author: RICHARD BARAJAS, Chief Justice.

text:
    YSLETA INDEPENDENT SCHOOL DISTRICT, Appellant, v. Gustavo MONARREZ and Jose Rodriguez, Appellees.
    No. 08-01-00217-CV.
    Court of Appeals of Texas, El Paso.
    Sept. 26, 2002.
    Rehearing Overruled Nov. 14, 2002.

      Steven J. Blanco, Delgado, Acosta, Bra-den & Jones, P.C., El Paso, for appellant.
    John P. Mobbs, El Paso, for appellees.
    Before Panel No. 2 BARAJAS, C.J., McCLURE, and CHEW, JJ.
   OPINION

RICHARD BARAJAS, Chief Justice.

This is an appeal from a jury verdict in favor of Appellees. For the reasons stated, we affirm.

I. SUMMARY OF THE EVIDENCE

Appellees, Gustavo Monarrez (“Monar-rez”) and Jose Rodriguez (“Rodriguez”), were employed by Appellant, Ysleta Independent School District (“the District”), as mechanics in the District’s transportation department. On Friday, March 26, 1999, Monarrez, Rodriguez, and several other employees went to a local VFW hall for drinks after work. Appellees had signed up to work on Saturday. Appellees decided to leave between 10:30 p.m. and 11:30 p.m. Rodriguez was not feeling well after consuming ten to twelve beers and thought he might be late the next morning. He asked Monarrez to punch his time card for him if he was late because their supervisor would get mad if he was tardy.

The next morning Monarrez punched Rodriguez’ time card around 6:30 a.m. Rodriguez did not wake up until 9:30 a.m. and was not feeling well. He called Mon-arrez and told him he would not make it to work and asked him to punch him out. Rodriguez promised that they would talk to their supervisor on Monday and get the matter cleared up.

That Monday, Rodriguez reported to work, but Monarrez did not because his daughter was ill. Rodriguez decided to wait until Monarrez was present to talk to their supervisor, Mr. Romero. The following day, Rodriguez explained what had happened to Romero. Monarrez also spoke with Romero and apologized. Later that day, Appellees were given “counseling sheets,” a form of discipline. On April 16, 1999, Appellees were suspended. On April 28, 1999, Appellees were terminated by letter, which listed the reasons for termination as immorality, insubordination, fraud, failure to comply with Board policies, and reasons constituting good cause.

After learning that at least six other female employees of the District were involved in similar incidents but received less severe discipline, Appellees filed suit alleging that their gender was a motivating factor in the District’s decision to terminate them. Appellees specifically filed suit under Section 21.051 of the Texas Labor Code, which prohibits employment discrimination. The case was tried to a jury and at the close of Appellees’ evidence, the District moved for directed verdict, which was denied. The District re-urged the motion at the close of all of the evidence and before the case was submitted to the jury, and the motion was again denied. The jury returned a verdict in favor of Appellees. The jury awarded Rodriguez lost past and future wages and employee benefits in the amount of $74,000 and mental anguish damages in the amount of $175,000. The jury awarded Monarrez lost past and future wages and employee benefits in the amount of $49,500 and mental anguish damages in the amount of $175,000. In addition, the jury awarded $30,000 in attorneys’ fees. The District filed a Motion for New Trial and a Motion for Judgment Notwithstanding the Verdict. Both motions were denied by the trial court and judgment was entered in favor of Appellees. This appeal follows.

II. DISCUSSION

Appellant presents four issues on appeal. Appellant essentially challenges the legal and factual sufficiency of the evidence: 1) to support a prima facie case that it violated the Texas Commission on Human Rights Act; 2) to prove that its legitimate, nondiscriminatory reasons for its actions were mere pretexts for discrimination; 3) to support the mental anguish damages; and 4) to support the attorneys’ fees awarded. We begin with a discussion of the standard of review.

