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    Henry QUANAIM, Appellant, v. FRASCO RESTAURANT & CATERING and Frasco, Inc., Appellees.
    No. 14-98-00890-CV.
    Court of Appeals of Texas, Houston (14th Dist.).
    March 9, 2000.
    Rehearing Overruled May 11, 2000.

      H. Victor Thomas, Houston, for appellant.
    Caldwell Fletcher, Houston, for appel-lees.
    Panel consists of Justices YATES, FOWLER and FROST.
   OPINION ON REHEARING

KEM THOMPSON FROST, Justice.

Appellant’s motion for rehearing is granted. This court’s opinion of September 23, 1999, is withdrawn and this opinion is issued in its place.

Introduction

Appellant, a personal injury plaintiff in the court below, seeks reversal of three summary judgments rendered in favor of defendants/appellees. In a challenge to this court’s appellate jurisdiction, appellees urge the court to dismiss on the ground that appellant failed to timely perfect this appeal. We overrule appellees’ challenge to this court’s jurisdiction. After considering the merits of the appeal, we affirm in part and reverse and remand in part.

Factual and Procedural Background

In November 1997, Henry Quanaim, appellant and the plaintiff in the suit below, sued Frasco Restaurant & Catering for injuries he sustained in June 1995, when he slipped and fell in the hallway of the Stouffer Renaissance Hotel. Quanaim, then a hotel employee, alleged that Frasco Restaurant & Catering, which had been hired to cater a wedding reception at the hotel, was negligent in permitting the floor to become hazardous and in failing to properly train and supervise its employees. Frasco Restaurant & Catering filed a verified answer denying it was the proper party. Quanaim then joined Frasco, Inc. as a party defendant and asserted the same claims based on negligence and gross negligence. Frasco, Inc. asserted several affirmative defenses, including: (1) Qua-naim’s claims are barred by the two-year statute of limitations; (2) Frasco, Inc. was an agent of Quanaim’s employer (the owner of the Stouffer Renaissance Hotel) for the purpose of catering the wedding, and thus, is barred from bringing the suit by section 408.001(a) of the Texas Labor Code; and (3) Quanaim’s claims are barred by a previous federal court judgment.

Frasco, Inc. filed two separate motions for summary judgment, each of which sought dismissal of the suit on independent grounds. In its first motion, filed March 18, 1998, Frasco, Inc. sought a “no evidence” summary judgment on the ground that it was not a possessor of the premises. On the same day, but in a separate motion, Frasco Restaurant & Catering moved for summary judgment on the ground that it was not a legal entity at the time of the incident and, therefore, could not be sued. On April 15, 1998, Frasco, Inc. filed its “Second Motion for Summary Judgment,” alleging that because Quanaim had sued his employer (the owner of the Stouffer Renaissance Hotel) in federal court to recover damages for the injuries made the subject of his state court suit, he was barred by the exclusive remedy provisions of the Texas Labor Code, section 408.001(a), and by the doctrine of collateral estoppel from asserting claims against Frasco, Inc. in this suit.

The trial court did not rule on the summary judgment motions in the order they were filed, but in the course of a few weeks’ time, the court granted each of the motions by entry of three separate orders. On May 5,1998, the trial court granted the motion filed by Frasco Restaurant & Catering on the ground that it was not a legal entity at the time of the incident and therefore could not be sued. On May 11, 1998, the trial court granted the second motion for summary judgment disposing of Quanaim’s claims against Frasco, Inc. on the grounds that they are barred by the Texas Labor Code’s exclusive remedy provisions and a prior federal court judgment. On May 18, 1998, the trial court granted Frasco, Inc.’s first motion for summary judgment on the ground that Frasco, Inc. was not a possessor of the premises.

On June 17, 1998, Quanaim simultaneously filed a motion for new trial and a separate motion asking the trial court to reconsider its rulings on the summary judgment motions. In both of his June 17 motions, Quanaim set forth arguments addressing each of the grounds on which Frasco Restaurant & Catering and Frasco, Inc. (hereafter collectively referred to as “Frasco”) had moved in each of the respective motions for summary judgment. In opposing Quanaim’s motion for new trial, Frasco asserted the trial court lacked plenary jurisdiction to hear the motion because Quanaim had filed it more than thirty days after the court’s May 11 order, which had disposed of all remaining parties and claims.

After Quanaim initiated this appeal, Frasco filed a motion asking this court to dismiss the appeal for lack of jurisdiction on the ground that Quanaim’s notice of appeal was not timely filed as to two of the three orders granting summary judgment. According to Frasco, the appellate timetable was not extended, which made Qua-naim’s notice of appeal, filed August 3, 1998, untimely. Frasco contends the orders the trial court entered on May 5 and 11, 1998, disposed of both defendants and all claims of the plaintiff, thus making Quanaim’s motion for new trial or notice of appeal due no later than June 10, 1998. Frasco asserts that inasmuch as Quanaim’s notice of appeal was not filed until August 3, 1998, it was untimely and insufficient to confer appellate jurisdiction on this court. Quanaim responds that the only consequence of the court’s entry of multiple orders is that he must “address three different grounds for summary judgment on appeal.” Quanaim contends that his time for fifing a motion for new trial did not begin to run until the last summary judgment order was signed and therefore his motion for new trial and subsequent notice of appeal were timely filed.

On November 19, 1998, this court denied Frasco’s motion to dismiss, without opinion. In its appellate brief, Frasco urges us to reconsider our previous ruling and to dismiss the appeal for lack of jurisdiction.

JURISDICTION

The first jurisdictional prerequisite to an appeal is the timely fifing of a notice of appeal. If a notice of appeal is not timely filed, the appellate court acquires no jurisdiction over the appeal except to dismiss it. See Bixby v. Bice, 992 S.W.2d 615, 616 (Tex.App.— Waco 1999, no pet.); Gonzalez v. Doctors Hospital-East Loop, 814 S.W.2d 536, 537 (Tex.App.— Houston [1st Dist.] 1991, no writ); K & S Interests, Inc. v. Texas American Bank/Dallas, 749 S.W.2d 887, 890 (Tex.App. — Dallas 1988, writ denied). In determining whether a notice of appeal was timely filed, we look to the date of the final judgment, i.e., “whatever order disposes of any parties or issues remaining before the court.” Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex.1995); Martinez v. Humble Sand & Gravel, Inc., 875 S.W.2d 311, 313 (Tex.1994). There can be only one final judgment in a lawsuit. See Tex.R. Civ. P. 301; Logan v. Mullis, 686 S.W.2d 605, 609 (Tex.1985); Wang v. Hsu, 899 S.W.2d 409, 411 (Tex.App. — Houston [14th Dist.] 1995, writ denied). Because this case involves multiple court orders disposing'of claims, the first question we must decide is which, if any, of the orders granting summary judgment is the final judgment.

A judgment is final and appeal-able when it determines the rights of all parties and disposes of all issues in a case so that no future action by the court is necessary to settle the entire controversy. See Schlipf v. Exxon Corp., 644 S.W.2d 453,455 (Tex.1982); Cowan v. Moreno, 903 S.W.2d 119, 121 (Tex.App. — Austin 1995, no writ). Ordinarily, an order granting summary judgment must expressly dispose of all parties and all issues in the case for it to be a final, appealable judgment. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex.1993). Once a summary judgment becomes a final and appealable judgment, the timetables for challenging the judgment begin to run. See Tex.R. Civ. P. 329b(d) (timetable for trial court to grant new trial or vacate, modify, correct, or reform the judgment); Tbx.R.App. P. 26.1 (appellate timetable). The trial court’s initial period of plenary power over its judgment and the last day to file a motion for new trial or perfect an appeal are the same: thirty days after the date the judgment is signed. See Tex.R. Civ. P. 329b(a), (d); Tex.R.App. P. 26.1. If a motion for new trial is timely filed by any party, the trial court’s period of plenary power is extended until thirty days after all timely filed motions for new trial or motions to vacate, modify, correct, or reform the judgment are overruled. See Tex.R. Civ. P. 329b(e).

The following timetable illustrates the operative dates for purposes of determining when the time for Quanaim to challenge the trial court’s rulings began and ended:

Nov. 25,1997

March 18,1998

April 15, i «

May 5,1998

May 11,1998

1st Amended Petition Alleging Negligence & Gross Negligence against (1) Fraseo Restaurant & Catering and (2) Frasco, Inc.

(1) Frasco Restaurant & Catering files a MSJ alleging that it was not a legal entity at the time of the accident and therefore cannot be sued (2) Frasco, Inc. files its 1st MSJ alleging that it was not a possessor of the premises.

Frasco, Inc. files 2nd MSJ alleging that Quanaim’s claims are barred by the “exclusive remedy” provision of the Texas Labor Code.

Court grants MSJ of Frasco Restaurant & Catering.

Court grants 2nd MSJ of Frasco, Inc.

May 18,1998

June 10,1998

June 17,1998

August 3,1998

Court grants 1st MSJ of Frasco, Inc.

Deadline for filing Motion for New Trial if May 11, 1998 order is the final judgment.

Quanaim files Motion For New Trial [Deadline for filing Motion for New Trial if May 18, 1998 order is final judgment].

Quanaim files Notice of Appeal.

The May 5 order, granting summary judgment on the ground that Frasco Restaurant & Catering was not a legal entity at the time of the accident and therefore could not be liable, was interlocutory because at the time it was signed, there remained other claims and parties in the suit. See Woosley v. Smith, 925 S.W.2d 84, 86 (Tex.App. — San Antonio 1996, no writ) (observing that an order that does not dispose of all parties to suit and which leaves case in such a situation that further action is required to settle controversy is interlocutory order). The May 11 order, granting summary judgment based on the Texas Labor Code’s exclusive remedy provision and the prior federal court judgment, terminated the outstanding claims and rights of all parties. Upon the trial court’s signing of the May 11 order, there remained nothing for the trial court to adjudicate. Therefore, the May 11 order was a final judgment. Quanaim, however, contends that the signing of the May 18 order, which granted summary judgment on different grounds, constitutes a modification, correction or reformation of the summary judgment order signed on May 11 and, therefore, under Texas Rule of Civil Procedure 329b(h), the time for appeal runs from the date of the May 18 order.

