Great Divide Insurance Company v. Alcus Reshod Fortenberry ( 2021 )

REVERSE and REMAND and Opinion Filed July 26, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01541-CV
GREAT DIVIDE INSURANCE COMPANY, Appellant
V.
ALCUS RESHOD FORTENBERRY, Appellee
On Appeal from the 134th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-18-06953
MEMORANDUM OPINION
Before Justices Schenck, Reichek, and Carlyle
Opinion by Justice Schenck
This appeal arises from a workers’ compensation judicial review proceeding
in which Alcus Reshod Fortenberry sought to set aside an adverse decision of the
Texas Department of Insurance, Division of Workers’ Compensation’s (the “DWC”)
appeals panel adopting the hearing officer’s earlier denial of Fortenberry’s claim.
Following a jury trial, the trial court set aside the DWC appeals panel’s decision and
entered a judgment awarding Fortenberry temporary income benefits.
Great Divide Insurance Company (“Great Divide”), the workers’
compensation carrier, appeals the trial court’s judgment, urging, in its first issue, the
trial court erred in denying its motion to transfer venue from Dallas County to Travis
County. Great Divide’s remaining issues relate to the jury’s findings, the sufficiency
of the evidence, the damages awarded, and the trial court’s rulings on certain
evidentiary objections.
We conclude Fortenberry failed to show venue was proper in Dallas County
and that there is no probative evidence in the record to show venue was proper in
Travis County. Because neither party made the necessary venue showing, we
reverse the trial court’s judgment and remand the case to the trial court to conduct
further proceedings on the issue of venue.1 Because all issues are settled in law, we
issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
On May 14, 2015, after graduating from Texas Tech University, Fortenberry
entered into an NFL Player Contract with the Dallas Cowboys to become an
offensive lineman for the football team. While the term of the contract was for three
football seasons, the contract contained various early termination provisions.
On August 2, 2015, Fortenberry sustained a work-related injury to his knee
while practicing at the Dallas Cowboys’ training camp in Oxnard, California. On
August 5, Fortenberry was placed on injured reserve with an estimated recovery
period of nine to twelve months. On May 9, 2016, the Dallas Cowboys terminated
1
“In the event that the parties shall fail to make prima facie proof that the county of suit or the specific
county to which transfer is sought is a county of proper venue, then the court may direct the parties to make
further proof.” TEX. R. CIV. P. 87(3)(d); see also Ken-Do Contracting, L.P. v. F.A. Brown’s Constr., L.L.C.,
No. 05-16-00373-CV, 2017 WL 3381105, at *2, 4 (Tex. App.—Dallas Aug. 7, 2017, pet. denied) (mem.
op.).
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Fortenberry for failing to establish or maintain excellent physical condition to the
satisfaction of the team’s physician and because his skill or performance had been
unsatisfactory as compared with that of other players. Pursuant to the terms of the
NFL Player Contract, Fortenberry received compensation for the entire 2015 season,
and “injury protection” payments for the 2016 and 2017 seasons.
Fortenberry filed a claim for workers’ compensation benefits. That claim was
denied, and Fortenberry filed a dispute with the DWC and requested a Benefit
Review Conference, followed by a Contested Case Hearing (“CCH”). An
Administrative Law Judge (“ALJ”) conducted the CCH and later entered her
decision and order finding Fortenberry did not have a compensable disability under
the Workers’ Compensation Act. An appeals panel adopted the ALJ’s decision.
Fortenberry filed suit for judicial review of the DWC’s decision in Dallas
County, Texas alleging, in part, that he “was a resident of Dallas County, Texas at
the time of his injury,” and that “[u]nder § 410.252 Texas Labor Code, Dallas County
is the proper venue for this case.”2 On July 2, 2018, Great Divide filed a motion to
transfer venue, objecting to venue in Dallas County and asserting Fortenberry was a
resident of Tylertown, Mississippi, and not Dallas County, at the time of his injury;
that Great Divide does not have an office, agent or representative in Dallas County;
2
Section 410.252(b)(1) of the labor code provides, “[t]he party bringing suit to appeal the decision
must file a petition with the appropriate court in: (1) the county where the employee resided at the time of
the injury or death, if the employee is decease.” TEX. LAB. CODE ANN. § 410.252(b)(1).