A. Legal and Factual Insufficiency

In considering a “no evidence” legal insufficiency issue, we consider only the evidence and inferences that tend to support the jury’s findings and disregard all evidence and inferences to the contrary. See Weirich v. Weirich, 833 S.W.2d 942, 945 (Tex.1992); Pool v. Ford Motor Co., 715 S.W.2d 629, 634-35 (Tex.1986); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Texas Tech Univ. Health Sciences Ctr. v. Apodaca, 876 S.W.2d 402, 411-12 (Tex.App.-El Paso 1994, writ denied). If more than a scintilla of evidence supports the questioned finding, the “no evidence” issue fails. See Tseo v. Midland Am. Bank 893 S.W.2d 23, 25 (Tex.App.-El Paso 1994, writ denied); Hallmark v. Hand, 885 S.W.2d 471, 474 (Tex.App.-El Paso 1994, writ denied).

An “insufficient evidence” or factual insufficiency issue involves a finding that is so against the great weight and preponderance of the evidence as to be manifestly wrong. The test for factual insufficiency issues is set forth in In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). In reviewing an issue asserting that a finding is against the great weight and preponderance of the evidence, we must consider all of the evidence, both the evidence which tends to prove the existence of a vital fact, as well as evidence which tends to disprove its existence. It is for the jury to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. See Carrasco v. Goatcher, 623 S.W.2d 769, 772 (Tex.App.-El Paso 1981, no writ). The jury’s finding should be sustained if there is some probative evidence to support it and provided it is not against the great weight and preponderance of the evidence. See id. Thus, we cannot substitute our judgment for that of the fact finder even if we find a fact contrary to that found by the jury. If, however, the verdict is so contrary to the great weight and preponderance of the evidence as to be manifestly unjust, the issue should be sustained.

B. Texas Commission on Human Rights Act

Appellees sued under the Texas Commission on Human Rights Act (“TCHRA”), which prohibits discrimination in employment based on the basis of race, color, disability, religion, sex, national origin, or age. Dillard Dept. Stores, Inc. v. Gonzales, 72 S.W.3d 398, 406 (Tex.App.-El Paso 2002, pet. denied); see also, Tex. Lab.Code Ann. §§ 21.001, 21.051 (Vernon Supp.2002). The TCHRA is modeled after federal civil rights law. NME Hospitals, Inc. v. Rennels, 994 S.W.2d 142, 144 (Tex.1999). One express purpose of the TCHRA is to provide for the execution of the policies of Title VII of the Civil Rights Act of 1964 and its subsequent amendments. Tex. Lab.Code ANN. §§ 21.001(1) (Vernon Supp.2002). The TCHRA purports to correlate “state law with federal law in the area of discrimination in employment.” Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483, 485 (Tex.1991). Thus, in light of the legislature’s express purpose, we look to analogous federal precedent for guidance when interpreting the Texas Act. Rennels, 994 S.W.2d at 144.

Section 21.051 of the Texas Labor Code defines the types of employment discrimination the TCHRA was designed to suppress. Section 21.051 provides:

An employer commits an unlawful employment practice if because of race, color, disability, religion, sex, national origin, or age the employer:
(1) fails or refuses to hire an individual, discharges an individual, or discriminates in any other manner against an individual in connection with compensation or the terms, conditions, or privileges of employment; or
(2) limits, segregates, or classifies an employee or applicant for employment in a manner that would deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee.

Tex. Lab.Code ANN. § 21.051 (Vernon 2002).

In Issue No. One, Appellant challenges the legal and factual sufficiency of the evidence to support a prima facie case that it violated the Texas Commission on Human Rights Act. Specifically, Appellant argues that Appellees failed to present any evidence that they are members of a protected class and that they were either replaced by female employees or that similarly situated female employees were treated more favorably.