Quanaim further argues that “[bjecause all three motions were granted, [he] now has to address three different grounds for summary judgment on appeal.” This argument suggests that the trial court could continue to add on in piecemeal fashion to a judgment that had already disposed of all remaining parties and claims merely by signing subsequent orders. We are aware of no means by which we may treat two final judgments as one. When there are two final judgments in a case, only one can survive. For more than half á century, the general rule, as set forth in Mullins v. Thomas, 136 Tex. 215, 150 S.W.2d 83 (1941), has been that the entry of a second judgment in the same case is not a vacation of the first; if there is'nothing in the record to show the first was vacated, the second is a nullity. 150 S.W.2d at 84; Exxon Corp. v. Garza, 981 S.W.2d 415, 419 (Tex.App. — San Antonio 1998, pet. denied); Charles L. Hardtke, Inc. v. Katz, 813 S.W.2d 548, 549 (Tex.App. — Houston [1st Dist.] 1991, no writ); 410 West Ave. Ltd. v. Texas Trust Sav. Bank, F.S.B., 810 S.W.2d 422, 425 (Tex.App. — San Antonio 1991, no writ).

Because appellate timetables are calculated from the signing of the final judgment in a case, parties must be able to accurately determine not only when a judgment is final but also when and if a court has vacated, modified, reformed or corrected a judgment. It has long been the rule in Texas that a court must be “express and specific” in vacating, setting aside, modifying, or amending a judgment. See McCormack v. Guillot, 597 S.W.2d 345, 346 (Tex.1980) (adopting the reasoning this court set out in Poston Feed Mill Co. v. Leyva, 438 S.W.2d 366 (Tex.Civ.App. — Houston [14th Dist.] 1969, writ dism’d)). This requirement was born out of a need to ensure clarity and eliminate uncertainty and ambiguity in calculating the time for perfecting an appeal. Noting the reason for the “express and specific” requirement, this court, in reasoning expressly adopted by the Texas Supreme Court, stated:

Of necessity, a court must speak through its written orders. Where it has so spoken only a clear and unequivocal written order or expression by that court will vacate, set aside, modify or amend its first order. Any other rule would be the parent of uncertainty for the orders of any court.

Poston, 438 S.W.2d at 369 (emphasis added). Recently, the Thirteenth Court of Appeals rejected the notion that a second order, signed before the trial court’s plenary power lapsed but which made no reference whatsoever to the first order, functioned as a correction, modification, amendment or vacation of the prior order. See In re Hamilton, 975 S.W.2d 758 (Tex.App. — Corpus Christi 1998, pet. denied). That court, citing McCormack and .this court’s holding in Poston, held that to be effective, the order vacating, setting aside, amending or modifying the original judgment must be “express and specific.” See id. at 760.

Cases holding that the second judgment replaces the - first judgment traditionally have been limited to situations in which something in the record clearly demonstrates the trial court’s intent to replace the first judgment with the second judgment. See, e.g., B & M Machine Co. v. Avionic Enters., Inc., 566 S.W.2d 901 (Tex.1978) (per curiam) (finding intent to vacate based on fact that second judgment was titled “Amended Judgment” and findings of fact and conclusions of law noted trial court had amended the first judgment); City of West Lake Hills v. State, 466 S.W.2d 722, 726-27 (Tex.1971) (finding intent to vacate first judgment based on “corrected final judgment” heading on second motion); Anderson v. Teco Pipeline Co., 985 S.W.2d 559, 562 (Tex.App. — San Antonio 1998, pet. denied) (judgment entitled “Amended Final Judgment” signed during trial court’s plenary power vacated previously signed “Final Judgment”); but see Woosley v. Smith, 925 S.W.2d 84, 87 (Tex.App. — San Antonio 1996, no writ) (where there was absolutely no indication that the “trial court had any intent to vacate the first decree or substitute the first decree with the second,” the first judgment controls and the second is void). Despite this long line of cases, the rule requiring a clear and unequivocal expression of the trial court’s intent to replace one judgment with another seems to have been eroded over the past decade. While the Texas Supreme Court has not expressly overruled cases such as McCormack and Mullins, which require a clear indication that the first order is vacated, it has indicated that these longstanding requirements may no longer apply.

In Check v. Mitchell, 758 S.W.2d 755 (Tex.1988) (per curiam), the Texas Supreme Court confronted a procedural scenario similar to the one presented here. The trial court entered two orders constituting final judgments and, as in this case, the appellant calculated the appellate timetable from the date of the second order. See id. The court of appeals dismissed the appeal for want of jurisdiction. See id. In reversing the intermediate court, the Texas Supreme Court relied on Texas Rule of Civil Procedure 329b(h), which states:

If a judgment is modified, corrected or reformed in any respect, the time for appeal shall run from the time the modified, corrected or reformed judgment is signed, but if a correction is made pursuant to Rule 316 after expiration of the period of plenary power provided by this rule, no complaint shall be heard on appeal that could have been presented in an appeal from the original judgment.

Tex.R. Crv. P. 329b(h) (emphasis added). The Check court held that “any change, whether or not material or substantial, made in a judgment while the trial court retains plenary power, operates to delay the commencement of the appellate timetable until the date of the modified, corrected or reformed judgment is signed.” 758 S.W.2d at 755.

In the wake of Check, courts have inferred or presumed an intent by the trial court to vacate, modify, correct or reform a judgment. For example, the First Court of Appeals found that a second judgment restarted the appellate timetable even though neither the second judgment nor the record indicated that the first judgment had been vacated. See Alford v. Whaley, 794 S.W.2d 920, 922 (Tex.App.— Houston [1st Dist.] 1990, no writ). Likewise, the absence of a clear expression of the trial court’s intent to vacate, modify or reform its previous order did not prevent the Third Court of Appeals from finding a modification in Owens-Coming Fiberglas Corp. v. Wasiak, 883 S.W.2d 402 (Tex.App. — Austin 1994, no writ). Reasoning that because neither Check nor Rule 329b(h) expressly require the modified, corrected or reformed judgment to indicate the trial court’s intent to vacate the first judgment before the second judgment will be given effect, the Owens-Coming court went a step further and held that any change in a judgment during the trial court’s period of plenary power should be treated as a modified, corrected, or reformed judgment that “presumptively vacates” the trial court’s former judgment unless the record indicates a contrary intent. 883 S.W.2d at 411. This holding essentially turns the Mullins test for intent upside down. Instead of requiring the record to affirmatively show the trial court’s intent to vacate, modify, correct or reform the judgment, Owens-Coming presumes such an intent unless the record reveals otherwise.

Although at least one of our sister courts has found that Check did not overrule Mullins, recent Texas Supreme Court cases suggest otherwise. In Lane Bank Equipment Co. v. Smith Southern Equipment, Inc., 10 S.W.3d 308, 310-11, (Tex.2000) (en banc), the Texas Supreme Court considered whether a timely filed post-judgment motion seeking to add an award of sanctions to an existing judgment was sufficient to extend the thirty-day period in which a trial court may exercise plenary power over its judgment. Affirming the First Court of Appeals’ holding, the Lane court found that such a motion qualified as a motion to modify, a judgment under Rule 329b(g) and so extended the trial court’s plenary jurisdiction. Id. at 313-14. Drawing a distinction between a motion under 329b(g) and an order under 329b(h), the Lane court specifically noted that the expansive “in any respect” language found only in Rule 329b(h) means that “any change” to the judgment made by the trial court while it retains plenary jurisdiction will restart the appellate timetable, but that only a motion seeking a “substantive change” will extend the appellate deadlines under Rule 329b(g). Id. at 312-13.

Although we have not previously addressed the particular issue now before us, in Wang v. Hsu, 899 S.W.2d 409 (Tex. App. — Houston [14th Dist.] 1995, writ denied), we applied Owens-Coming to find that a second judgment vacated the first one, but also recognized the necessity that orders which vacate, set aside, modify, or amend other orders be “express and specific” in finding the first judgment was not reinstated by the vacation of the second. See id. at 412 (citing McCormack, 597 S.W.2d at 346; Ex parte Olivares, 662 S.W.2d 594, 595 (Tex.1983)). The case now before us places these two competing principles directly at odds.

There is nothing in the record of this case to suggest, by inference or otherwise, that the trial court vacated the May 11 order, thus making the last signed order the final judgment in the case. To find Rule 329b(h) applicable here, we must infer from the court’s mere entry of the May 18 judgment, and from this event alone, that the trial court intended to vacate, modify, correct, or reform the May 11 judgment.

Inasmuch as the Texas Supreme Court has found in Lane that a motion for sanctions proposed a “change” to the final judgment under Rule 329b(g), we are persuaded that the trial court’s entry of a subsequent order identifying different grounds for summary judgment should also be construed as a “change” sufficient to restart the appellate timetable under Rule 329b(h). Accordingly, we find the trial court’s May 18 summary judgment was a modification, correction or reformation of the May 11 summary judgment, and that by entering the May 18 judgment, the trial court presumptively vacated the May 11 summary judgment. Therefore, the May 18 judgment is the only final judgment in this case. The signing of that judgment restarted the appellate timetable. Because Quanaim’s motion for new trial and notice of appeal were filed within the times prescribed by Rule 329b, Qua-naim timely perfected his appeal.

While this holding represents a departure from McCormack and Mullins, it falls within the broad sweeping “in any respect” language of Rule 329b(h) and honors the Texas Supreme Court’s directive that we endeavor to construe procedural rules reasonably yet liberally so that a litigant does not lose his right to appeal through the imposition of a requirement not absolutely necessary to effect the purpose of a rule. See Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.1997); Jamar v. Patterson, 868 S.W.2d 318, 319 (Tex.1993). Today’s ruling is also in harmony with the Texas Supreme Court’s recent holdings that have removed procedural hurdles precluding appellate review on the merits. See, e.g., Verburgt, 959 S.W.2d at 616-17 (implying motion to extend time to perfect appeal); State Dept. of Highways v. Payne, 838 S.W.2d 235, 239-41 (Tex.1992) (liberalizing rules for preservation of charge complaints).