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and that venue is proper in Travis County because Great Divide provides workers’
compensation insurance coverage in Texas and has a representative in Austin, Texas,
that acts as its agent before the DWC.3
In response to Great Divide’s motion to transfer venue, Fortenberry presented
his affidavit stating, “[a]t the time of my injury, I lived and resided at 950 West
Walnut Hill Lane, Irving, TX 75038 in Dallas County, Texas.” He further noted that
“[a]fter training camp, I moved to 2304 N. Washington, Apt. 405, Dallas, Texas
75204-3798” and resided there since, and pointed to his NFL Player Contract with
the Dallas Cowboys that contained an addendum by which he agreed, with respect
to workers’ compensation claims, “venue is proper in Dallas County, Texas and such
venue shall be exclusive.”
In reply, Great Divide established that 950 West Walnut Hill Lane is an
address for a Marriot Residence Inn and that the law firm of Burns Anderson Jury
and Brenner, LLP, located in Travis County, is Great Divide’s statutorily designated
representative to act as agent to receive notices from the DWC and all
correspondence and filings with the DWC regarding Fortenberry’s workers’
compensation claim were filed by the law firm. In addition, Great Divide, through
the affidavit of a custodian of records of the Dallas Cowboys, established
Fortenberry was in Oxnard, California, on the day he sustained his injury; the Dallas
3
Great Divide is a foreign corporation with its home office in North Dakota.
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Cowboys “provided players, who did not have a permanent residence in Dallas, with
hotel accommodations in August of 2015”; “Fortenberry was among the players who
was provided this accommodation”; and the Dallas Cowboys “paid for []
Fortenberry to stay at a hotel on a temporary basis.” Great Divide further presented
a player information sheet and a 2015 W-2 form that identified Fortenberry’s address
as 71 Joe Bullock Rd., Tylertown, MS.
The trial court denied Great Divide’s motion to transfer venue, and the case
proceeded to a jury trial. The jury found Fortenberry suffered a compensable
disability. The trial court entered a final judgment awarding Fortenberry temporary
income benefits. This appeal followed.
DISCUSSION
In its first issue, Great Divide urges the trial court erred in denying its motion
to transfer venue because venue was not proper in Dallas County and was proper in
Travis County.
I. Burdens and Standard of Review
A plaintiff’s choice of venue stands unless challenged by a proper motion to
transfer venue. In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999). Once
challenged, the plaintiff has the burden to present prima facie proof that venue is
maintainable in the county of suit. In re Masonite Corp., 997 S.W.2d 194, 197 (Tex.
1999); see also TEX. R. CIV. P. 87(2)(a), 3(a). A plaintiff satisfies this burden by
properly pleading the venue facts and supporting them with an affidavit and duly
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proved attachments that fully and specifically set forth the facts supporting such
pleading. TEX. R. CIV. P. 87.3(a). Venue is determined by facts existing at the time
the basis for suit accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 15.006. If the
plaintiff fails to discharge its burden, the right to choose a proper venue passes to the
defendant, who must then prove that venue is proper in the defendant’s chosen
county. TEX. R. CIV. P. 87(3)(a); Ford Motor Co. v. Johnson, 473 S.W.3d 925, 928
(Tex. App.—Dallas 2015, pet. denied).
In an appeal from a trial on the merits, the standard of review we apply to a
trial court’s venue decision is mandated by section 15.064(b) of the Texas Civil
Practice and Remedies Code. TEX. CIV. PRAC. & REM. CODE ANN. § 15.064(b); Ruiz
v. Conoco, Inc., 868 S.W.2d 752, 758 (Tex. 1993). Section 15.064(b) requires that
we consider the entire record, including the trial on the merits, to determine whether
venue was or was not proper in the county of suit. CIV. PRAC. & REM. § 15.064(b).
If there is no probative evidence to show venue was proper in the county of suit, we
must then determine whether there is any probative evidence in the record to show
venue was proper in the county to which transfer was sought. Ruiz, 868 S.W.2d at
758. If there is any probative evidence to show venue was proper in that county, we
remand with instructions to the trial court to transfer to that county. Id. If there is
no probative evidence to show that venue was proper in either the county of suit or
the county to which transfer was sought, we must remand to the trial court to conduct
further proceedings on the issue of venue. Id.; Ken-Do Contracting, L.P. v. F.A.
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Brown’s Construction, L.L.C., No. 05-16-00373-CV, 2017 WL 3381105, at *2, 4
(Tex. App.—Dallas Aug. 7, 2017, pet. denied) (mem. op.).
The Texas Workers’ Compensation Act includes a mandatory venue provision
requiring that a suit for judicial review of an appeals panel decision be filed in the
county where the employee resided at the time of the injury. TEX. LAB. CODE ANN.
