therefore, was
unreasonable, arbitrary, or capricious. Mercer, 701 S.W.2d at 831.
A TWC decision regarding unemployment benefit payments carries a
presumption of validity. Collingsworth Gen. Hosp., 988 S.W.2d at 708. The
5
burden is on the party seeking to set aside a TWC decision to prove that the
ruling is not supported by substantial evidence. Mercer, 701 S.W.2d at 831. We
look at the evidence presented to the trial court, not the agency record.
Nuernberg v. Tex. Emp’t Comm’n, 858 S.W.2d 364, 365 (Tex. 1993). Although
the standard of review prohibits the trial court from simply reviewing the agency’s
record to determine if the decision is supported by substantial evidence,
individual items from the agency’s record may be introduced independently
before the trial court as part of a de novo review. Id.
Evidence Supporting TWC’s Motion for Summary Judgment
TWC attached to the motion for summary judgment the affidavits of
Microconsult’s President William Bryan, its Laboratory Director Amie Myers, and
its Quality Assurance/Quality Control Manager Myla Tuazon, as well as parts of
the TWC administrative record. See id.; JMJ Acquisitions Mgmt., LLC v.
Peterson, No. 05-12-00263-CV, 2013 WL 2635961, at *3 (Tex. App.––Dallas
June 13, 2013, no pet. h.).
Bryan detailed his experience in microbiology, including experience with
the testing of cosmetics, over-the-counter drugs, and consumer products, as well
as his familiarity with the FDA guidelines applicable to Microconsult’s testing
laboratory. He stated that Microconsult is an FDA-registered laboratory and is
licensed to test class 2 and 3 controlled substances by the DEA. In addition, he
said it “operates under good manufacturing practices and good laboratory
practice regulations” and that its policy is “to ensure accurate and timely testing
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services, and to continuously meet and/or exceed the expectations of [its]
customers through the day-to-day interaction.”
Bryan averred that Microconsult hired Paskauskiene on June 1, 2010 as a
laboratory contractor to review test data and results for accuracy, including “to
ensure the data was entered correctly on Microconsult, Inc.’s test results
reports.” Her “main job function” if there were mistakes in a test record was “to
catch the mistakes and have the chemist or lab technician correct those
mistakes.” She was also to “sign the test record under the ‘Reviewed By’ section
signifying that she had reviewed the ENTIRE test record and that all of the
information thereon was accurate.” According to Bryan, this procedure was
required as good manufacturing practices to “protect[] the consumer from
deleterious effects and protect[] and keep[] Microconsult, Inc. in regulatory
compliance.”
Bryan also stated that he had the authority to make hiring and firing
decisions and to supervise disciplinary proceedings regarding Microconsult’s
employees.
According to Bryan, the following event prompted Paskauskiene’s
termination:
On March 4, 2011, one of Microconsult, Inc.’s customers was
at our offices to perform an audit for their own quality control
standards. During this audit, the client noticed a mistake on a lab
report Ms. Paskauskiene had reviewed and signed off on as being
accurate in all respects. Specifically, the audit revealed that certain
information on the subject client report concerning test data was
incorrect. However, Ms. Paskauskiene had nonetheless signed the
7
report, representing that it had been reviewed by her for accuracy
and that the entire report was accurate.
. . . Thus, on the afternoon of March 4, 2011, I called a
meeting with Amie Myers, Microconsult’s Laboratory Director, Myla
Tuazon, Microconsult’s Quality Assurance/Quality Control Manager
and Ms. Paskauskiene. The purpose of this March 4, 2011 meeting
was to discuss the mistake discovered by our client during their
audit, which Ms. Paskauskiene had failed to notice. During the
meeting, I asked Ms. Paskauskiene about the mistake revealed by
the audit, which the customer had found, although Ms.
Paskauskiene had approved the inaccurate report; and why she had
approved such a report. Ms. Paskauskiene responded by stating
that she never reviewed the entire test results reports as she did not
have time. This meant that she was falsifying company testing
records, including the subject report.
. . . Additionally, during the meeting, Amie Myers showed Ms.
