Gonzales v. Services Lloyds Ins. Co. (Tex.App.- Houston [14th Dist] May 28, 2009)(Sullivan)
(workers comp appeal, judicial review suit)(no-evidence summary judgment for carrier affirmed)
AFFIRMED: Opinion by Justice Sullivan
Before Justices Brock Yates, Guzman and Sullivan
14-08-00377-CV Thomas Gonzales v. Services Lloyds Insurance Company
Appeal from 152nd District Court of Harris County
Trial Court Judge: Kenneth Price Wise
Trial Court Cause No. 2007-39965
M E M O R A N D U M O P I N I O N
The Division of Workers' Compensation (“the Division") determined that appellant, Thomas Gonzales,
was not entitled to workers' compensation benefits. That decision was affirmed by a Division appeals
panel. Gonzales petitioned for judicial review in the Harris County District Court, and the trial court
ultimately granted a no-evidence summary judgment in favor of appellee, Service Lloyds Insurance
Company ("the Carrier") that Gonzales now appeals. We affirm.
Background
Gonzales filed a claim for workers' compensation benefits alleging that he injured his back when he
tripped over extension cords while working for Watson Grinding and Manufacturing Company, Inc.
(“Watson") on August 23, 2006. At the time, Watson was insured for workers' compensation purposes
by the Carrier.
On February 27, 2007, the Division held a contested case hearing and determined that Gonzales “did
not have a compensable injury" and “did not have disability." An appeals panel of the Division
affirmed. On July 3, 2007, Gonzales, acting pro se, filed a petition for judicial review of the
administrative decision with the 152nd District Court of Harris County.
On October 22, 2007, the Carrier[1] filed a no-evidence motion for summary judgment. Gonzales
responded by filing four sets of documents with the trial court that, he contends, demonstrate he
suffered a compensable injury. Following a hearing on April 4, 2008, the court granted the Carrier's
motion. On appeal, Gonzales argues the trial court erred in granting summary judgment.
Analysis
A. Standard of Review
We review a no-evidence summary judgment de novo by construing the record in the light most
favorable to the non-movant and disregarding all contrary evidence and inferences. Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). A no-evidence motion for summary
judgment must be granted if (1) the moving party asserts that there is no evidence of one or more
essential elements of a claim or defense on which the adverse party would have the burden of proof at
trial, and (2) the respondent produces no summary-judgment evidence raising a genuine issue of
material fact on those elements. See Tex. R. Civ. P. 166a(i). A no-evidence summary judgment is
improperly granted when the respondent brings forth more than a scintilla of probative evidence that
raises a genuine issue of material fact. See id.; Coastal Conduit & Ditching, Inc. v. Noram Energy Corp.,
29 S.W.3d 282, 284 (Tex. App.- Houston [14th Dist.] 2000, no pet.).
We cannot differentiate between pro se litigants and those represented by counsel with regard to
compliance with procedural rules. See Canton-Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 930
(Tex. App.- Houston [14th Dist.] 2008, no pet. h.). Thus, Gonzales was required, as any other litigant,
to comply with Rule 166a by producing competent summary-judgment evidence sufficient to raise a
genuine issue of material fact. See id.
B. The Workers' Compensation Act
Under the Workers' Compensation Act, only injuries occurring "in the course and scope of employment"
are considered “compensable injuries." Tex. Lab. Code Ann. § 401.011(10)(Vernon Supp. 2008). The
Act defines “course and scope of employment" as "an activity of any kind or character that has to do
with and originates in the work, business, trade, or profession of the employer and that is performed by
an employee while engaged in or about the furtherance of the affairs or business of the employer." Id.
§ 401.011(12). It is the claimant's burden to establish that an injury occurred in the course and scope
of employment and that the injury produced a total or partial disability. Service Lloyds Ins. Co. v.
Martin, 855 S.W.2d 816, 820 (Tex. App.- Dallas 1993, no writ).
C. Application
In its motion for summary judgment, the Carrier asserted that there was no evidence of disability or
compensable injury. In response, Gonzales had the burden of producing summary-judgment evidence
sufficient to raise a genuine issue of fact as to the challenged elements.[2] See Arguelles v. Kellogg
Brown & Root, Inc., 222 S.W.3d 714, 723 (Tex. App.- Houston [14th Dist.] 2007, no pet.). We hold that
he failed to carry that burden.
In determining whether Gonzales raised more than a scintilla of evidence in support of his claim, we are
limited to the summary judgment proof produced in the response. See DeGrate v. Executive Imprints,
Inc., 261 S.W.3d 402, 408 (Tex. App.- Tyler 2008, no pet.). Further, when a non-movant presents
summary judgment evidence in response to a no-evidence motion, that party must specifically identify
the supporting proof it seeks to have considered by the trial court. See id.; San Saba Energy, L.P. v.
Crawford, 171 S.W.3d 323, 330 (Tex. App.- Houston [14th Dist.] 2005, no pet.).
Following the Carrier's motion, Gonzales filed four sets of documents on four different dates.[3]
However, Gonzales offered no specific explanation as to how these documents established the
existence of a compensable injury or disability. General references to attached documents alone do
not relieve the respondent of his burden to direct the court's attention to probative evidence. See
DeGrate, 261 S.W.3d at 408. Neither this court nor the trial court is required to wade through a
voluminous record to marshal a respondent's proof for him. Arredondo v. Rodriguez, 198 S.W.3d 236,
238 (Tex. App.- San Antonio 2006, no pet.) (citing Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 81
(Tex. 1989)).
Because the documents Gonzales filed in response to the Carrier's motion for summary judgment failed
to identify specific and competent summary judgment evidence demonstrating that he suffered a
compensable injury and disability, he did not raise a fact issue sufficient to defeat the motion. See id.
at 239. Therefore, we cannot conclude the trial court erred by granting summary judgment for the
Carrier.
Conclusion
Finding no error in the issue presented on appeal, we affirm.
/s/ Kent C. Sullivan
Justice
Panel consists of Justices Yates, Guzman, and Sullivan.
[1] Gonzales named both Watson and the Carrier in his original petition. On October 9, 2007,
the District Court granted a non-suit against Watson, and the case proceeded against the Carrier.
[2] Gonzales does not contend that he was not given an adequate time to conduct discovery.
See Tex. R. Civ. P. 166a(i).
[3] Together, the four sets of documents amount to approximately seventy-five pages.