Having determined that the May 18 order is the final judgment, we must address how this decision affects the other orders granting summary judgment before turning to the merits of Quanaim’s appeal. Because there can be only one final judgment in a case, we cannot treat the May 18 order as a “supplement” to the May 11 order. To do so would violate the “one final judgment” rule. See Tex.R. Civ. P. 301. In deeming the May 18 order the final judgment in this case, we necessarily had to find that the trial court vacated and superseded the May 11 order granting summary judgment, thus rendering it effectively “dead.” See Wang, 899 S.W.2d at 411. This means that the trial court granted summary judgment to Frasco, Inc. only on the grounds set forth in the May 18 order granting Frasco, Ine.’s first motion for summary judgment (Frasco, Inc. was not a possessor of the premises), and not on the grounds set forth in the May 11 order granting Frasco, Inc’s second motion for summary judgment (Quanaim’s claims are barred by the Texas Labor Code’s exclusive remedy provisions and the prior federal court judgment).

Generally, the denial of a motion for summary judgment is interlocutory and not appealable. See Novak v. Stevens, 596 S.W.2d 848, 849 (Tex.1980). However, this rule does not apply “when a movant seeks summary judgement on multiple grounds and the trial court grants the motion on one or more grounds but denies it, or fails to rule, on one or more other grounds presented in the motion and urged on appeal.” Baker Hughes, Inc. v. Keco R & D, Inc., 12 S.W.3d 1, 5 (Tex.1999) (citing Cincinnati Life Insurance Co. v. Cates, 927 S.W.2d 623 (Tex.1996)). The appellate court must review all of the summary judgment grounds on which the trial court actually ruled, whether granted or denied, and which are dispositive of the appeal, and may consider any grounds on which the trial court did not rule. See id. at 5. The Texas Supreme Court has made it clear that the “rule in Cates does not depend on the number of motions filed, when they were presented to the trial court, or when the trial court ruled.” Id. at 5. For purposes of this appeal, we will treat the trial court’s vacation of the May 11 order as a denial of Frasco, Inc.’s second motion for summary judgment. Therefore, our review on the merits encompasses not only the grounds set forth in the first motion but also the grounds set forth in the second motion. Our review also includes Quanaim’s challenge to the trial court’s May 5 order, which granted summary judgment in favor of Frasco Restaurant & Catering.

SummaRY Judgment

Frasco Restaurant & Catering and Frasco, Inc. each filed “no evidence” motions for summary judgment under Texas Rule of Civil Procedure 166a(i). This rule provides:

After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is not evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex.R. Civ. P. 166a(i). A “no evidence” motion for summary judgment places the burden on the non-movant to present enough evidence to be entitled to a trial. See Robinson v. Warner-Lambert & Old Corner Drug, 998 S.W.2d 407, 409 (Tex.App.—Waco 1999, no pet.) (citing Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex.App.—Houston [14th Dist.] 1999, no pet.)). The purpose of the summary judgment is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial.” Robinson, 998 S.W.2d at 409; Lampasas, 988 S.W.2d at 436 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Thus, the focus is shifted from the pleadings to the actual evidence. See Robinson, 998 S.W.2d at 410; Lampasas, 988 S.W.2d at 436. In that regard, a “no evidence” motion for summary judgment is improperly granted if the non-movant brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. See Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex.App.—San Antonio 1998, pet. denied). Summary judg ment, however, must be granted under rule 166a(i) if the party opposing the motion fails to bring forth competent summary judgment proof. See Saenz v. Southern Union, 999 S.W.2d 490, 492 (Tex.App.—El Paso 1999, pet. denied); Robinson, 998 S.W.2d at 412.

Frasco, Inc.’s second motion for summary judgment, although purporting to be filed under the “no evidence” provisions of Rule 166a(i), was based on affirmative defenses and, therefore, was actually a traditional motion for summary judgment. A defendant moving for summary judgment on the basis of an affirmative defense must conclusively prove all essential elements of that defense. See American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997). In reviewing a traditional motion for summary judgment, we take as true all evidence favorable to the non-movant, and we make all reasonable inferences in the non-movant’s favor. See KPMG Peat Marwick v. Harrison County Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex.1999). If the mov-ant’s motion and summary judgment proof facially establish-its right to judgment as a matter of law, the burden shifts to the non-movant to raise a material fact issue sufficient to defeat summary judgment. See HBO, A Div. of Time Warner Entertainment Co., L.P. v.. Harrison, 983 S.W.2d 31, 35 (Tex.App.—Houston [14th Dist.] 1998, no pet.').

Frasco Restaurant & Catering

Frasco Restaurant & Catering moved for summary judgment on the ground that Quanaim could not establish that it was the legal entity present on the day in question. According to Frasco Restaurant & Catering, it “no longer was an assumed name business,” and Frasco, Inc. was the only party present; therefore, Frasco Restaurant & Catering was entitled to summary judgment as a matter of law. Quanaim argues that because Frasco, Inc. was an assumed or common name for Frasco Restaurant & Catering, he was entitled to file suit against that entity under Texas Rules of Civil Procedure 28. This rule provides:

Any partnership, unincorporated association, private corporation, or individual doing business under an assumed name may sue or be sued in its partnership, assumed or common name for the purpose of enforcing for or against it a substantive right, but on a motion by any party or on the court’s own motion the true name may be substituted.

Tex.R: Crv. P. 28. Civil suits, however, may be maintained only by or against parties having an actual or legal existence. See Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 759 (Tex.1995) (citing Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex.1987)). This is important, here, because “a corporation which has no legal existence at the time of an incident cannot be liable for that incident.” Edmunds v. Sanders, 2 S.W.3d 697, 704 (Tex.App.—El Paso 1999, pet. denied) (citing Bailey, 894 S.W.2d at 759; Henson, 734 S.W.2d at 649).

Quanaim made no effort to show that Frasco Restaurant & Catering legally existed at the time the accident occurred. The only “evidence” Quanaim produced in support of his contention that Frasco, Inc. “was known as Frasco Restaurant & Catering” in June 1995 was his “verified” response to the motions for summary judgment filed in the trial court. It is well settled that neither the motion for summary judgment, nor the response, even if sworn, is ever proper summary judgment proof. See Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex.1971); Webster v. Allstate Ins. Co., 833 S.W.2d 747, 749 (Tex.App.—Houston [1st Dist.] 1992, no writ); Keenan v. Gibraltar Sav. Ass’n, 754 S.W.2d 392, 394 (Tex.App.—Houston [14th Dist.] 1988, no writ); Nicholson v. Memorial Hosp. Sys., 722 S.W.2d 746, 749 (Tex.App.—Houston [14th Dist.] 1986, writ ref d n.r.e.). Because verified responses are not proper summary judgment proof and Quanaim failed to produce any evidence, Frasco Restaurant & Catering was entitled to summary judgment.

Frasco, Inc.

We now consider whether Frasco, Inc. was entitled to summary judgment on any of three possible grounds: (1) it was not a possessor of the premises at the time of the accident, and thus Quanaim cannot establish a critical element of his prima facie case for -negligence; (2) Quanaim’s claims are barred by the exclusive remedy provisions of the Texas Labor Code; and/or (3) Quanaim’s claims are barred by a federal court judgment. The second and third grounds , are based on affirmative defenses.

Premises Liability

Quanaim claims that Frasco, Inc. negligently created an unreasonably dangerous condition by spilling grease and food in the hotel hallway, causing him to fall. To establish tort liability for negligence under these circumstances, a plaintiff must prove the existence and the breach of a legal duty owed to him by the defendant, as well as damages proximately caused by that breach. See Brooks v. National Convenience Stores, Inc., 897 S.W.2d 898, 901 (Tex.App.—San Antonio 1995, no writ) (citing El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987)). The existence of a legal duty is a question of law for the court to decide from the surrounding facts. See Loyd v. ECO Resources, Inc., 956 S.W.2d 110, 130 (Tex.App.—Houston [14th Dist.] 1997, no pet.).

In its first motion for summary judgment, Frasco, Inc. argued that it owed no duty to Quanaim because there is no evidence that it had the right to control the premises at the time the accident occurred. Frasco, Inc. bolstered this “no evidence” motion by pointing to deposition testimony from Gary Baumann, the Director of Catering at the Stouffer Renaissance Hotel, where Frasco, Inc. catered the wedding reception. Baumann testified the hotel routinely provided security to monitor the premises and to report any hazards. According to Baumann, the hotel maintained “responsibility in regards to service, beverages, and room setup,” but that Frasco, Inc. “handled] all food aspects of the function.” Baumann added that while the hotel provided space for the caterers to use, Frasco, Inc. was obligated to use “reasonable care” and was “responsible for [the] area that [the caterers] were working in.” Contrary to Frasco, Inc.’s intention, this testimony does not establish that there is no evidence to show it had the right to control the premises, but rather raises a genuine issue of material fact as to whether it had control over the premises at the time Quanaim sustained his injuries. The existence of a material issue of fact precludes summary judgment. See Hennessy v. Estate of Perez, 725 S.W.2d 507, 509 (Tex.App.—Houston [1st Dist.] 1987, no writ). Accordingly, the trial court erred in granting summary judgment on the ground that Frasco, Inc. was not a possessor of the premises at the time of the accident.

Exclusive Remedy Provisions of the Texas Labor Code

In its second motion for summary judgment, Frasco, Inc. asserted that Quanaim’s claims are barred because section 408.001(a) of the Texas Labor Code “precludes any action against the employer or Plaintiffs fellow servants.” Frasco, Inc. couched this motion as a “no evidence” summary judgment motion. However, as previously mentioned, this is an affirmative defense on which Frasco, Inc. had the burden of proof; therefore, Frasco, Inc. could not bring a “no evidence” summary judgment motion based upon that affirmative defense. To prevail on a traditional motion for summary judgment, a defendant must prove all the elements of its affirmative defense as a matter of law. See American Tobacco Co. v. Grinnell, 951 S.W.2d 420,425 (Tex.1997).

