Mohammed Fawwaz Shoukfeh, M.D., P.A., D/B/A Texas Cardiac Center v. James G. Grattan and Texas Workforce Commission

ACCEPTED
07-15-00113-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
6/22/2015 9:45:58 AM
Vivian Long, Clerk
Cause 07-15-00113-CV
In the
FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
~ebentb 1!)istritt (![ourt of ~ppeaIs 6/22/2015 9:45:58 AM
VIVIAN LONG
Amarillo, Texas CLERK
Mohammed Fawwaz Shoukfeh, M.D., PA; d/b/a Texas Cardiac Center,
Appellant,
v.
James G. Grattan and Texas Workforce Commission,
Appellees
From Cause 2014-510,479
In the 99th District Court, Lubbock County, Texas
The Honorable William Sowder, Judge Presiding
BRIEF OF APPELLEE JAMES G. GRATTAN
ORAL ARGUMENT REQUESTED
SPLAWN SIMPSON PITTS
907 Texas Avenue (79401)
P.o. Box 1376
Lubbock, TX 79408-1376
Telephone: (806) 765-8048
Facsimile: (806) 765-5308
John Simpson SBN 18411500
John@ssplubbocklaw.com
Attorneys for Appellee James G. Grattan
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES iii
STATEMENT OF THE CASE 1
STATEMENT CONCERNING ORAL ARGillvfENT 2
ISSUES PRESENTED 2
STATEMENT OF FACTS 2
SUMMARY OF THE ARGUMENT 4
ARGUMENT 5
PRAYER 12
CERTIFICATE OF SERVICE 13
CERTIFICATE OF COMPLIANCE 13
11
TABLE OF AUTHORITIES
Statutes and Codes:
Tex. Lab. Code Ann. § 212.202 (2014); 6
Cases:
Edwards v. TexasEmployment Comm 'n, 936 S.W.2d 462,465
(Tex. App.-Fort Worth 1996, no writ) 6
Fire Department of City of Fort Worth v. City of Fort Worth,
217 S.W.2d 664,665 (Tex. 1949) 6, 12
Fireman's and Policemen's Civil Service Comm'n v. Brinkmeyer,
672 S.W.2d 953, 956 (Tex. 1984) 6, 9
Levelland I.S.D. v Contreras, 865 S.W.2d 474, 476
(Tex. App.-Amarillo 1993, writ denied) 7, 8, 9
Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986); 6
Olivarez v. Aluminum Corp. 0/ America, 693 S.W.2d 931, 932 (Tex. 1985) 6
Texas Employment Comm 'n v. Hodges, 732 S.W.2d 427,428
(Tex. App.-Dallas 1987, no writ) 7
Texas Employment Comm 'n v. Ryan, 481 S.W.2d 172, 175
(Tex. Civ. App.-Texarkana 1972, no writ) 7
III
TO THE HONORABLE COURT OF APPEALS:
This appeal arose from the granting of a summary judgment for James G.
Grattan and the Texas Workforce Commission and the denial of a motion for
summary judgment for Mohammed Fawwaz Shoukfeh, M.D., P.A. d/b/a Texas
Cardiac Center. The primary issue is a contested wage claim or Pay Day claim of
James G. Grattan, employee, against his employer, Mohammed Fawwaz
Shoukfeh, M.D., P.A. d/b/a Texas Cardiac Center, which was submitted to and
decided by the Texas Workforce Commission pursuant to Chapter 61, Texas Labor
Code.
The Commission rendered its decision in favor of Grattan and Shoukfeh
appealed to the District Court of Lubbock County, Texas. Competing summary
judgments were filed in the proceeding in the 99th District Court.
James G. Grattan asks the Court of Appeals to affirm the decision of the trial
court because there is substantial evidence in the TWC record to support the
decision of the Commission and the decision of the Commission is not arbitrary or
caprIcIous.
STATEMENT OF THE CASE
Nature of the Case. James G. Grattan brought a wage claim against his
employer under the authority of Chapter 61, Texas Labor Code. A telephonic
hearing was held. The administrative law judge rendered her decision and it was
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published to all parties. Both sides, Grattan and Shoukfeh, appealed that decision
to the full Commission.
The Commission rendered a final decision on February 6, 2014. Shoukfeh
appealed the decision in accordance with the Texas Labor Code by filing suit in the
99th District Court of Lubbock County, Texas. The appeal is a substantial evidence
appeal. All parties filed motions for summaryjudgment.