§ 410.252(b)(1); Campos v. Tex. Prop. & Cas. Ins. Guar. Ass’n, 282 S.W.3d 226,
230 (Tex. App.—Austin 2009, no pet.); see also CIV. PRAC. & REM. § 15.016 (“An
action governed by any other statute prescribing mandatory venue shall be brought
in the county required by that statute”).
II. Whether There Is Prima Facie Proof Venue Was Proper in Dallas
County
Great Divide argues that Fortenberry’s assertion as to the location of his
residence at the time of his injury is conclusory and thus is not probative evidence
of his residency. Affidavits regarding venue must be made on personal knowledge,
shall set forth specific facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify. TEX. R. CIV. P. 87(3)(a).
Fortenberry’s conclusion that he was a resident of the Residence Inn in Dallas
County does not qualify as prima facie proof because it is unsupported by facts
showing that he maintained that residence in Dallas County on the date of his injury
in California. See TEX. R. CIV. P. 87.3(a) (“Prima facie proof is made when the
venue facts are properly pleaded and an affidavit, and any duly proved attachments
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to the affidavit, are filed fully and specifically setting forth the facts supporting such
pleadings.”); see also A.H. Belo Corp. v. Blanton, 129 S.W.2d 619, 622–23 (Tex.
1939) (holding allegation that plaintiff resided in county where suit was filed at the
time claim accrued was legal conclusion); Republic Bankers Life Ins. Co. v.
McCool, 441 S.W.2d 314, 315–16 (Tex. App.—Tyler 1969, no writ) (concluding
venue affidavit statement that plaintiffs were “residents of Hopkins County” when
cause of action accrued was legal conclusion unsupported by facts); see also Lenoir
v. Marino, 469 S.W.3d 669, 686–87 (Tex. App.—Houston [1st Dist.] 2015) (op. on
reh’g), aff’d, 526 S.W.3d 403 (Tex. 2017). (“[L]ogical conclusions are not
improperly conclusory if they are based on underlying facts stated in the affidavit or
its attachments.”); Weech v. Baptist Health Sys., 392 S.W.3d 821, 826 (Tex. App.—
San Antonio 2012, no pet.) (“A conclusory statement is one that does not provide
the underlying facts to support the conclusion.”).
Moreover, Fortenberry failed to present prima facie proof to satisfy the
residency requirements for venue purposes. Those requirements are (1) a fixed place
of abode within the possession of the party, (2) occupied or intended to be occupied
consistently over a substantial period of time, and (3) which is permanent rather than
temporary. Snyder v. Pitts, 241 S.W.2d 136, 140 (Tex. 1951).4
4
In the Snyder case, the Texas Supreme Court found Snyder was a resident of Dallam County. In doing
so, the court noted Snyder spent five days a week in Dallam County for about two years, he rented a room
at a hotel “for [an unspecified] period” and then moved to a room rented in a private home, and he occupied
a fixed place of abode consistently and with continuity. Snyder, 241 S.W.2d at 141. The supreme court
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Under the first element, the party must have some right of possession and not
be a mere visitor. Id. The plain meaning of possession includes an element of
control or dominion over the property, while access is a broader term that confers
the mere opportunity or ability to enter. See Tex. Ethics Comm’n v. Sullivan, No.
02-15-00103-CV, 2015 WL 6759306, at *7 (Tex. App.—Fort Worth Nov. 5, 2015,
pet. denied) (mem. op.) (citing Access & Possession, BLACK’S LAW DICTIONARY
(10th ed. 2014)); see generally Zanchi v. Lance, 408 S.W.3d 373, 378 (Tex. 2013)
(considering dictionary definitions in interpreting undefined, statutory term). The
right of access does not equate to a right of possession sufficient to raise prima facie
proof of a residence. Tex. Ethics Comm’n v. Sullivan, 2015 WL 6759306, at *7. A
guest in a hotel is a mere licensee, not a tenant. Richardson v. Bigelow Mgmt., Inc.,
No. 05-06-00213-CV, 2007 WL 1139775, at *4 (Tex. App.—Dallas Apr. 18, 2007,
no pet.). Thus, Fortenberry failed to establish he possessed a fixed place of abode at
the Residence Inn at the time of his injury.
In addition, Fortenberry provided no evidence of the frequency and duration
of his stay at the Residence Inn prior to his injury. Thus, Fortenberry failed to
present prima facie evidence establishing a consistent occupancy in Dallas County
over a substantial period of time at the time of his injury. Snyder, 241 S.W.2d at
141 (collecting cases on second element of secondary-residence test and concluding
concluded, “[a] rented room may be a residence.” Id. At 141. It did not conclude the rental of a hotel room
may be a residence.