Section 408.001(a) of the Texas Labor Code, on which Frasco, Inc. relies, states:

[R]ecovery of workers’ compensation benefits is the exclusive remedy of an employee covered by workers’ eompen-sation insurance coverage or a legal beneficiary against the employer or an agent or employee of the employer for the death of or a work-related injury sustained-by the employee.

Tex. Lab.Code Ann. § 408.001(a) (Vernon 1996). Neither Frasco, Inc.’s second motion for summary judgment nor its appellate brief explains how Frasco, Inc. qualifies under the statute, i.e., as an employer, fellow servant, or agent of Quanaim’s employer. To support its motion, Frasco, Inc. merely pointed to the federal court suit in which Quanaim took the position that his employer (CTF Hotel Holdings, Inc., the owner of the Stouffer Renaissance Hotel) controlled the premises to the extent that his injuries were proximately caused by a failure of the hotel owner and his co-employees to observe ordinary care. Frasco, Inc. argued that “worker’s compensation coverage precludes any action against the employer or fellow servants,” and that because Quanaim sued his employer and co-employees for the injuries in question, he elected remedies as a matter of law. Quanaim responded that he was an employee of the hotel and not Frasco, Inc., and therefore, his suit is not barred. Inasmuch as Frasco, Inc. did not establish that it was Quanaim’s employer or an agent or employee of Quanaim’s employer, it failed to show that the worker’s compensation exclusive remedy provision found in section 408.001(a) barred Quanaim’s claims as a matter of law. Therefore, it would not have been proper for the trial court to grant’ Frasco, Inc.’s summary judgment based on this affirmative defense.

Collateral Estoppel

In its second summary judgment motion, Frasco, Inc. also urged the court to grant summary judgment in its favor based on a judgment on the merits in the prior federal suit. Frasco, Inc. maintained that it was a necessary party to the federal suit under Federal Rule of Civil Procedure 19 and that the dismissal of that suit on the merits has the legal effect of “binding Quanaim to the judgment.” Frasco, Inc. argued in its appellate brief that Qua-naim’s negligence claims are therefore barred under the doctrine of collateral es-toppel because the federal court’s judgment dismissing Quanaim’s claims precludes the issues Quanaim raises here.

The broad doctrine of res judicata encompasses two principal categories: (1) claim preclusion, also referred to as res judicata, and (2) issue preclusion, known as collateral estoppel. See Barr v. Resolution Trust Corp. ex. rel. Sunbelt Federal Sav, 837 S.W.2d 627, 628 (Tex.1992). The first category, res judicata, is not applicable here because Frasco, Inc. was not a party to the federal lawsuit. Frasco, Inc. is relying on the doctrine of collateral estoppel, which is used to prevent a party from relitigating an issue that it previously litigated and lost against another defendant. See Quinney Elec., Inc. v. Kondos Entertainment, Inc., 988 S.W.2d 212, 213 (Tex.1999) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 329, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979); Johnson & Higgins of Texas, Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 519 (Tex.1998)).

As previously mentioned, Frasco, Inc., as the party relying on this affirmative defense, has the burden of proof. Therefore, it could not bring a “no evidence” motion under Rule 166a(i). Rather, to prevail on this ground, Frasco, Inc., as the movant, was required to establish the following elements: (1) the facts sought to be litigated in the second action were fully and fairly litigated in the first action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action. See Mann v. Old Republic Nat’l Title Ins. Co., 975 S.W.2d 347, 350 (Tex.App.—Houston [14th Dist.] 1998, no pet.) (citing Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex.1994); Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex.1990)). Whether collateral estoppel applies is a question of law for the court to decide. See Domingues v. City of San Antonio, 985 S.W.2d 505, 507 (Tex.App.—San Antonio 1998, pet. denied) (citing United States v. Brackett, 113 F.3d 1396, 1398 (5th Cir.), cert. denied, 522 U.S. 934, 118 S.Ct. 341, 139 L.Ed.2d 265 (1997); Hill v. Heritage Resources, Inc., 964 S.W.2d 89, 138 (Tex.App.—El Paso 1997, writ denied)).

In the federal suit against his employer, CTF Hotel Holdings, Inc., Quanaim asserted claims of age discrimination and wrongful termination for seeking worker’s compensation benefits. In that suit, Qua-naim alleged that the hotel hired caterers for functions and that these caterers “prepared and served” food in a hallway behind the banquet rooms. Specifically, Quanaim complained in the federal suit that: (1) the hotel was negligent in failing to heed his repeated warnings to move caterers from the hallway into the banquet kitchen because “spilled grease and food on the floors” was a health hazard, and (2) the hotel’s negligence was the cause of his accident and his injuries. In August 1997, the federal court granted CTF Hotel Holdings, Inc.’s motion for summary judgment and dismissed Quanaim’s claims on the merits.

Quanaim contends the federal court’s decision does not preclude his claims in this suit because his federal suit was one for age discrimination and wrongful termination, and not for personal injuries as a result of negligence. However, collateral estoppel may preclude relitigation of issues previously litigated even though the subsequent suit is based upon a different cause of action. See Johnson & Higgins, 962 S.W.2d at 519 (citing Wilhite v. Adams, 640 S.W.2d 875 (Tex.1982)). If a cause of action in the second lawsuit involves an element already decided in the first lawsuit, that cause of action is barred. See Johnson & Higgins, 962 S.W.2d at 519. For this to be true, however, the issue decided in the first action must be actually litigated, essential to that lawsuit’s judgment, and identical to the issue in the pending action. See id. (citing Getty Oil v. Insurance Co. of N. Am., 845 S.W.2d 794, 802 (Tex.1992); Eagle Properties, 807 S.W.2d at 721-22; Tarter v. Metropolitan Sav. & Loan Ass’n, 744 S.W.2d 926, 927 (Tex.1988); Van Dyke v. Boswell, O’Toole, Davis & Pickering, 697 S.W.2d 381, 384 (Tex.1985)).

In considering whether the issues are identical, we look to the elements of the claims. To make a prima facie case of age discrimination, the plaintiff must prove that: (1) the plaintiff was discharged; (2) he was qualified for the position; (3) he was in the protected class at the time of his discharge; (4) he was replaced by someone outside the protected class, or by someone younger or otherwise show that he was discharged because of age. See Adams v. Valley Federal Credit Union, 848 S.W.2d 182, 186-87 (Tex.App.—Corpus Christi 1992, no writ) (citing Bienkowski v. American Airlines, Inc., 851 F.2d 1503, 1505 (5th Cir.1988)). Frasco, Inc. does not allege that negligence would have any impact on the age discrimination claim. To prevail on an action for wrongful termination for the filing of a worker’s compensation claim, the plaintiff must establish a “causal link between the discharge and the employee’s invocation of rights” under the Texas Worker’s Compensation Act. See America West Airlines v. Tope, 935 S.W.2d 908, 912 (Tex.App.—El Paso 1996, no writ) (citing Trevino v. Corrections Corp. of America, 850 S.W.2d 806, 808 (Tex.App.—El Paso 1993, writ denied)). Frasco does not show that Qua-naim’s allegations of negligence on the' hotel’s part were “essential to the judgment” the federal court rendered against him on the wrongful termination claim because the record lacks the necessary documents from the federal suit. To support its motion, Frasco, Inc. tendered only the one-page final judgment issued by the federal court. The “Memorandum and Order,” which purportedly details the reasons for the federal court’s judgment, is absent from the record. Consequently, we must conclude that Frasco, Inc. did not show that collateral estoppel bars Quanaim’s negligence claim as a matter of law. Accordingly, it would not have been proper for the trial court to grant Frasco, Inc.’s second motion for summary judgment on grounds of collateral estoppel.

Conclusion

Quanaim timely perfected his appeal, and this court has jurisdiction to hear that appeal. The trial court properly granted summary judgment in favor of Frasco Restaurant & Catering, and that judgment is affirmed. Having found the trial court erred in granting Frasco, Inc’s summary judgment on the g’ounds that Frasco, Inc. was not a possessor of the premises, and having found the trial court could not have properly rendered summary judgment for Frasco, Inc. on the grounds of the Texas Labor Code’s exclusive remedy provision or collateral estoppel, we reverse and remand the case to the trial court for further proceedings.

      . The law firm of Hogan Dubose & Townsend, L.L.P., filed an amicus curiae brief in support of appellant’s motion for rehearing on the jurisdictional issue only. See Tex. R.App. P. 11.

      . Frasco, Inc.’s motion alleged that Qua-naim’s case "is precluded by a prior federal court judgment” and that its "dismissal upon the merits” bars Quanaim from proceeding against Frasco, Inc. in this case. Quanaim’s appellate brief characterizes this defense as res judicata, but, as noted infra, Frasco, Inc. actually relies on principles of collateral es-toppel to bar Quanaim’s claims.

      . “The trial court, regardless of whether an appeal has been perfected, has plenary power to grant a new trial or to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed." Tex.R. Civ. P. 329b(d) (emphasis added).

      . The May 11 summary judgment did not contain a "Mother Hubbard” clause, which would have made the judgment final on its face for purposes of appeal. See Mafrige, 866 S.W.2d at 592.

      . The only exception to this rule arises when it appears from the face of the record that the trial court signed a second judgment for the sole purpose of extending the appellate timetable. See Mackie v. McKenzie, 890 S.W.2d 807, 808 (Tex.1994); Wang v. Hsu, 899 S.W.2d 409, 411 (Tex.App. — Houston [14th Dist.] 1995, writ denied).

        .See Azbill v. Dallas County Child Protective Servs. Unit of Texas Dept, of Human and Regulatory Servs., 860 S.W.2d 133, 139 (Tex.App.— Dallas 1993, no writ) (noting that, in Mullins, the Texas Supreme Court did not identify any case or line of cases inconsistent with Check). The Owens-Coming court criticized the Azbill court for "ignorfing] the fact that nothing in-the record in Check demonstrated the trial court’s intent to vacate its first judgment.” 883 S.W.2d at 411, n. 15. However, in Check, the court had entered an interlocutory summary judgment, and then made it final by a severance of that judgment from the remainder of the case; the second order, signed eleven days later, specifically referred to the earlier severance order. 758 S.W.2d at 755. Thus, there may have been some indication in the record that the trial court intended the second order to be the final judgment in the case.

