Haddix v. American Zurich Ins. Co.

• Decision Date: 03 April 2008
• Docket Number: No. 11-06-00107-CV.,11-06-00107-CV.
• Citation: 253 S.W.3d 339
• Parties: Robert HADDIX Jr., Appellant v. AMERICAN ZURICH INSURANCE COMPANY; Chesterfield Services, Inc.; The Salvation Army; and Flahive, Ogden and Latson, P.C., Appellees.
• Court: Texas Court of Appeals

253 S.W.3d 339

Robert HADDIX Jr., Appellant v. AMERICAN ZURICH INSURANCE COMPANY; Chesterfield Services, Inc.; The Salvation Army; and Flahive, Ogden and Latson, P.C., Appellees.

No. 11-06-00107-CV.

Court of Appeals of Texas, Eastland.

April 3, 2008.

Robert Haddix Jr., Lufkin, TX, pro se.

Robert D. Stokes, Flahive, Ogden & Latson, Austin, Warren T. McCollum, Fenley & Bate, L.L.P., Lufkin, TX, for appellee.

Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.

OPINION

RICK STRANGE, Justice.

Robert Haddix Jr. filed suit against American Zurich Insurance Company; Chesterfield Services, Inc.; the Salvation Army; and Flahive, Ogden and Latson, P.C. (Flahive), for injuries he claimed in connection with two on-the-job injuries and his subsequent claims for workers' compensation benefits. The trial court granted appellees' pleas to the jurisdiction and dismissed Haddix's suit. We affirm in part and reverse and remand in part.

I. Background Facts

Haddix contended that, while in the course and scope of his employment with the Salvation Army, he was injured on November 25, 2004, and that he aggravated his injury on December 16, 2004. Haddix filed workers' compensation claims for both injuries. The Texas Department of Insurance, Division of Workers' Compensation¹ held a contested case hearing on Haddix's December 16 claim and determined that he did not suffer a compensable injury. The appeals panel affirmed. The Division conducted a contested case hearing on Haddix's November 25 claim but had not issued a decision when Haddix filed suit. In response to Haddix's suit, the appellees filed pleas to the jurisdiction arguing that Haddix had failed to exhaust his administrative remedies. The trial court conducted a hearing and subsequently granted the pleas and dismissed the litigation.

II. Analysis

A. Was Haddix Improperly Denied a Default Judgment?

Haddix argues that the trial court erred by failing to impose a default judgment on the defendants. Haddix filed his lawsuit on August 29, 2005. Citations were issued and were mailed by certified mail on September 1. Haddix filed a motion for default judgment on September 20, 2005. Haddix assumes that the appellees' deadline for filing an answer began running when the citations were mailed. This is incorrect. Appellees were not served until they received the citation. See Milam v. Miller, 891 S.W.2d 1 (Tex. App.-Amarillo 1994, writ ref'd) (defendant was served by certified mail when he received plaintiff's petition and signed the certified mail receipt).

The officer's returns reveal that Zurich was served on September 23, Chesterfield and Flahive were served on September 26, and the Salvation Army was served on September 28. The Salvation Army's answer was due on October 24. The remaining answers were due October 17. Each party filed an answer on October 7. Because appellees were not in default, the trial court did not err, and Haddix's second issue is overruled.²

B. Did the Trial Court Err by not Making Findings of Fact and Conclusions of Law?

Haddix contends that the trial court committed misconduct by refusing to file findings of fact and conclusions of law after it granted appellees' pleas to the jurisdiction. A party is entitled to findings of fact and conclusions of law after a conventional trial on the merits before the court. IKB Indus. v. Pro-Line Corp., 938 S.W.2d 440, 442 (Tex.1997). A case is "tried" when a court holds an evidentiary hearing. Gen. Elec. Capital Corp. v. ICO, Inc., 230 S.W.3d 702, 711 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). In other cases, unless they serve no purpose such as when summary judgment is granted, findings of fact and conclusions of law are proper; however, a party cannot compel their preparation. Pro-Line Corp., 938 S.W.2d at 442-43.³

Courts have held that findings of fact are not required every time a plea to the jurisdiction is granted. In Ford v. City of Lubbock, 76 S.W.3d 795 (Tex.App.-Amarillo 2002, no pet.), the claimants sued the City of Lubbock for the drowning death of their child. The City filed a plea to the jurisdiction, and the trial court held a hearing. No witnesses testified, but the parties attached affidavits and deposition testimony to their pleadings. The trial court granted the City's plea. While the family requested findings of fact and conclusions of law, none were prepared. The Amarillo Court was required to determine if findings were appropriate because of a claim by the City that the family had not timely perfected its appeal. The Amarillo Court reviewed the trial court's comments at the hearing and concluded that it had accepted the family's statements as true. Consequently, there was no disputed fact issue for resolution, and findings of fact would have served no useful purpose. 76 S.W.3d at 797-98.