Paskauskiene several other test records containing mistakes which
had been signed by Ms. Paskauskiene as being accurate even
though such reports contained several mistakes. Ms. Myers had
recently reviewed the reports during a routine company quality
control audit in which random test results reports approved by
Microconsult, Inc. employees, including Ms. Paskauskiene, were
selected for further review. These reports could be reports that Ms.
Paskauskiene or others had signed. When Ms. Myers asked Ms.
Paskauskiene why there were so many test records from October
with mistakes that she had nonetheless signed and approved, as an
example of the mistakes found during the audit, Ms. Paskauskiene
stated that maybe she was distracted during that time due to her
birthday which is in October.
. . . Based on Ms. Paskauskiene’s statement that she never
reviewed the entire test records, I stated that the meeting was over. I
knew at that time that Microconsult, Inc. would be required to
terminate Ms. Paskauskiene because she was exposing
Microconsult, Inc. and our customers to liability and had jeopardized
customer relationships by not reviewing the entire test results reports
as she was required to do, but nonetheless signed off on them
claiming she had done so. She also violated company policy by
falsifying documents. Thus, I made the decision that Ms.
Paskauskiene would be terminated the following Monday morning,
March 7, 2011, as it was past 5:00 p.m. on Friday. Ms.
8
Paskauskiene did not come in to work on March 7, 2011, due to an
apparent doctor visit. Thus, we spoke on the phone the morning of
March 8, 2011, wherein I informed Ms. Paskauskiene that she was
terminated. I then e-mailed her the March 7, 2011 termination letter
to her, which would have been given to her on March 7th if she had
come into work. True and correct copies of my March 8 2011, e-mail
and termination letter are attached hereto as Exhibits “C” and “D”
and incorporated herein by reference.
. . . Ms. Paskauskiene also had a history of tardiness and cell
phone use on company time for personal calls. These were also
factors in Microconsult, Inc.’s decision to terminate Ms.
Paskauskiene, but alone they would not have resulted in her
termination at that time. The primary reason Ms. Paskauskiene was
terminated was because she admittedly failed to review entire lab
test results reports, but nonetheless signed off on such reports
indicating that she had done so; and in doing so she falsified
company records, subjected Microconsult, Inc. and its customers to
liability and jeopardized Microconsult, Inc.’s company records and
customer relationships.
The attached termination letter includes the following:
Your signature on the raw data form and certificate of analysis
ensures that all data and results in the entire packet have been
reviewed. When I asked you how you could miss the error, you
stated that you usually do not review the entire document, yet you
signed that you did. This is falsification of a company document,
which as stated in the company policy that you signed, is an offense
that results in immediate termination.
You have missed a significant number of mistakes on reports
following your review and signature. It is your job and only job that
you review the various chemistry chain of custody forms including
data, signatures, etc. for the certificate of analysis forms. You
stated in your e-mail of March 4, 2011 that no deficiencies had ever
been discussed with you previously. Amie Myers has brought the
pink folders and sample packets to you several times a week for you
to correct the items you missed.
9
Amie Myers averred that she had been the Laboratory Director of
Microconsult for three years and, before that, the Laboratory Manager. She
further detailed her training, experience, and responsibilities, including her
familiarity with its practices. According to Myers,
When Ms. Paskauskiene was first hired, I spent a full two weeks with
her at a table in my office training her on reviewing documentation,
chemistry methods, raw data, final reports and other ancillary
training regarding her position. There were other staff members who
witnessed this training. The President of Microconsult, William
Bryan, also witnessed much of the training that occurred in my
office. Ms. Paskauskiene’s training is documented on numerous
training forms which she signed and dated following her training.
During Ms. Paskauskiene’s training, I clearly explained to her that
her job duties largely consisted of, among other things, fully
reviewing data and test records to verify their accuracy. In this
regard, I explained to Ms. Paskauskiene the fact that it was essential
for Microconsult, Inc.’s test records to be accurate because
inaccurate reports subject Microconsult, Inc. and its customers to
liability and jeopardize Microconsult, Inc.’s customer relationships
and safety to consumers. I also explained this to her at her initial job
interview and on her first day of employment.