      . Notably, Quanaim did not take the position that the court’s May 18 order was a modification, reformation or correction of the May 11 order in response to Frasco’s motion to dismiss or in appellant’s brief. Quanaim took this position for the first time when the matter was raised in oral argument to this court. The May 18 order does not purport to vacate or supersede the May 11 order — it does not even mention it. Furthermore, there is nothing in the record to suggest that either the trial court or the parties viewed the May 11 order as superseded by the May 18 order.

      . Quanaim acknowledges in his brief:
      "It is impossible to tell from the record whether [the trial court], intended to vacate and supersede the May 11 order by signing the May 18 order or whether [the trial court] intended the May 18 order to merely supplement the May 11 order.”

      . See Tex.R. Civ. P. 301.

      . Although the amicus curiae argues that “the last order should be held to have modified or reformed the previous two orders, which combined to form an implied final judgment,” it cites no authority to support this notion nor does it endeavor to harmonize such a holding with the “one final judgment” rule.

      . Interlocutory orders become final when the court disposes of all other parties and claims. See Woosley, 925 S.W.2d at 86.

      . In its appellate brief, Frasco, Inc. argues that proof attached to its second motion for summary judgment establishes as a matter of law that it had no control over the premises where Quanaim was injured. Frasco, Inc. contends that it was "required by [the hotel] to set up in the hallway” and Quanaim cannot claim otherwise because he judicially admitted this fact in a federal court lawsuit Qua-naim brought against the owner of the Stouf-fer Renaissance Hotel (CTF Hotel Holdings, Inc.) and his co-employees (Jerry Phelps, Rick Hall and Gary Baumann) in February 1996. However, because the pleadings on which Frasco, Inc. relies were filed in "a different proceeding, involving different parties, those pleadings are not judicial admissions in this suit.” Cruz v. Liberty Mut. Ins. Co., 853 S.W.2d 714, 717 (Tex.App.—Texarkana), rev’d on other grounds, 883 S.W.2d 164 (Tex.1993). As such, the admissions Quanaim made in his federal lawsuit are merely admissible against him at trial on the issue of his credibility and are not conclusive against him for the purpose of summary judgment.

      . In his federal suit, filed pro se, Quanaim alleged that he "was terminated wrongfully ... because [he] filed ... for workman compensation benefits ...” "[Quanaim] was fired for filing an accident report ... for a work related injury ...” "Due to management negligence, there were violations of safety and health regulations in the Stouffer Renaissance .... While preparing and serving the food, the caterers regularly spilled grease and food on the floors and in the hallways, which they neglected to clean. This situation created dangerous working conditions ... On several occasions, [Quanaim] warned [his] immediate supervisors Gary Baumann and Rick Hall of the dangers presented, and asked them to move the caterers to the banquet kitchen to prevent an accident and to enforce health regulations. They consistently refused to do so. On July 30, 1995, [Quanaim] suffered injuries because one of these caterers prepared and dished out his food on the floor in the hallway behind the Rayburn and Greenway rooms ... [Quanaim’s] injuries could have been prevented if [his] supervisors and General Manager Jerry Phelps had paid attention to [his] warnings.”


source: Caselaw Access Project

author: DAVID L. RICHARDS, Justice.

license: Public Domain

text:
    DENTON COUNTY, Texas, Appellant, v. Collette JOHNSON, Appellee.
    No. 2-99-233-CV.
    Court of Appeals of Texas, Fort Worth.
    March 16, 2000.
    Rehearing Overruled April 20, 2000.

      Morris & Morris, Donna R. Morris, Flower Mound, for Appellant.
    Rikki M. Rutchik, Dallas, for Appellee.
    PANEL B: DAY, LIVINGSTON, and RICHARDS, JJ.
   OPINION

DAVID L. RICHARDS, Justice.

Introduction

Denton County (the “County”) brings this interlocutory appeal from the trial court’s order denying its motion for summary judgment. In May of 1996, Collette Johnson (“Johnson”) filed a workers’ compensation retaliation claim against the County after its Chief Deputy Sheriff, Charles Flemming (“Flemming”), dismissed Johnson based on the recommendation of Johnson’s supervisor, Captain Betty Chancellor (“Chancellor”). The County pleaded official immunity through its employees as an affirmative defense, and filed its motion for summary judgment claiming that Flemming was entitled to official immunity. The trial court denied the County’s motion. In a single point on appeal, the County argues the trial court erred in denying its motion for summary judgment based on official immunity. Because official immunity is not available as an affirmative defense to a workers’ compensation retaliation claim, we affirm the trial court’s judgment.

Factual Background

In June 1995, Johnson was a detention officer with the Denton County Sheriffs Department assigned to booking at the county jail. Chancellor was the booking supervisor, and Richard Garcia (“Garcia”) was Johnson’s immediate supervisor. Johnson had a history of back problems resulting from a car accident in 1994 and requested Chancellor to transfer her to a different position, claiming she was unable to do “pat-down” searches of inmates because of her condition. Chancellor denied Johnson’s request and instructed her to refrain from performing pat-down searches.

On June 24, 1995, Johnson was involved in an altercation with an inmate and rein-jured her back. Johnson did not return to work on June 26 and subsequently filed a workers’ compensation claim. Johnson was advised by the County Loss Control Administrator to keep her supervisors apprised of her availability status by calling in at intervals “deemed necessary by her supervisors.” Chancellor instructed Johnson to report her availability to Garcia or herself every other day. Johnson initially reported to Garcia that she would be unavailable for work for at least three weeks. On August 8, she delivered a note from her doctor excusing her from her duties until August 28.

During the time she was on workers’ compensation leave, Johnson made repeated phone calls to the Sheriffs Department but did not regularly contact Chancellor or Garcia directly. Chancellor recommended Johnson’s termination to Flemming based on her failure to report. Chancellor also informed Flemming that Johnson’s absence was causing staffing problems and that she wanted to fill her position with a new trainee. Prior to her dismissal, Garcia had given Johnson a favorable evaluation but also noted that she needed to improve her attendancé and refrain from arguing with her supervisors concerning certain job duties.

Based on Chancellor’s recommendation, Flemming terminated Johnson while she was still on workers’ compensation leave citing “Abandonment of Duties” as the reason for her discharge. Garcia, Flem-ming, and the Denton County Sheriff, Weldon Lucas, each testified by affidavit that the safety of jail inmates and personnel is dependant upon adequate staffing requiring supervisors to know the status of all employees. •

Procedural Background

■ On May 6, 1996, Johnson filed suit against the County asserting causes of action for: 1) employment discrimination in violation of Title VII of the Civil Rights Act; 2) breach of contract; 3) breach of an implied covenant of good faith and fair dealing; 4) wrongful discharge; 5) intentional infliction of emotional distress; 6) fraud; and 7) retaliation for filing a workers’ compensation claim under section 451.001 of the Texas Labor Code. The County removed the case to Federal Court where both parties stipulated to dismissal with prejudice of all but the workers’ compensation retaliation claim, and the case was remanded back to the state court. On April 20,1998, the case was tried to a jury. A verdict could not be reached, and the judge granted a mistrial. On May 27, 1999, the County amended its answer to affirmatively assert the official immunity of its employees on its behalf. On June 9, 1999, the County filed a motion for summary judgment based on official immunity, which the trial court denied, and this appeal followed.

Complaint on Appeal

The County contends that because Flemming was exercising his discretionary duty to fire Johnson in good faith and within the scope of his authority, he is entitled to official immunity from suit arising out of his action. See Tarrant County v. Dobbins, 919 S.W.2d 877, 881 (Tex.App.—Fort Worth 1996, writ denied) (citing City of Lancaster v. Chambers, 883 S.W.2d 650, 653 (Tex.1994)). The County argues that it is entitled to assert Flem-ming’s official immunity on its own behalf. See Harris County v. Louvier, 956 S.W.2d 106, 110 n. 8 (Tex.App.—Houston [14th Dist.] 1997, no pet.).

Standard of Review

In a summary judgment case the issue on appeal is whether the movant met its summary judgment burden by establishing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. See Tex.R. Civ. P. 166a(c); Calvillo v. Gonzalez, 922 S.W.2d 928, 929 (Tex.1996); Honhorst v. University of North Texas, 983 S.W.2d 872, 874 (Tex.App.—Fort Worth 1998, no pet.). The burden of proof is on the mov-ant, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. See Friendswood Dev. Co. v. McDade + Co., 926 S.W.2d 280, 282 (Tex.1996); Honhorst, 983 S.W.2d at 874.

A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all the elements of the affirmative defense. See Friendswood Dev. Co., 926 S.W.2d at 282; Honhorst, 983 S.W.2d at 874. To conclusively prove all of the elements of the affirmative defense, the movant must present summary judgment evidence that establishes each element of the affirmative defense as a matter of law. See Ryland Group, Inc., v. Hood, 924 S.W.2d 120, 121 (Tex.1996); Honhorst, 983 S.W.2d at 874.

Law

In 1973, the legislature enacted the Political Subdivisions Law to require governmental entities to provide workers’ compensation benefits to their employees and waived governmental immunity for such claims. See City of La Porte v. Barfield, 898 S.W.2d 288, 293 (Tex.1996). The legislature amended the Political Subdivisions Law in 1981 to “adopt” the Anti-Retaliation Law. See id. at 295.

Under the Anti-Retaliation Law, “a person” may not discharge or in any other manner discriminate against an employee because the employee has filed a workers’ compensation claim in good faith. See Tex. Lab.Code Ann. § 451.001(1) (Vernon 1996). The remedy for retaliation includes reasonable damages resulting to the employee, reinstatement to the former position of employment, and injunctive relief. See id. §§ 451.002 — .003. To prevail on an anti-retaliation claim, the plaintiff must establish that but for the filing of the claim, the discharge would not have occurred when it did. See Continental Coffee Prod. v. Cazarez, 937 S.W.2d 444, 450 (Tex.1996); McIntyre v. Lockheed Corp., 970 S.W.2d 695, 697 (Tex.App.—Fort Worth 1998, no pet.). As originally enacted, the adoption of the Anti-Retaliation Law did not express a clear intent to waive sovereign immunity. See Barfield, 898 S.W.2d at 293.