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evidence that defendant spent five days a week in county for two consecutive years
was consistent occupancy over a substantial period of time); Plains Ins. Co. v.
Acuna, 614 S.W.2d 885, 887–89 (Tex. App.—Eastland 1981, no writ) (finding no
evidence of secondary residence in Maverick County because plaintiff testified he
previously rented a house in Maverick County to “live there for . . . several months”
before leaving to work in other counties while his wife “sometimes” stayed in
Maverick County, lived in Lubbock County at the time his claim accrued, and moved
back to Maverick County after claim accrued).
As to the third element, the question of whether a stay is temporary or
permanent is a question of intent to be proven by declarations, usually to others, and
acts. Snyder, 241 S.W.2d at 141. Fortenberry made no attempt to detail any acts
that would indicate that his stay at the Residence Inn at the time of his injury was
anything other than temporary, nor could he. Rooms at hotels, motels, inns and the
like are temporary or transient housing and are not residences. Warehouse Partners
v. Gardner, 910 S.W.2d 19, 23 (Tex. App.—Dallas 1995, writ denied). Accordingly,
Fortenberry failed to establish he consistently and permanently stayed in Dallas
County at the time of his injury.
We conclude Fortenberry failed to present prima facie proof of a residence in
Dallas County.
Fortenberry asserts even if venue is not mandatory in Dallas County it is
permissive because his NFL Player Contract expresses the parties’ intention that
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Dallas County is the proper county for maintenance of the current case. As an initial
matter, we note that Great Divide is not a party to Fortenberry’s NFL Player
Contract. Fortenberry claims that because the relationship between an employee,
employer, and insurer is contractual and the provisions of the workers’ compensation
statute existing at the time of the issuance of the workers’ compensation policy are
to be considered part of the employee–employer contract, Ankrom v. Dallas
Cowboys Football Club, Ltd., 900 S.W.2d 75, 78 n. 5 (Tex. App.—Dallas 1995, writ
denied), Great Divide is subject to and bound by the venue provision in his contract
with the Dallas Cowboys. Fortenberry’s extension of this Court’s statement in
Ankrom in reverse is unsupported by any legal authority, and we decline to extend
its application here.
Fortenberry further asserts Dallas County was nevertheless a county of proper
venue because Great Divide had a principal office in Irving, Texas. We note that
where there is no county of proper venue under section 410.252(b) of the labor code,
venue is governed by the general venue rule contained in section 15.002(a) of the
Texas Civil Practice and Remedies Code. See Rayas v. Tex. Mut. Ins. Co., No. 03-
11-00310-CV, 2013 WL 150304, at * 4 (Tex. App.—Austin Jan. 11, 2013, no pet.)
(mem. op.). Under that general rule, a lawsuit may be brought “in the county of the
defendant’s principal office of this state, if the defendant is not a natural person.”
CIV. PRAC. & REM. § 15.002(a)(3) (emphasis added). To establish a principal office
in a particular county, there must be prima facie proof that the decision makers for
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the organization within the state conduct the daily affairs of the organization in the
county. Id. § 15.001(a). A mere agent or representative is not a decision maker nor
is a principal office one where only decisions typical of an agency or representative
are made. Mo. Pac., 998 S.W.2d at 217, 220. Accordingly, to establish venue
based on a principal office, Fortenberry must show the employees in the county
where the lawsuit was filed are decision makers for the company and have
substantially equal responsibility and authority relative to other company officials
within the state. Ford Motor, 473 S.W.3d at 928–29. Decision makers who conduct
the daily affairs are different kinds of officials than agents or representatives, and
daily affairs does not mean relatively common, low-level management decisions.
Mo. Pac., 998 S.W.2d at 217.
Fortenberry contends a copy of a letter from a claims examiner at Berkley
Specialty Underwriting Managers to Fortenberry, notifying Fortenberry that Great
Divide disputed his claim and refused to pay benefits establishes Great Divide has a
principal office in Dallas County because failure to provide claims services through
a resident representative with full power to act for the insurance carrier is an
administrative violation, see LAB. §406.010(a),5 and a sub-script on the letter
contains an address in Irving, Texas. This letter, standing alone, does not establish
5
406.010 of the labor code, entitled Claims Service: Administrative Violation, provides, in part, “[a]n
insurance carrier shall provide claims service: (1) through offices of the insurance carrier located in this
state; or (2) by other resident representatives will full power to act for the insurance carrier . . . . A person
commits an administrative violation if the person violates a rule adopted under this section. LAB.