The Underlying Disposition. The trial court granted Grattan's and the
Texas Workforce Commission's motions and denied Shoukfeh's motion finding
that there was substantial evidence to support the decision of the Commission.
STATEMENT CONCERNING ORAL ARGUMENT
Grattan requests oral argument under the authority of Texas Rule of
Appellate Procedure 39.1.
ISSUES PRESENTED
Whether the trial court correctly granted the motions for summary
judgments of Grattan and the Commission and denied the motion for summary
judgment of Shoukfeh because there was substantial evidence in the TWC record
to support the decision of the Commission in favor of Grattan.
STATEMENT OF FACTS
Chapter 61, Texas Labor Code provides a claims procedure and adjudication
system for wage disputes between employees and employers. James Grattan was
2
an employee of Mohammed Fawwaz Shoukfeh, M.D., P.A. d/b/a Texas Cardiac
Center from 2006 until 2013. Upon his departure a dispute arose over the amount
of compensation due to him as an employee. Grattan filed a claim under Chapter
61, Texas Labor Code, Texas Pay Day Statute. Shoukfeh disputed the claim or
claims of Grattan. The issues were highly contested.
A telephonic hearing was held and the administrative law judge rendered a
decision partially favorable to Grattan. Both Grattan and Shoukfeh appealed the
administrative law judge's decision. The full Commission considered the appeals
and rendered a final decision favorable to Grattan. Pursuant to Chapter 61, Texas
Labor Code, Shoukfeh appealed to the district court of Lubbock County, Texas.
All parties, including the Texas Workforce Commission, filed motions for
summary judgment.
The trial court reviewed the motions, the TWC Record, the evidence and the
argument of counsel. The trial court rendered its judgment in favor of Grattan
finding that there was substantial evidence to support the decision of the
Commission and that the decision was not arbitrary and capricious.
Shoukfeh appeals to this Court urging that the decision of the Commission is
not supported by substantial evidence.
3
SUMMARY OF THE ARGUMENT
Grattan would show that the issues herein have been highly contested from
the fling of the original TWC claim. Both sides presented many documents to
support their respective positions. Both sides were so confident in their positions
that each appealed the decision of the administrative law judge.
The sole issue before the trial court was whether there was substantial
evidence to support the decision of the Commission. The record of the
Commission and other affidavit evidence was presented to the trial court. The
judgment holds that the trial court found there to be substantial evidence to support
the decision of the Commission. Grattan would show that the trial court was
correct because there is substantial and significant evidence to support the decision
of the Commission.
Grattan asks the Court of Appeals to affirm the judgment of the trial court.
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ARGUMENT
Grattan would show that this cause is brought by the Plaintiff ("Shoukfeh")
as an appeal from a decision of the Texas Workforce Commission, Chapter 61,
Texas Labor Code. The cause was filed on February 28, 2014. The Texas
Workforce Commission and Grattan answered therein. This is a substantial
evidence appeal and the Trial Court was confined to the "Record" before the
Commission in its analysis of this case. CR: 73-250
Grattan was an employee of Mohammed Fawwaz Shoukfeh, MD, PA, for
several years, ending his employment on or about April 30, 2013. Grattan filed a
Wage Claim with the TWC on or about May 21, 2014. A preliminary
determination was made by the TWC awarding benefits to Grattan. An appeal of
this preliminary decision was taken by both parties. A telephonic heating was held
before Hearing Officer S. Dennis. The hearing officer issued her decision on
October 7, 2013. Grattan timely appealed the hearing officer's decision pursuant to
Chapter 61, Texas Labor Code, on or about October 21, 2013.
On or about February 6, 2104, the Texas Workforce Commission rendered
its final decision awarding Grattan $125,988.91, finding that "The claimant's
original calculation of what he is owed is reasonable and supported by the weight
of the evidence." [TWC Record, TWC 000005/Grattan 00003] CR: 23-24, CR:
351-353
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Standard of Review
Texas law dictates that courts review TWC unemployment benefit
determinations under the substantial evidence trial de novo standard. Tex. Lab.