The legislature amended the Political Subdivisions Law again in 1989, requiring an election of remedies between the Anti-Retaliation Law and the Whistleblower Act, for which the Legislature had clearly waived immunity. See id. at 297-98. The Texas Supreme Court determined in City of LaPorte v. Barfield that the requirement of an election expressed a clear intent by the Legislature to waive the sovereign immunity of political subdivisions because “it would make little sense to require an employee to elect between an action barred by immunity and one not barred.” Id. at 298.

In this case the County asserts official immunity, not sovereign immunity in bar of Johnson’s claims. Official immunity and sovereign immunity are distinguishable. Official immunity protects individual officials from liability while sovereign immunity protects governmental entities. See DeWitt v. Harris County, 904 S.W.2d 650, 653 (Tex.1995). Although the Texas Supreme Court held in Barfield that sovereign immunity was waived under the Political Subdivisions Law, it has never addressed whether a. governmental entity can assert the official immunity of its employees to a workers’ compensation retaliation claim.

In support of its argument that the County is entitled to claim Flemming’s official immunity, the County cites dicta from the Fourteenth District Court of Appeals in Harris County v. Louvier, where the court noted that Harris County appeared to be immune from liability in that case for the discharge of an employee by the District Clerk because the clerk was entitled to official immunity. See Louvier, 956 S.W.2d at 110 n. 8. The Fourteenth District observed the Texas Supreme Court’s opinion in DeWitt v. Harris County, where it held that applicability of the Texas Tort Claims Act’s limited waiver of sovereign immunity may depend on whether the governmental employee is entitled to official immunity. See DeWitt, 904

S.W.2d at 653; see also City of Beverly Hills v. Guevara, 904 S.W.2d 655, 656 (Tex.1995) (holding official immunity may be asserted by a government unit under the Texas Tort Claims Act even if the governmental employee is not named as a party to the suit). The Fourteenth District surmised that even though DeWitt was decided under the Texas Tort Claims Act, the rationale was equally applicable in a workers’ compensation retaliation suit. See Louvier, 956 S.W.2d at 110 n. 8. We disagree.

Under the Texas Tort Claims Act, a governmental unit is liable for property damage, personal injury, or wrongful death caused by an employee acting within the scope of his employment if it arose from the operation of a motor-vehicle or motor driven equipment, and the employee would be personally liable to the claimant according to Texas law. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.021(1) (Vernon 1997). Similarly, a governmental unit is hable for personal injury or death caused by a condition or use of tangible personal or real property if the governmental unit would, were it a private person, be liable to the claimant according to Texas law. See id. § 101.021(2). The Texas Supreme Court in DeWitt construed the italicized portion of both of these provisions to allow a county to assert the official immunity of its employees for their negligence when the basis of the county’s liability is respondeat superior because that liability is derivative or indirect. See De-Witt, 904 S.W.2d at 653-54. Thus, the court observed “[i]t would serve no legislative purpose to declare a waiver of sovereign immunity when the basis of liability is respondeat superior and the acts of the official are covered by official immunity.” See DeWitt, 904 S.W.2d at 654 (emphasis added).

In Honhorst v. University of North Texas, we held that use of the word “person” in the Anti-Retaliation Law refers only to employers. See 983 S.W.2d at 875-76. Our holding was based in part on the Texas Supreme Court’s decision in Texas Mexican Ry. Co. v. Bouchet, 963 S.W.2d 52 (Tex.1998). See Honhorst, 983 S.W.2d at 875. The issue in Bouchet was whether a prospective employer could be held liable for acts that would be violative of the Anti-Retaliation Law. See Bouchet, 963 S.W.2d at 56-57. The Texas Supreme Court held that the Anti-Retaliation law is “intended to apply only to employees and employers who act[ed] under the Texas Workers’ Compensation Act.” Id. In noting the court’s holding in Bouchet, we held that the Anti-Retaliation Law does not create a cause of action against the individual supervisor of an employer. See Honhorst, 983 S.W.2d at 875-76 (citing Stewart v. Littlefield, 982 S.W.2d 133, 136-37 (Tex.App.—Houston [1st Dist.] 1998, no pet.) (holding “person” means “employer” and no cause of action existed against individual supervisor)). But see City of Palestine v. Ramirez, 925 S.W.2d 250, 252-53 (Tex.App.—Tyler 1996) (allowing chief of police to assert official immunity to suit under Anti-Retaliation Law, prior to Bouchet). In this case, Flemming was not Johnson’s “employer” but only a supervisor of the County, which was Johnson’s employer. As such, no cause of action could exist against Flemming under the Anti-Retaliation Law.

Generally, government employees are entitled to official immunity from suit arising from the performance of their (1) discretionary duties in (2) good faith as long as they are (3) acting within the scope of their authority. See Chambers, 883 S.W.2d at 653 (emphasis added). Official immunity is an affirmative defense. See id. An “affirmative defense” is a plea in bar or a defense in avoidance, rather than a defense in denial. See Gorman v. Life Ins. Co. of North America, 811 S.W.2d 542, 546 (Tex.), cert. denied, 502 U.S. 824, 112 S.Ct. 88, 116 L.Ed.2d 60 (1991). The nature of an affirmative defense presupposes a prima facie claim. See id; see also 58 Tex. JuR.3d Pleading § 197 (1996) (citing authorities therein). It follows that without a claim for which suit may be brought, there is no affirmative defense to assert. Because no cause of action existed under the Anti-Retaliation Law against Flemming, Flemming could not assert official immunity as an affirmative defense. Therefore, there was no defense that the County could claim.

The County further argues that section 504.002(c) of the Political Subdivision Law does not authorize a cause of action or damages against a political subdivision beyond the actions and damages authorized by the Texas Tort Claims Act. See Tex. Lab.Code Ann. § 504.002(c) (Vernon 1996). It contends that section 101.026 of the Texas Tort Claims Act preserves and codifies an individual’s official immunity, therefore, it may be asserted as an affirmative defense through the Political Subdivision Act. See Tex. Civ. PRAC. & Rem.Code Ann. § 101.026 (Vernon 1997).

The Texas Supreme Court has indicated that section 504.002(c) should not be read too literally, holding that while the Political Subdivisions Act waives immunity from liability for actual damages, as well as reinstatement for back pay, subject to the limitations of the Tort Claims Act, it is not subject to the requirement of the Tort Claims Act that the injury arise from the operation or use of a motor vehicle or the condition or use of tangible personal or real property. See Kuhl v. City of Garland, 910 S.W.2d 929, 931 (Tex.1995). The Political Subdivision Act waives sovereign immunity from suit. See id. We have already determined that the Anti-Retaliation Law does not create a cause of action against which official immunity can be asserted. Therefore, official immunity against a workers’ compensation retaliation claim is not preserved under the Texas Tort Claims Act.

Because official immunity was not available to Flemming as an affirmative defense, we overrule the county’s contention that it was entitled to assert Flemming’s official immunity on its own behalf. Because the County did not prove that it was entitled to judgment as a matter of law, the trial court' committed no error and properly denied the County’s motion for summary judgment. Accordingly, we affirm the trial court’s judgment.

      . A person may appeal from an interlocutory order of a district court, county court at law, or county court that denies a motion for summary judgment that is based on an assertion of immunity by an individual who is an officer or employee of the state or a political subdivision of the state. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(5) (Vernon Supp.2000).

      . Act of May 10, 1973, 63 Leg., R.S., ch. 88, § 17, 1973 Tex. Gen. Laws 187, 198-200.

      . Act of May 23, 1981, 67 th Leg., R.S., ch. 569, § 1, 1981 Tex. Gen. Laws 2311, 2311-12, amended by Act of May 24, 1983, 68 th Leg., R.S., ch. 565, § 4, 1983 Tex. Gen. Laws 3260, 3264-65, amended by Act of December 12, 1989, 71 st Leg., C.S., ch. 1, § 15.47, 1989 Tex. Gen. Laws 1, 113, repealed and recodified by Act of May 12, 1993, 73 rd Leg., R.S., ch. 269, §§ 1, 5, 1993 Tex. Gen. Laws 987, 1250, 1273 (current version at Tex. Lab.Code Ann. § 504.002 (Vernon 1996)).

      . Act of April 22, 1971, 62 nd Leg., R.S., ch. 115, 1971 Tex. Gen. Laws 884, 884-85, repealed and recodified by Act of May 12, 1993, 73 «1 Leg., R.S., ch. 269, §§ 1, 5, 1993 Tex. Gen. Laws 987, 1250, 1273 (current version at Tex. Lab.Code Ann. § 504.002 (Vernon 1996)).

      . Tex. Civ. Prac. & Rem.Code Ann. §§ 101.001— 101.109 (Vernon 1997).

      . We also note that Louvier was decided under the Anti-Retaliation Law. as it applied before the Political Subdivisions Act was amended to clearly waive sovereign immunity for political subdivisions. . See Louvier, 956 S.W.2d at 109.

      . A governmental unit includes a political subdivision of the State. See Tex. Civ. Prac. & Rem.Code Ann. § 101.001(2)(B) (Vernon Supp. 2000).

      . While Bouchet was decided under article 8307c of the Texas Revised Civil Statutes Annotated, its recodification as Texas Labor Code section 451.001 — .003 was not substantive and, therefore, the Texas Supreme Court held that it would reach the same result if decided under the Labor Code as recodified. See Bouchet, 963 S.W.2d at 56-57 (citing Barfield, 898 S.W.2d at 293).


author: LEE YEAKEL, Justice.

text:
    THE BOON INSURANCE AGENCY, INC., Individually and on Behalf of All Others Similarly Situated, Appellant, v. AMERICAN AIRLINES, INC.; Continental Airlines, Inc.; Delta Airlines, Inc.; and America West Airlines, Inc., Appellees.
    No. 03-99-00089-CV.
    Court of Appeals of Texas, Austin.
    March 30, 2000.
    Rehearing Overruled May 25, 2000.