. . . A significant part of my job duties is to perform internal
quality control audits whereby I randomly audit test records
generated and/or approved by Microconsult employees. In January
of 2011, I performed such an audit concerning Microconsult’s test
records. These randomly selected test records from the Fall of 2010
were reports which Ms. Paskauskiene or another reviewer approved
during the fourth quarter of 2010. Ms. Paskauskiene had reviewed,
signed and dated the majority of these test records, allegedly
confirming that she had reviewed the entire record. In my first
performance review of Ms. Paskauskiene, on August 4, 2010,
following her first two months of employment, I advised Ms.
Paskauskiene that she needed to pay attention to detail and avoid
mistakes, as well as other areas that were less than satisfactory. A
true and correct copy of this August 4, 2010 performance review is
attached hereto as Exhibit “B” and incorporated herein by reference.
10
. . . On March 4, 2011, an audit by one of Microconsult’s
customers revealed a mistake on a lab test record Ms.
Paskauskiene had reviewed and signed off on as being accurate in
all respects. Specifically, the client’s audit revealed that information
on the client’s test record was incorrect. However, Ms.
Paskauskiene had signed off on the report verifying its accuracy, in
spite of the fact Ms. Paskauskiene later admitted she had not
actually reviewed the entire test record.
. . . The customer audited Microconsult’s procedures,
methods, reports, etc. and had generally complimented us on our
overall audit results and the manner in which we test by our
procedures, etc. It was at the end of the audit that the customer
found the mistake which Ms. Paskauskiene had missed even though
she had signed the test records noting she had reviewed and
verified its accuracy. The customer questioned Myla Tuazon and
me as to how the mistake was made and then not caught on review.
. . . Thereafter, I attended a March 4, 2011 meeting with
William Bryan, President of Microconsult, Myla Tuazon, the Quality
Assurance Manager and Ms. Paskauskiene. The purpose of the
meeting was to discuss the mistake discovered by the client during
its audit, the mistake Ms. Paskauskiene had failed to catch. When
Ms. Paskauskiene was asked about the mistake revealed by the
client’s audit, Ms. Paskauskiene stated that she never reviewed the
entire test record as she did not have time.
. . . During the March 4, 2011 meeting, I also brought to Ms.
Paskauskiene’s attention test records from the routine internal audit
that was in process, which is part of Microconsult’s standard
operating procedures and required by the FDA. In my internal audit, I
had found many mistakes on various test records from the fourth
quarter of 2010, which Ms. Paskauskiene had nonetheless
reviewed, signed and dated memorializing that she had allegedly
reviewed the entire test record and that they were accurate. It
appeared she had not reviewed the entire test record as required
because there were just too many errors missed on these test
records. When I asked her why there were so many test records
from October 2010 that contained errors that she had nonetheless
signed and approved, as an example, she stated that maybe she
was distracted during that time because it was her birthday.
11
An excerpt from Myers’s attached review of Paskauskiene states, “Ensure
you and others are keeping up with documentation, utilizing correct forms,
thoroughly reviewing documentation before you initial or sign for reviewing
paperwork. There are still lots of mistakes being caught during the review
process.”
Tuazon’s affidavit corroborated Bryan’s and Myers’s accounts of what
transpired on March 4, 2011.
Also attached to TWC’s motion was a copy of the “appeals folder” from
TWC, authenticated as a public record maintained by TWC by its custodian of
records. Those records show that a TWC hearing examiner found, and the TWC
appeals tribunal agreed, that Paskauskiene was discharged from Microconsult
for “misconduct connected with the work.” The appeals tribunal made the
following findings of fact:
The employer discharged the claimant on March 7, 2011 for violating
known company policies, specifically regarding dishonesty and
falsifying records. The employer had a disciplinary policy under
which an employee would be dismissed for dishonesty and
falsification of company records. The claimant knew the employer’s
policies in this regard having received and signed for a copy of the
Employee Handbook before she began her employment on
June 1, 2010.
The claimant represented to her employer that she had reviewed
each page of the reports which had been submitted to her. The
employer learned from a customer audit that the claimant had not
reviewed the reports as she had reported by her signature. The
claimant admitted that she had misrepresented her reviews and had
not fully reviewed the reports. The employer confronted the claimant
about her violation of the employer’s rules by letter on March 7, 2011
and discharged her.