Code Ann. § 212.202 (2014); Mercer v, Ross, 701 S.W.2d 830, 831 (Tex. 1986);
Edwards v. Texas Employment Comm 'n, 936 S.W.2d 462, 465 (Tex. App.-Fort
Worth 1996, no writ). In conducting this limited review, the court only determines
whether the Commission's decision is reasonably supported by more than a mere
scintilla of evidence. See Olivarez v. Aluminum Corp. of America, 693 S.W.2d 931,
932 (Tex. 1985) ("Although substantial evidence must be more than a mere
scintilla, it need not be a preponderance. In fact, the evidence may be substantial
and yet greatly preponderate the other way."). Further, the substantial evidence
inquiry presents only a question of law to the court. Fireman's and Policemen's
Civil Service Comm'n v. Brinkmeyer, 672 S.W.2d 953, 956 (Tex. 1984). The Texas
Supreme Court described the standard as follows:
Although the statute [a civil service act] provides for a trial de novo,
this term as applied to reviews of administrative orders has come to
have a well-defined significance in the decisions of this state, and as a
rule has been taken to mean a trial to determine only the issues of
whether the agency's ruling is free of the taint of any illegality and is
reasonably supported by substantial evidence.
Fire Department of City of Fort Worth v. City of Fort Worth, 217 S.W.2d 664, 665
(Tex. 1949).
6
Because no issues of fact exist, the trial court may not substitute its
judgment for that ofTWC on disputed issues of fact and must defer to TWC's fact-
finding authority. Brinkmeyer, 662 S.W.2d 953 at 956. Evidence at trial may be
conflicting and even preponderate against an employer, employee, or TWC, and
yet still amount to substantial evidence. Olivarez, 693 S.W.2d at 932.
The trial de novo aspect of the standard only means that evidence must be
independently admitted, as in any other civil case. Therefore, the Texas Rules of
Evidence and the Texas Rules of Civil Procedure govern what evidence is
admissible at trial or on summary judgment. Levelland LSD. v Contreras, 865
S.W.2d 474, 476 (Tex. App.-Amarillo 1993, writ denied). However, once a party
establishes a proper evidentiary predicate, then the Court simply determines if
substantial evidence is present. Edwards, 936 S.W.2d at 465-67.
The Texas Supreme Court has held that substantial evidence exists if more
than a mere scintilla of evidence supports the agency's decision. Olivarez, 693
S.W.2d at 932. Further, Texas courts note that, unlike preponderance cases, no
weighing of the evidence occurs:
No weighing of facts may be made by the courts, and as a result, the
preponderance of the evidence is immaterial, as the courts cannot
substitute their discretion for that of the Commission.
Texas Employment Comm 'n v. Ryan, 481 S.W.2d 172, 175 (Tex. Civ. App.-
Texarkana 1972, no writ); see also Texas Employment Comm 'n v. Hodges, 732
7
S.W.2d 427, 428 (Tex. App.-Dallas 1987, no writ). ("Neither the trial court nor
the appellate court is permitted to determine whether the Commission's decision is
right or wrong, or to substitute its judgment for the Commission's.")
Because it is acting under delegated authority, TWC's decision is presumed
to be correct. Mercer, 701 S.W.2d 830 at 831. Plaintiff bears the entire burden of
showing TWC's decision was unreasonable and was made without regard to the
law or the facts. Id; Levelland I.S.D. v Contreras, 865 S.W.2d 474. 477 (Tex.
App.-Amarillo 1993. writ denied.)
There is abundant evidence in the TWC record to support the decision of the
Commission. This matter was highly contested from the beginning of the
proceeding. Prior to the preliminary decision, both parties submitted several pages
of documentation in support of their respective positions. It is important to note
that both parties appealed the preliminary decision. [TWC 000097/Grattan 00095]
CR: 97
Numerous exhibits and documents were submitted to the Commission prior
to the Pay Day Hearing on October 1, 2014. Following the hearing both sides
submitted competing documentation of their respective positions. The hearing
officer awarded Grattan "$5,817.32." Both parties appealed.
Reduced to the lowest common denominator, the critical dispute between
Shoukfeh and Grattan was whether the "overhead calculation" should be
8
determined by dividing the total overhead by four doctors or by three. Shoukfeh
argued that the overhead should be divided by three doctors while Grattan argued
that the overhead should be divided by four.