      J. Bruce Bennett, Baskin, Bennett & Komkov, L.L.P., Austin, Leonard B. Simon, Milberg, Weiss, Bershad, Hynes & Lerach, San Diego, CA, for Appellant.
    Steve McConnico, Scott, Douglass & McConnico, L.L.P., Austin, for Appellees.
    Before Justices B.A. SMITH, YEAKEL and PATTERSON.
   LEE YEAKEL, Justice.

Appellant The Boon Insurance Agency, Inc. ("Boon”) appeals the district court's summary judgment in favor of appellees, American Airlines, Inc.; Continental Airlines, Inc.; Delta Airlines, Inc.; and America West Airlines, Inc. (collectively, the “Airlines”). Their dispute arises from certain restrictions on economy-class airline tickets that Boon purchased from the Airlines. Boon brought a class-action suit against the Airlines in district court charging that a reissue fee and other penalties imposed by the Airlines when a holder of an economy-class ticket fails to travel according to the ticket’s original terms constitute illegal forfeitures and penalties prohibited by state law. The Airlines moved for summary judgment on the sole ground that Boon’s claim is preempted by section 41713(b)(1) of the Airline Deregulation Act of 1978 (the “Act”). The district court granted the Airlines’ motion. Boon complains on appeal that: (1) the district court erred in requiring Boon to prove its claims were not preempted by the Act; (2) summary judgment was improper because (a) the Act does not preempt claims that involve common law breach-of-contract claims, and (b) genuine issues of material fact exist; and (3) the district court erred by denying Boon’s discovery request. Because we find that the district court did not misplace the burden of proof, federal law preempts Boon’s claim, there are no genuine issues of material fact, and Boon’s discovery request was not improperly denied, we will affirm the district court’s summary judgment. ■ -

BACKGROUND

The Airlines stipulated that for the purpose of summary judgment, the facts in Boon’s first-amended class-action petition are true. Our facts, therefore, are taken from the pleadings before the district court.

Between 1996 and 1997, Boon purchased economy-class airline tickets from each of the Airlines. A ticket constitutes a “contract of carriage” between the passenger and the airline, whereby the airline agrees to provide transportation between certain locations on specific dates in return for the purchase price of the ticket and the passenger’s agreeing to travel according to the ticket’s terms. An economy-class ticket is available for a lower price because it is subject to conditions that a full-price, fully refundable ticket is not, including fees associated with changing the terms of travel.

If a passenger with an economy-class ticket does not fly as ticketed and wishes to rebook a flight, the passenger may apply the original fare toward a new ticket for travel within a specified period of time. However, the passenger must also pay a “reissue fee” ranging from fifty to seventy-five dollars. If the original ticket is not used or reissued, the passenger forfeits the entire fare. At issue in this case is the potential forfeiture of the full ticket price and the reissue fee imposed upon a passenger who fails to travel according to the ticket’s terms. Boon claims that the reissue fee and the retention of the fare amount to illegal forfeitures and penalties and as such are unenforceable under Texas law. See Phillips v. Phillips, 820 S.W.2d 785, 789 (Tex.1991).

The Airlines moved for summary judgment on the ground that Boon’s claims were preempted by the Act, which specifically prohibits a State from enforcing a law or regulation that relates to the price, route, or service of an air carrier. See Act § 41713(b)(1). The district court granted the Airlines’ motion, implicitly finding that Boon’s claim was related to the Airlines’ prices and therefore preempted by the Act.

DISCUSSION

Boon appeals from a summary judgment in favor of the Airlines. The propriety of summary judgment is a question of law, and we review the trial court’s decision de novo. See Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). The standards for reviewing a motion for summary judgment are well established: (1) the movant for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law; (2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true; and (3) every reasonable inference must be indulged in favor of the nonmovant and any doubts resolved in its favor. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). The function of summary judgment is not to deprive litigants of the right to trial by jury but to eliminate patently unmeritorious claims and defenses. See Swilley v. Hughes, 488 S.W.2d 64, 68 (Tex.1972).

Burden

The burden of demonstrating preemption is on the party who asserts it. See Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 255, 104 S.Ct. 615, 78 L.Ed.2d 443 (1984). By its second issue, Boon argues that the preemption burden and therefore the summary-judgment burden was that of the Airlines, and the district court erred by improperly shifting these burdens to Boon. Boon’s argument is based solely on a statement in a brief filed by the Airlines in the district court that stated that Boon had “a difficult burden” in demonstrating that its claims were not related to the price, route, or service of the air carrier, and that it had “not met this burden.” To the extent that this statement urged the district court to place the burden on Boon, it is an incorrect statement of the law.

Boon correctly states that to prevail on their summary-judgment motion, the Airlines were required to prove that Boon’s claims were preempted by the Act. See id. Stated another way, we must address whether the Airlines established as a matter of law that section 41713(b)(1) of the Act preempts the claims asserted in Boon’s suit. See State v. Foley, 950 S.W.2d 781, 784 (Tex.App.—Austin 1997, no writ). However, we find no evidence in the record that the district court misplaced the Airlines’ burden. The district court’s judgment states simply, “The Court, after examining the pleadings and the summary judgment evidence and hearing the arguments of counsel, determines that [the Airlines] are entitled to summary judgment on all of the claims raised by [Boon] in this lawsuit.” The Airlines’ arguably incorrect statement in their district-court brief in no way demonstrates an improper action by the district court. We therefore override Boon’s second issue.

Preemption

In 1978, Congress enacted the Act, which largely deregulated domestic air transport. See American Airlines, Inc. v. Wolens, 513 U.S. 219, 222,115 S.Ct. 817, 130 L.Ed.2d 715 (1995). At the heart of the dispute before us is the Act’s preemption clause. Congress intended that the Act preempt state law “to ensure that the States would not undo federal deregulation with regulation of their own.” Morales v. Trans World Airlines, Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). The preemption clause states, in relevant part, “A State ... may not enact or .enforce a law, regulation, or other provision having the force and effect of law related to price, route, or service of an air carrier.....” Act § 41713(b)(1).

In Morales, the United States Supreme Court considered Travel Industry Enforcement Guidelines, promulgated by the National Association of Attorneys General (“NAAG”). See 504 U.S. at 374,112 S.Ct. 2031. The NAAG guidelines purported to govern, inter alia, the content and format of airline-fare advertising. See id. at 393-418,112 S.Ct. 2031. Several states, including Texas, attempted to enforce the NAAG guidelines to stop allegedly deceptive airline advertisements. See id. at 379, 112 S.Ct. 2031. To determine whether the guidelines were preempted by the Act, the Court whs initially faced with delineating the ordinary meaning of the term “related to.” See id. at 383, 112 S.Ct. 2031. The Court adopted the same meaning found in other preemption statutes: “having a connection with, or reference to, ¿Mine ‘rates, routes, or services.’ ” Id. at 384, 112 S.Ct. 2031. The “related to” language was intended to be broad in order to express an expansive preemptive purpose. See id. at 383, 112 S.Ct. 2031. The' Court concluded that the states’ initiative related to airline rates, routes, or services and therefore found that the fare-advertising provisions of the NAAG guidelines were preempted by the Act. See id. at 391, 112 S.Ct. 2031. The Court also noted that the Act does not preempt all enforcement of state law against airlines. The Court recognized that some state actions might affect airlines in “ ‘too tenuous, remote, or peripheral a manner’ to have pre-emptive effect” but noted that the case before it did not present a “borderline question” and expressed no view about where it would be appropriate “to draw the line.” Id. at 390, 112 S.Ct. 2031 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100 n. 21, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983)).

Wolens involved a dispute between American Airlines and persons participating in its frequent-flyer program. See 513 U.S. at 222, 115 S.Ct. 817. Individuals enrolled in the program earned mileage credits when they flew American and could exchange those credits for tickets on subsequent flights or upgrades to a higher class of service. See id. at 224, 115 S.Ct. 817. Although American had reserved the right to change the terms and conditions of the program, when the airline changed the program, suit was filed challenging the retroactive application of the modifications. See id. at 225, 115 S.Ct. 817. The program’s participants claimed that American’s actions violated the Illinois Consumer Fraud and Deceptive Business Practices Act and constituted a breach of contract. See id.

The Supreme Court held that while the enforcement of the Illinois Act was preempted by the Act, the passengers’ breach-of-contract claim was not so preempted. See id. at 228, 115 S.Ct. 817. The terms and conditions the airlines offered and the passengers accepted were privately ordered obligations and did not amount to a state’s enactment or enforcement of any law, rule, regulation, standard, or other provision having the effect of law within the meaning of the Act. See id. at 229, 115 S.Ct. 817. The Court found that the Act does not prohibit state-court adjudication of routine breach-of-contract claims, so long as the court confines its decision to the parties’ bargain, with no enlargement or enhancement based on state law or policies external to the agreement. See id. at 232, 115 S.Ct. 817. The Court also noted that since contract law is not at its core “diverse, nonuniform, and confusing” but is similar from jurisdiction to jurisdiction, it is unlikely that there will be a “large risk of nonuniform adjudication” of what constitutes the “agreement” of the parties to a contract. See id. at 826, 115 S.Ct. 817.

The Texas Supreme Court discussed Wolens and Morales in Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274, 278-84 (Tex.1996). Kiefer found that not only do common law breach-of-contract claims fall outside the scope of the Act’s preemption, but so do common law negligence claims. See 920 S.W.2d at 278-84. With respect to breach-of-contract claims, Kiefer adhered to the reasoning in Wolens, observing that the Act will prevent states from imposing their own substantive standards with respect to rates, routes, or services but will not stop states from affording relief to a party who claims and proves that an airline dishonored a term to which the airline itself agreed. See id. at 280. The court reiterated the language of Wolens, stating that in breach-of-contract claims, courts are confined to the parties’ bargain. See id. The Kiefer court concluded that the .Supreme Court of the United States has placed a “very strict limitation on permissible contract claims.” See id. at 281.