12
The tribunal thus concluded (1) that, under applicable precedent,
Paskauskiene committed misconduct by misrepresenting to Microconsult that
she had properly reviewed the test reports, (2) that the test results were
important to Microconsult’s interests, and (3) that she should have known she
was obligated to inform Microconsult correctly of her reviews. The tribunal found
Microconsult’s evidence that Paskauskiene said she did not review the reports in
their entirety more persuasive than her testimony that she did not admit she
violated Microconsult’s policy. 5 The tribunal thus affirmed the hearing examiner’s
decision.
Paskauskiene’s Motion for Summary Judgment
Paskauskiene’s motion for summary judgment asserted that (1) the TWC
decision was not supported by substantial evidence and was arbitrary, (2) there
was no evidence she committed misconduct or falsified reports, and (3) TWC
failed to consider or admit documents that she had timely filed. As part of her
argument, she contended that TWC failed to consider that she was fired because
of a “medically verified illness.”
Paskauskiene attached an affidavit detailing her training and experience in
FDA-regulated chemical testing. She said that Microconsult did not provide her
adequate training for her position, that she was “very heavily overloaded with . . .
5
TWC’s records also indicate that Paskauskiene claimed that she always
reviewed test results in their entirety, that she never said she did not, and that
she was fired without warning when she emailed that she was sick on
March 7, 2011 and could not come back to work until March 14, 2011.
13
work” and had to “review [an] unusual amount of data,” that she caught many
mistakes by others but was never told of any concerns about her work, that
Microconsult created rules that only applied to her and forced her to work
overtime, that she began to complain about her work environment prompting
Microconsult to retaliate against her by performing “spot checks” of her work, and
that the paperwork showed to her on March 4, 2011 could have been taken from
her office and used without her permission and likely was not to be used for
reporting purposes. She also averred that (1) she sent an email to Bryan the
night of March 4, 2011 complaining that she was being retaliated against and
(2) that she hurt her back that night moving sample boxes that she had packed.
According to Paskauskiene, she was out on March 7, 2011 because of a doctor’s
appointment for that back injury.
Also attached is a separate affidavit from Paskauskiene stating the
following:
I brought this claim for unemployment benefits before the
Texas Workforce Commission. I previously attended a hearing
regarding my unemployment benefits before a hearing officer of the
[TWC]. At my hearing, I was not permitted to discuss significant
evidence in my favor as well as present exhibits that I had prepared
for the hearing. I was also not permitted to testify on my own behalf
despite my objections otherwise. I firmly believe that had I been
allowed to present all my evidence and given a fair opportunity to
rebut Microconsult’s misconstrued allegations then the TWC hearing
must have resulted in a decision in my favor.
. . . Microconsult’s claim that I falsified company documents is
simply not true. At no point did I ever state that I “never read the
reviews” as Microconsult claims. During my meeting with
Microconsult management on March 4, 2011, I explained to William
14
Bryan, Amie Myers, and Myla Tuazon that the workload had become
increasingly burdensome. I had requested assistance to keep up
with the heightened pace of work. Microconsult, however, has
misconstrued my statements from that meeting to conclude that I
never reviewed the lab technicians’ reports. This is wholly untrue
because I have always reviewed the entirety of every report before
signing it and have never admitted otherwise. More so, during my
TWC hearings, Myla Tuazon and Amie Myers even specifically
admitted that they did not believe I had intentionally falsified my
reviews, see Exhibit M.
. . . Any errors that I may have committed during the course of
my reviews would have been no more than the result of
commonplace mistake, as opposed to falsification as Microconsult
suggests. I worked hard while at Microconsult, as my former
coworkers can attest, and I dutifully performed my duties within the
best of my abilities. With the constant exchange of papers that
occurs every day at Microconsult, the company’s lack of
organization, and the rapid turnaround speed expected of us, it
would have been close to impossible for any reviewer to catch all
mistakes when reviewing the lab technicians’ reports. I have never
been reported for workplace misconduct that would otherwise
suggest I might have falsified reports and I consistently performed to
company expectations.