Dr. Shoukfeh propounded the theory that a fourth doctor should not be
considered in dividing the overhead as between the doctors even though a fourth
doctor was practicing with the group. The TWC record contains the spreadsheet
calculations Dr. Grattan used in arriving at his "amount due" figure considering a
fourth doctor in the overhead calculation. [TWC 000163-173; James Grattan
00161-00171] CR: 235-243 Clearly this is evidence that supported Grattan's
theory of the calculation. Plus, the TWC record discloses the documents and
evidence of a prior course of dealings between the patties whereby each doctor's
share of overhead was calculated on a pro rata basis over several years of practice,
using all of the doctors in the practice group. [TWC 000012-000016; James
Grattan 00010-00014] CR: 84-88 This was still more evidence that supported
Dr. Grattan's position and represented substantial evidence that supported the
Commission's final luling and final award. The Commission made its decision
based upon the evidence before it and there is substantial and material evidence to
support that decision in the TWC record.
The proposition now before the Court is a matter of law only. Fireman's and
Policemen's Civil Service Comm'n v. Brinkmeyer, 672 S.W.2d 953, 956 (Tex.
9
1984). Shoukfeh bears the entire burden of showing TWC's decision was
unreasonable and was made without regard of the law or the facts. Levelland 1.S.D.
v Contreras, 865 S.W.2d 474,477 (Tex. App.-Amarillo 1993, writ denied.) Since
the Court's review is confined to the TWC's record, Grattan urges the Court to
review the record and confirm that there is adequate and substantial evidence to
support the ultimate and final award of the Commission. Upon review, it is clear
that Shoukfeh cannot meet the heavy burden of proof as required by the Contreras
case before the trial court or this Court.
At page 11 of Appellant's Brief the issue is clearly defined - whether the
overhead was to be divided by three physicians or four physicians. Appellant says,
"Although the practice had typically employed four physicians, during times of
transition, three physicians divided the overhead expenses." Brief of the Appellant,
Page 11
This describes the CIUX of the dispute. Grattan and the others never agreed to
divide the overhead by three instead of four physicians. The decision to do so was
made solely by Dr. Shoukfeh without consulting any other physician.
Dr. Quaddour was seeing patients and was billing for his services; he was getting
paid by the group; and was utilizing the equipment and staff of the group. It makes
perfect sense that the doctors would expect to divide the overhead by the number
of physicians in the group.
10
This factual dispute was clearly before the Commission. Dr. Shoukfeh made
his case. Dr. Grattan made his case for his interpretation. The Commission decided
the case in favor of Grattan's interpretation.
The TWC decision herein is clear, calculated, reasoned, based upon the law
of the case, the facts of the case, and is not unreasonable. The TWC calculated its
award by using a base net receipt figure and subtracting from that number the
amounts paid to Grattan. Therefore, the award of the Commission is not arbitrary
or capricious.
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PRAYER
Wherefore, James G. Grattan prays that upon consideration of the TWC
record in accordance with Chapter 61, Texas Labor Code, as well as, the pleadings
in this case, the Court of Appeals affirm the judgment of the trial court which
affirmed the decision of the Texas Workforce Commission, dismiss the appeal of
Shoukfeh and enter a judgment in favor of Grattan.
Respectfully submitted,
SPLAWN SIMPSON PITTS
907 Texas Avenue (79401)
P.O. Box 1376
Lubbock, TX 794081-1376
(806) 765-8048
(806) 765-5308 fax
attorney@ssplubbocklaw.com
By: /s/ John Simpson
John Simpson SBN: 18411500
Attorney for Appellee James G. Grattan
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CERTIFICATE OF SERVICE
On June 22, 2015, the undersigned certified that he electronically served a
copy of this brief on the attorneys of record of the parties:
Grady Terrill
Gary Bellaire
CRAIG, TERRll..L, HALE & GRANTHAM, L.L.P.
9816 Slide Road, Suite 201
Lubbock, TX 79424
Peter Laurie
ASSISTANTATTORNEYGENERAL
P.O. Box 12548
Austin, TX 78711-2548
lsI John Simpson
John Simpson
CERTIFICATE OF COMPLIANCE
The undersigned certifies that this brief complies with the typeface and
length provisions of TEX. R. ApP. P. 9.4 because (1) I prepared this computer-
generated document in a proportionally-spaced typeface using the 14-point Times
New Roman font of Microsoft Word 2010; and (2) I relied on the word-count
feature of the computer program used to determine the brief contains 2,453 words,
exclusive of the parts exempted by TEX.R. APP. P. 9(i)(2)(B).
lsI John Simpson
SPLAWNSIMPSONPITTS
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