In this framework, we examine Boon’s claim to determine whether it is preempted by the Act. If the claim relates to the “price, route, or service of an air carrier,” it is preempted. Boon argues that its claim-is not related to price, since state actions that have a tenuous, remote, or peripheral effect on air fares are not preempted. See Morales, 504 U.S. at 390, 112 S.Ct. 2031. While Boon also points out that the Act’s “related to” language should not be stretched to indeterminacy or “for all practical purposes preemption would never run its course,” it is clear from Morales, Wolens, and Kiefer that although the “related to” language is broad, it is not overly so and is meant to encompass claims like Boon’s. This Court, has recently recognized that by the Act, Congress sought to ensure effective airline deregulation by enacting “a very broad and sweeping preemption to eliminate the possibility of any conflicting state regulation.” City Public Serv. Bd. v. Public Util. Comm’n, 9 S.W.3d 868, 876-77 (Tex.App.—Austin 2000, pet. filed). We hold that Boon’s claim is “related to a price ... of an air carrier” and is thus within the Act’s preemption.

Boon maintains that Kiefer allows any contract-related action under the Act if there is little risk of nonuniform adjudication among the states. The Kiefer court examined Wolens, emphasizing that since contract law is uniform, enforcing contracts is unlikely to lead to nonuniform adjudication of contract claims based upon state law. See Kiefer, 920 S.W.2d at 280 (citing Wolens, 513 U.S. at 233 n. 8, 115 5.Ct. 817). Boon reads Kiefer and Wolens incorrectly. Neither Kiefer nor Wolens hold that every contract-related claim may be brought; only breach-of-contract claims concerning the terms of the parties’ agreement may be adjudicated in state court since contract law is not at its core diverse, nonuniform, or confusing. See Wolens, 513 U.S. at 233 n. 8, 115 S.Ct. 817; Kiefer, 920 S.W.2d at 280. The Wolens court specifically noted that it saw no significant risk of state-to-state nonuniform adjudication of standard airline-prepared agreements. See Wolens, 513 U.S. at 233 n. 8, 115 S.Ct. 817. Kiefer does not, and in the face of the Act could not, expand the scope of contract claims that may be brought before state courts.

Boon argues that under Kiefer and Wolens, its breach-of-contract claim is not preempted by the Act. It reminds this Court that although the Act is broad, it is not boundless. See Kiefer, 920 S.W.2d at 279. We agree that common law breach-of-contract and negligence claims are not preempted by the statute, but Boon has not brought such a claim.

“A claim for a breach of contract requires proof that (1) a binding contract existed; (2) defendants breached the contract; and (3) plaintiffs suffered damages caused by the defendants’ alleged breach.” East Tex. Med. Center Cancer Inst. v. Anderson, 991 S.W.2d 55, 62 (Tex.App—Tyler 1998, pet. denied); Ryan v. Superior Oil Co., 813 S.W.2d 594, 596 (Tex.App.— Houston [14th Dist.] 1991, writ denied).

It is undisputed that in each instance of an economy-class ticket purchase by Boon a binding contract, a contract of carriage, was created between Boon and the airline. Each contract included the authorization of a surcharge if the ticket was changed. Boon does not look to enforce the contract as written but instead seeks to modify the terms of the contract itself by relying on state law. This Court “is confined, in breach of contract actions, to the parties’ bargain, with no enlargement or enhancement based on state law or policies external to the agreement.” Wolens, 513 U.S. at 223, 115 S.Ct. 817. If we were to adjudicate Boon’s claim, we would be applying state policy and law to determine the propriety of the reissue fee. Such application of state law is preempted by the Act. See id. at 222, 115 S.Ct. 817. Boon’s assertion of its claim as one of breach of contract is an attempt to avoid the preemption clause and defeat the Act’s intent. Boon does not seek the benefit of its bargain, which calls for a reissue fee, but rather seeks to invalidate its bargain by having this Court declare that the reissue fee is a penalty clause. The Act prevents us from doing so. To the extent that Boon complains that its claims are not preempted by the Act, its first issue is overruled.

Genuine Issue of Material Fact

Boon’s first issue also asserts that by providing uncontroverted expert testimony demonstrating that reissue fees bear no relation to ticket prices and that all states outlaw penalty clauses, Boon has raised genuine issues of material fact. To support its claim, Boon relies on the affidavits of David 0. Stamey, a former vice-president of Continental Airlines, and Joseph M. Perillo, a law professor.

As a general rule, summary judgment is improper where an expert’s uncontroverted testimony supports the nonmoving party’s case. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). Although both Stamey’s and Perillo’s affidavits are uncontroverted, they do not support Boon’s proposition that its claim escapes preemption. “[C]ourts are charged with interpreting deregulation statutes to determine whether Congress intended to preempt whatever state action is offensive to the plaintiff in a given case.” Foley, 950 S.W.2d at 786 (citing New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 658-54, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995); Morales, 504 U.S. at 383, 112 S.Ct. 2031). We therefore determine the existence of federal preemption as a matter of law. See id. at 784.

Stamey’s affidavit states that the reissue fee is unrelated to airline ticket prices since it does not fluctuate or change according to the ticket price. In other words, the reissue fee is constant and has no relation to the actual price of the ticket. Boon argues therefore it should be able to bring its claim. However, even if the reissue fee remains constant, it has the effect of raising the price of the ticket. Boon’s claim relates to that price, ie., the Airlines’ charges for an economy-class ticket. Although that price changed when Boon changed its travel itinerary, Boon’s claim remains related to price. See Wolens, 513 U.S. at 226, 115 S.Ct. 817 (finding that plaintiffs claim involving frequent-filer miles relates to airline’s charges in form of mileage credits for free tickets and upgrades).

Perillo’s affidavit states that all jurisdictions in the United States hold that penalty clauses are illegal and void. As such, if the reissue fee were deemed a penalty, it would be illegal in any of the states. Boon argues therefore that adjudication of its claim would not involve any application of state law or policy. Although the states may be uniform in them penalty-clause jurisprudence, it does not follow that Boon’s claims can be adjudicated without applying state law or policy to the Airlines’ economy-class ticket prices.

We overrule the remainder of Boon’s first issue.

Discovery

By its third issue, Boon contends that the district court committed error when he declined “repeated” requests for pretrial discovery. Boon argues that the discovery was needed to determine whether the “defendant’s fare forfeitures and reissue penalties ‘relate to’ their prices, routes or services.” Specifically, Boon requested information on the development, implementation, and calculation of the reissue fees; the actual costs of the itinerary changes for which the reissue fees were assessed; and the total revenue generated from these fees.

The record reflects that the district court quashed one motion for oral deposition. We review the trial court’s actions allowing or denying discovery for an abuse of discretion. See TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner, or without reference to guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). This Court may not reverse for abuse of discretion merely because we disagree with the decision of the trial court. See Downer, 701 S.W.2d at 242.

Here, the district court did not improperly deny Boon’s request for discovery. The information Boon sought would not have precluded summary judgment. As such, the denial of the discovery request by the district court in no way prevented Boon from obtaining evidence that would have allowed it to defeat summary judgment. The district court did not abuse his discretion, and therefore, we overrule Boon’s third issue.

CONCLUSION

Having overruled all of Boon’s issues, we affirm the district court’s judgment.

      . See Tex.R. Civ. P. 42.

      . Congress enacted the Act in 1978. See Airline Deregulation Act of 1978, Pub.L. No. 95-504, 92 Stat. 1705 (1978). The Act contained a preemption clause that read in relevant part: "[N]o State ... shall enact or enforce any law, rule, regulation, standard or other provision having the force and effect of law relating to rates, routes, or services of any air carrier....” Pub.L. No. 95-504, § 4(a), 92 Stat. 1705, 1707-08 (1978) (codified at 49 U.S.C.App. § 1305(a)(1)) (amended and reco-dified 1994), Congress recodified and revised mány transportation laws, including the Act, in 1994 and revised the preemption clause to read: "[A] State ... may not enforce a law, regulation, or other provision having the force and effect of law related to a price, route or service of an air carrier....” Act of July 5, 1994, Pub.L. No. 103-272, § 1(a), 108 Stat. 745, 1143 (1994) (codified at 49 U.S.C.A. § 41713(b)(1) (West Supp.1999)). Congress intended no substantive change by its 1994 revisions. See id. at 745.

      . As described in Boon's pleadings to the district court, "Economy-class tickets are subject to travel restrictions which customarily require: a) tickets to be purchased a specified number of days prior to departure; b) travel be completed by a specified deadline; c) minimum and maximum stay requirements; and, d) seat and flight limitations.”

      . See supra note 2. We cite .the current code here for convenience.

      . Specifically, the Court referred to similar "related to” language in the preemption clause of the Employee Retirement Income Security Act of 1974 (ERISA). See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992). Boon argues that since the "relates to” language of ERISA has been more narrowly construed in recent opinions, see California Div. of Labor Standards Enforcement v. Dillingham Constr., N.A., 519 U.S. 316, 323, 117 S.Ct. 832, 136 L.Ed.2d 791 (1997); Hinterlong v. S.P Baldwin, 308 Ill.App.3d 441, 241 Ill.Dec. 860, 720 N.E.2d 315, 320 (1999), the Act language should likewise be more narrowly interpreted. We will adhere to the Supreme Court’s discussion of the Act’s preemption clause and will not extrapolate the later ERISA cases into speculation that the Supreme Court’s holdings in Morales and Wol-ens would be different today.

      . New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 655, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995).

      . In City Public Service Board we contrasted the Act's broad preemption with the relatively limited preemption of the Texas Public Utility Regulatory Act. See City Public Serv. Bd. v. Public Util. Comm’n, 9 S.W.3d 868, 876-77 (Tex.App.—Austin 2000, pet. filed).

      .Other state courts have found similar claims also preempted by the Act. See Leonard v. Northwest Airlines, Inc., 605 N.W.2d 425, 431-32 (Minn.Ct.App.2000); Blackner v. Continental Airlines, Inc., 311 N.J.Super. 10, 709 A.2d 258, 260 (App.Div.1998), cert. denied, 525 U.S. 1142, 119 S.Ct. 1034, 143 L.Ed.2d 42 (1999).

      . Boon contends that if this Court finds that the Act preempts its claim, then it will have no forum in which to seek relief. However, the Department of Transportation retains the authority to investigate unfair and deceptive practices and unfair methods of competition by airlines. See American Airlines, Inc. v. Wolens, 513 U.S. 219, 227 n. 4, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995).