The trial court sustained numerous objections to other summary judgment
evidence proferred by Paskauskiene; she does not complain about any specific
ruling on appeal. Thus, we will discuss only the evidence that the trial court
considered. See Tex. R. App. P. 33.1; Cammack the Cook, L.L.C. v. Eastburn,
296 S.W.3d 884, 889 (Tex. App.––Texarkana 2009, pet. denied).
Analysis
A person is “disqualified for benefits if [she] was discharged for misconduct
connected with [her] last work.” Tex. Lab. Code Ann. § 207.044(a) (West 2006).
Labor code section 201.012(a) defines “misconduct” as “mismanagement of a
15
position of employment by action or inaction, neglect that jeopardizes the life or
property of another, intentional wrongdoing or malfeasance, intentional violation
of a law, or violation of a policy or rule adopted to ensure the orderly work and
the safety of employees.” Id. § 201.012(a).
The TWC appeals tribunal found, and TWC presented summary judgment
evidence, that Microconsult’s company policy provided for termination upon
dishonesty or falsification of records, that Paskauskiene’s signature on a test
report indicated that she had reviewed the entire document, that she admitted
she signed at least one such report without reviewing the entire document, and
that Microconsult’s review procedure was required by good manufacturing
practices to protect consumers and ensure that Microconsult was in regulatory
compliance. We conclude and hold that, based on the above, the trial court
properly held as a matter of law that substantial evidence supports TWC’s
decision to deny benefits to Paskauskiene. See Burton v. Tex. Emp’t Comm’n,
743 S.W.2d 690, 693 (Tex. App.––El Paso 1987, writ denied); see also Tex.
Workforce Comm’n, Appeals Policy & Precedent Manual § 140.25(3)–(4)
Dishonesty: Falsification of Record, TWC Appeal No. 3276-CA-76
(Oct. 1, 1996), available at http://www.twc.state.tx.us/ui/appl/mc.pdf (denying
benefits when claimant was discharged for placing supervisor’s initials on
expense account on one occasion and, on four other occasions, had some other
person or persons place the supervisor’s initials on expense accounts, because
even though claimant was entitled to reimbursement, he had known that his
16
supervisor was supposed to approve such expense accounts). Moreover,
although Paskauskiene asserted in her motion for summary judgment and in her
response to TWC’s motion for summary judgment that the TWC hearing officer
did not allow her to testify or present certain evidence on her behalf, she did not
specify which testimony or evidence she was not allowed to present, nor can we
consider the evidence the trial court did not consider because it granted TWC’s
objections to it. E.g., Kaufman v. Islamic Soc’y of Arlington, 291 S.W.3d 130,
137 (Tex. App.––Fort Worth 2009, pet. denied).
We conclude and hold that the trial court did not err by granting TWC’s
motion for summary judgment and denying Paskauskiene’s. We overrule her
third and fourth issues.
Jury Demand
In her first issue, Paskauskiene contends that the trial court erred by
denying her a jury trial because she filed a jury demand and because she was
entitled to a de novo jury trial of her claim under section 2001.173(b) of the
government code. Tex. Gov’t Code Ann. § 2001.173(b) (West 2008) (“On
demand, a party to a trial de novo review may have a jury determination of each
issue of fact on which a jury determination could be obtained in other civil suits in
this state.”). By its plain language, section 2001.173(b) provides for a jury trial
under the same circumstances as it could be obtained in other civil suits. Id. A
party does not have an absolute right to a jury trial in a civil case. See Green v.
W.E. Grace Mfg. Co., 422 S.W.2d 723, 725 (Tex. 1968); Vann v. Gaines, No. 02-
17
06-00148-CV, 2007 WL 865870, at *3 (Tex. App.—Fort Worth Mar. 22, 2007, no
pet.) (mem. op.). Summary judgment is a procedure that may be used to
dispose of a case when there are no genuine issues of material fact and only
questions of law exist. See Green, 422 S.W.2d at 725; Vann, 2007 WL 865870,
at *3. When, as here, no such issues of fact exist to submit to a jury, the
granting of summary judgment will not violate a party’s constitutional right to a
jury trial. See Green, 422 S.W.2d at 725; Vann, 2007 WL 865870, at *3.
Accordingly, we overrule Paskauskiene’s first issue.
Conclusion
Having overruled Paskauskiene’s four issues, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.
DELIVERED: August 8, 2013
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