We believe that the same situation holds true here. Each appellee asserted a plea to the jurisdiction. The pleas were initially unsupported by evidence, but Flahive subsequently filed a brief that included an affidavit from one of its attorneys. Haddix filed responses to the pleas and an appendix of evidence. When the trial court held a hearing on the pleas, no witnesses testified and no evidence was formally received by the trial court. However, both sides referred to a letter from the Texas Workforce Commission (TWC) to Haddix that was included in his appendix of evidence. The parties reach different conclusions regarding the evidence, but the evidence itself is undisputed. The trial court, therefore, was not required to prepare findings of fact. We will assume that the trial court accepted the evidence that Haddix included in his appendix as true and will afford the factual statements in Haddix's petition the deference required by law. See Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 449 (Tex.1996) (absent an allegation of fraudulent pleadings, the trial court must take the plaintiff's allegations as true and must construe them liberally in the plaintiff's favor when ruling on a plea to the jurisdiction).

Haddix also argues that he was harmed by the trial court's failure to prepare conclusions of law because appellees' pleas consisted of numerous subsections and because he does not know the basis of the trial court's ruling. The trial court's rulings on questions of law are reviewed de novo. State v. Heal, 917 S.W.2d 6, 9 (Tex.1996). This requires that we exercise our own judgment and redetermine each issue. Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex.1998). Moreover, Haddix is required to attack all independent bases or grounds that fully support a complained-of ruling or judgment. Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681 (Tex.App.-Houston [1st Dist.] 2002, no pet.). Consequently, the preparation of conclusions of law would not have altered Haddix's appeal or our analysis. Haddix's third issue is overruled.

C. Did the Trial Court Err by not Providing Haddix an Opportunity to Amend His Petition?

Haddix next argues that the trial court erred because it signed an order of dismissal rather than provide him with an opportunity to amend his petition. Texas Courts have signaled a preference for allowing a plaintiff an opportunity to amend before dismissing a suit in response to a plea to the jurisdiction. The general rule is that, if the plaintiff's pleadings do not demonstrate incurable defects, the plaintiff should be given an opportunity to amend. See Sepulveda v. County of El Paso, 170 S.W.3d 605, 616-17 (Tex.App.-El Paso 2005, pet. denied). If, however, the pleadings affirmatively negate the existence of jurisdiction, dismissal is appropriate. See Harris County v. Sykes, 136 S.W.3d 635, 639 (Tex.2004).

While the general rule expresses a preference for allowing an amendment, a plaintiff can waive this opportunity through inaction. See, e.g., Kassen v. Hatley, 887 S.W.2d 4, 13-14 n. 10 (Tex.1994) (plaintiffs waived complaint to dismissal by summary judgment aimed solely at their pleadings when they did not request an opportunity to amend their petition); see also Dahl ex rel. Dahl v. State, 92 S.W.3d 856, 862 n. 6 (Tex.App.-Houston [14th Dist.] 2002, no pet.) (noting that plaintiffs arguably waived complaint that the trial court failed to provide them with an opportunity to amend their pleadings when they did not seek leave to amend).

Haddix made no effort to amend his petition prior to the hearing. The only prehearing reference to an amended pleading was in Haddix's response to the Salvation Army's plea. The Salvation Army contended that Haddix had not exhausted his administrative remedies for bringing a Payday Law cause of action by not filing a claim with the Department of Labor.⁴ Haddix disputed this and then stated: "Plaintiff is glad that Defendant brought this point up. In his Original Petition, Plaintiff did not request damages for this cause of action. Plaintiff now requests leave from the Court to file a supplement to his petition to address this point and other unintentional glitches in his Original Petition." Despite this statement, Haddix did not file an amended or supplemental pleading prior to the hearing.

Haddix made no effort to amend his petition during or after the hearing. The hearing occurred on November 8. The trial court took the pleas under advisement. The trial court notified the parties by correspondence dated December 15 that it was granting defendants' pleas and requested a proposed order. The trial court signed an order on December 22. Haddix objected to this order contending that the trial court erred by not giving him a chance to amend but he did not amend or request leave to amend his pleadings. Haddix filed a motion for new trial and again objected to the failure to grant him an opportunity to amend, but he did not request leave to amend or indicate how he could address his pleading deficiencies with an amended pleading.

Even if we assume that the better practice would have been served by specifically...