National Liability and Fire Ins. Co. v. Allen

• Decision Date: 13 August 1998
• Docket Number: No. 09-97-019,09-97-019
• Citation: 972 S.W.2d 215
• Parties: NATIONAL LIABILITY AND FIRE INSURANCE COMPANY, Appellant, v. Donald ALLEN, Appellee. CV.
• Court: Texas Court of Appeals

Page 215

972 S.W.2d 215

NATIONAL LIABILITY AND FIRE INSURANCE COMPANY, Appellant, v. Donald ALLEN, Appellee.

No. 09-97-019 CV.

Court of Appeals of Texas,

Beaumont.

Submitted April 30, 1998.

Decided Aug. 13, 1998.

Robert T. Cain, Jr., Zeleskey, Cornelius, Hallmark, Roper & Hicks, Lufkin, Harry Deckard, Assistant Attorney General, Austin, for appellant.

George E. Chandler, Law Offices of George Chandler, Wesley Hoyt, Bates & Hoyt, Darrin Walker, Law Offices of George Chandler, Lufkin, for appellee.

Before WALKER, C.J., and BURGESS and STOVER, JJ.

OPINION

STOVER, Justice.

National Liability and Fire Insurance Company ("National Liability") and the Texas Workers' Compensation Commission ("Commission") as intervenor ¹ appeal a district court judgment rendered in favor of Donald Allen. The Commission denied workers' compensation benefits to Allen based on a finding that Allen had not timely notified his employer of his injury. Allen appealed that decision to the district court. The jury found Allen had timely notified his employer of his injury and the court entered a judgment vacating the Commission's decision. Bringing two points of error, National Liability appeals the district court judgment asserting the following: (1) Allen failed to present evidence of timely notice to the Commission of his appeal to district court and, as a result, jurisdiction was lacking; and (2) the trial court erred in excluding testimony from an earlier Commission hearing. The Commission joins with National Liability on the first point of error.

JURISDICTION

The resolution of National Liability's first point of error depends on our interpretation of § 410.253 of the Texas Labor Code. Section 410.252(a) provides that a party seeking judicial review of a Commission decision must file suit "not later than the 40th day after the date on which the decision of the appeals panel was filed with the division." TEX. LAB. CODE ANN. § 410.252 (Vernon 1996). In addition, § 410.253 requires a copy of the petition to "be simultaneously filed with the court and the commission and served on any opposing party." TEX. LAB. CODE ANN. § 410.253 (Vernon 1996).

Following a rendition of the verdict in favor of Allen, National Liability brought forward a motion for judgment not withstanding the verdict. In the motion, National Liability alleged the trial court did not have jurisdiction to enter a final judgment in the case because Allen had failed to comply with the notice provision of § 410.253. This contention was originally brought forward by National Liability in its Supplemental Answer wherein National Liability denied under oath that jurisdiction was proper. In its motion for JNOV, National Liability argued pursuant to Rule 93 of the Texas Rules of Civil Procedure, that when jurisdictional matters are denied under oath, the plaintiff is required to prove the requisite elements. National Liability further stated that Allen had failed to come forward with proof of the simultaneous filing requirement and, therefore, jurisdiction was lacking.

Allen responded to the motion for JNOV with the following arguments: (1) § 410.253 is not jurisdictional, (2) § 410.253 was complied with because plaintiff complied with the "simultaneous" filing requirement, (3) defendant waived this affirmative defense by failing to raise this challenge in an appropriate plea to the jurisdiction, and (4) defendant did not file a proper verified denial. The trial court subsequently denied the motion for JNOV.

On appeal, National Liability now argues the denial of the motion was error. In its first point of error, National Liability states: "The trial court erred in overruling National Liability's motion for judgment NOV because Allen failed to present evidence that he timely sent the Commission notice of his appeal to District Court, after National Liability denied under oath that he had given such notice." The Commission, as intervenor, also argues that subject matter jurisdiction was lacking due to Allen's alleged untimely notice to the Commission.

Allen argues § 410.253 is not jurisdictional, but instead is merely directory. Alternatively, Allen argues there was proper proof of jurisdiction in the trial court because he sent a copy of the petition to the Commission on the same day he filed suit in district court.

Judicial Notice

Allen argues the judgment of the trial court should be affirmed because there was proof of jurisdiction in the trial court. He requests this court to take judicial notice of the petition received by the Commission which is stamped with the date of receipt by the Commission. This information is important for our judicial determination of the date of notice to the Commission. We initially note that the copy of the petition date-stamped by the Commission is not part of the appellate record. The Commission filed a motion with this Court to take Judicial Notice of the date-stamped petition, thereby requesting permission to amend the appellate record. That motion was denied. We now determine, however, that the denial of the motion was error.