§ 406.010(a)(d).
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Great Divide has a principal office in Dallas County. At best, it may suggest Great
Divide has an agent or representative in Dallas County, which is not sufficient to
establish a principal office. CIV. PRAC. & REM. § 15.001(a).
We conclude Fortenberry failed to prove that mandatory or permissive venue
lies in Dallas County. Thus, there is no probative evidence supporting the trial
court’s legal determination that venue was proper in Dallas County, and no rational
inference could have been made placing venue in Dallas County on the date of
Fortenberry’s injury.
III. Whether There Is Prima Facie Proof Venue Was Proper in Travis
County
Next, we must determine whether there is any probative evidence in the record
to show venue was proper in Travis County, the county to which Great Divide sought
transfer. TEX. R. CIV. P. 87(2)(a); Mo. Pac., 998 S.W.2d at 216. In support of its
assertion that Travis County was a proper venue, Great Divide relies on the affidavit
of one of its attorney stating her law firm, located in Austin, Travis County, serves
as Great Divide’s statutorily required representative to the DWC, see LAB.
§ 406.011,6 and acts as agent for receiving notice from the DWC. She further states
any notice the law firm receives from the DWC is notice to Great Divide and all
6
Section 406.011 of the labor code, entitled Austin Representative; Administrative Violation, provides,
“(a) The commissioner by rule may require an insurance carrier to designate a representative in Austin to
act as the insurance carrier’s agent before the division in Austin. Notice to the designated agent constitutes
notice to the insurance carrier. (b) A person commits an administrative violation if the person violates a
rule adopted under this section.” LAB. § 406.011.
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correspondence and filings with the DWC regarding Fortenberry’s workers’
compensation claim was filed through the law firm in Travis County.
As stated supra, in order to prove the existence of a principal office, a party
must show the employees in the chosen county are decision makers for the company
and have substantially equal responsibility and authority relative to other company
officials within the state. Ford Motor, 473 S.W.3d at 928–29. At best, Great
Divide’s evidence establishes the law firm is its agent for notice and filing with
respect to the DWC and functions similarly to a registered agent for service of
process. It does not attempt to show the principal decision makers of the company
are located there or to establish their role for the company is qualitatively different
from that of any other agents, including, for example, its agent in Dallas. See e.g.,
id. at 931 (concluding registered office is nothing more than location entity has
designated where it can be served with legal process and does not show principal
decision makers of entity conducted its daily affairs from that location). We
conclude there is no evidence in the record to show Great Divide has a principal
office in Travis County.
CONCLUSION
Because Fortenberry offered no prima facie proof that he resided in Dallas
County for venue purposes on the date of his injury or that Great Divide has a
principal office in Dallas County and because Great Divide failed to present prima
facie proof it maintains a principal office in Travis County, neither party made the
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necessary venue showing. Accordingly, we reverse the trial court’s judgment and
remand to the trial court to conduct further proceedings on the issue of venue.7 See
Ruiz, 868 S.W.2d at 758. We instruct the trial court to direct the parties to make
further proof. TEX. R. CIV. P. 87(3)(d). Because this is a threshold determination,
we need not address Great Divide’s remaining issues. TEX. R. APP. P. 47.1.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
191541F.P05
7
Our conclusion that venue is not proper in Dallas County and the law of the case doctrine applies to
exclude Dallas County as a proper venue in any subsequent proceeding. See Ken-Do Contracting, L.P. v.
F.A. Brown’s Constr., LLC, No. 05-19-00228-CV, 2020 WL 1060699, at *3 n.1 (Tex. App.—Dallas Mar.
5, 2020, pet. denied). As the supreme court has explained, “[b]y narrowing the issues in successive appeals,
the law-of-the-case doctrine further seeks to promote efficiency and uniformity in the decision-making
process. Requiring a party to reargue issues previously lost in the court of appeals as a predicate to this
Court’s review would obviously work at cross-purposes to the doctrine.” See Paradigm Oil, Inc. v. Retamco
Operating, Inc., 372 S.W.3d 177, 182 (Tex. 2012) (under law-of-the case doctrine, decision rendered in
former appeal of case generally binding in later appeal of same case).
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
GREAT DIVIDE INSURANCE On Appeal from the 134th Judicial
COMPANY, Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-18-06953.
No. 05-19-01541-CV V. Opinion delivered by Justice
Schenck. Justices Reichek and
ALCUS RESHOD Carlyle participating.
FORTENBERRY, Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court to conduct
further proceedings on the issue of venue.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 26th day of July 2021.
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