"A court of appeals has the power to take judicial notice for the first time on appeal." Office of Pub. Util. Counsel v. Pub. Util. Comm'n of Texas, 878 S.W.2d 598, 600 (Tex.1994). To be the proper subject of judicial notice, a fact must be one which is "not subject to reasonable dispute" because it is either "generally known within the territorial jurisdiction of the trial court" or "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." TEX.R. EVID. 201(b). Additionally, judicial notice is mandatory if "requested by a party and [the court is] supplied with the necessary information." TEX.R. EVID. 201(d).

The authenticity of the date-stamped petition is capable of accurate and ready determination by resort to the Commission records. The date-stamped petition was in existence at the time of trial and could have been judicially noticed by the trial court. Additionally, pursuant to TEX.R. EVID. 201(d), this court's judicial notice of the petition, per request by the Commission, was mandatory. See Office of Pub. Util. Counsel, 878 S.W.2d at 600 (court of appeals erred by refusing to take judicial notice of published order of the Public Utility Commission). As a result, this court's previous denial of the Commission's motion was error and we now take judicial notice of the date-stamped petition.

Is The Notice Provision of § 410.253

Jurisdictional?

National Liability argues that both steps of filing the petition with the district clerk and with the Commission are jurisdictional. The Commission contended in oral argument that the notice provision of § 410.253 is instrumental in the Commission's ability to enforce the statute. The ability to intervene in a "new law" workers' compensation lawsuit, the Commission urges, "provides a means of ensuring that the system operates in accordance with [the] legislature's intent once a dispute reaches the litigation stage." In response, Allen strenuously argues the § 410.253 notice requirement is directory only. He bases this argument on the fact that the forty-day deadline is contained in § 410.252, but not within § 410.253.

The debate over the interpretation of § 410.253 has resulted in a line of appellate cases with varied results. The Austin Court of Appeals has applied the most stringent analysis to the service requirements of § 410.253. In Benavidez v. Travelers Indem. Co. of Conn., 960 S.W.2d 422 (Tex.App.-Austin 1998, writ filed), the Austin court of appeals pronounced its reasoning for applying a strict construction to the filing requirements:

There is no common law right to judicial review of an administrative decision. Southwest Airlines Co. v. Texas High-Speed Rail Auth., 867 S.W.2d 154, 157 (Tex.App.-Austin 1993, writ denied). If a cause of action and the remedy for its enforcement are based on a statute, the statutory provisions are mandatory and exclusive. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084, 1087 (1926); Dolenz v. Texas State Bd. of Medical Examiners, 899 S.W.2d 809 (Tex.App.-Austin 1995, no writ). Each statutory requirement in such an appeal is jurisdictional. Id.

Id. at 423. The court concluded that both filing requirements under §§ 410.252 and 410.253 are jurisdictional, mandatory, and must be performed within the forty-day period:

We conclude that section 410.253's requirement that the petition be simultaneously filed with the court and the commission is subject to 410.252's requirement that the petition be filed within forty days. We hold that a copy of the petition must be filed with the Commission within forty days of the date the appeals panel filed its decision with the division. We further conclude that this requirement is jurisdictional.

Id. at 424; See also Continental Cas. Ins. Co. v. Functional Restoration Assoc., 964 S.W.2d 776, 782 (Tex.App.-Austin 1998, writ filed) (the simultaneity requirement in § 410.253 means "that petitions filed with the court and Commission must both be filed before the deadline for filing, but not necessarily on the same day.")

The San Antonio Court of Appeals likewise construes § 410.253 strictly. In Planet Ins. Co. v. Serrano, 936 S.W.2d 35, 37 (Tex.App.-San Antonio 1996, no writ), the court held that while the requirement for filing with the Commission within forty days is mandatory and jurisdictional, the "simultaneous" language of § 410.253 is directory. See also Pacific Employers Ins. Co. v. Reynolds, 961 S.W.2d 516, 518 (Tex.App.-San Antonio 1997, no writ) (failure to serve copy of petition with the Commission resulted in lack of jurisdiction).

Finally, the Texarkana Court of Appeals has taken a more lenient stance and has disagreed with other courts that have found the requirement of filing a copy of the petition with the Commission as mandatory and jurisdictional. See Sinclair v. Albertson's, Inc., 975 S.W.2d 662, ---- (Tex.App.-Texa...