Appellant urges this Court to adopt the McDonnell Douglas burden-shifting scheme. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under that framework, a three step process is implemented in which: (1) the plaintiff proves his prima facie case by a preponderance of the evidence; (2) the defendant rebuts the presumption of intentional discrimination arising from the prima facie case by articulating legitimate, non-discriminatory reasons for the challenged action; and (3) the plaintiff counters by offering evidence that the legitimate, non-diseriminatory reasons are really a pretext for discrimination. Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334, 337 (5th Cir.1999) (footnote and citations omitted). However, when a case has been fully tried on its merits, as here, we do not focus on the burden shifting scheme described above. Rubinstein v. Adm’rs of Tulane Educ. Fund, 218 F.3d 392, 402-03 (5th Cir.2000); Rutherford v. Harris County, Tex. 197 F.3d 173, 180 (5th Cir.1999); Coastal Mart, Inc. v. Hernandez, 76 S.W.3d 691 (Tex.App.-Corpus Christi 2002, pet. dism’d by agr.); Wal-Mart Stores, Inc. v. Canchola, 64 S.W.3d 524, 536-37 (Tex.App.-Corpus Christi) 2001, Tex.R.App. P. 53.7(f) motion filed; but see, Cox & Smith Inc. v. Cook, 974 S.W.2d 217, 223 (Tex.App.-San Antonio 1998, pet. denied) (applying the McDonnell Douglas burden-shifting scheme to cases tried on the merits); Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 90-91 (Tex.App.-Austin 1995, no writ) (applying the McDonnell Douglas burden-shifting scheme to cases tried on the merits). Once the case has been submitted to the jury, “the adequacy of a party’s showing at any particular stage of the McDonnell Douglas ritual is unimportant.” Travis v. Bd. of Regents of the Univ. of Texas Sys., 122 F.3d 259, 263 (5th Cir.1997) (quoting Molnar v. Ebasco Constructors, Inc., 986 F.2d 115, 118 (5th Cir.1993)). We need not parse the evidence into discrete segments. Rubinstein, 218 F.3d at 402. “Instead, we inquire whether the record contains sufficient evidence to support the jury’s ultimate findings.” Smith v. Berry Co., 165 F.3d 390, 394 (5th Cir.1999) (citations omitted).

In a TCHRA case, the employee is not required to prove that his gender was the sole reason or even a substantial reason for the employment action. Quantum Chemical Corp. v. Toennies, 47 S.W.3d 473, 480 (Tex.2001). The employee only needs to show that his gender was a motivating factor in the employer’s decision. Id. If the employee’s gender was a factor in the decision, illegal discrimination occurs. Id.

The District first argues that the evidence does not support the verdict because Appellees did not establish that they were members of a protected class, i.e., they did not prove they were men. Antonio Romero, the District’s coordinator for transportation, testified that all of the mechanics were male. Likewise, when asked whether the mechanics were male, Rodriguez responded, “We’re all men.” When questioned about the complaint he filed with the Equal Employment Opportunity Commission, Rodriguez testified that the EEOC’s investigation concluded that “[a]ll the women were doing it and we were the first two males that did it.” Appellees both stated that they were married and testified about their wives. Rodriguez’ wife, Lidia Armendariz, was also a witness in the case. In addition, Appellees were repeatedly referred to as “Mr. Rodriguez” and “Mr. Monarrez” throughout the trial and the termination letters from the District were addressed in the same manner. In considering only the evidence and inferences that tend to support the jury’s findings, we find more than a scintilla of evidence to support the finding that Ap-pellees are men. Likewise, after carefully reviewing the entire record, we find there is some probative evidence to support the finding that Appellees are male and that the finding is not against the great weight and preponderance of the evidence. This portion of Issue No. One is overruled.

The District next argues that Ap-pellees failed to present any evidence that they were either replaced by female employees or that similarly situated female employees were treated more favorably. The evidence established that female employees of the District’s transportation department frequently clocked in their coworkers and that those employees were not always disciplined for doing so. Romero testified that there was a problem with clocking-in in the transportation department, not with the male mechanics, but with the female bus drivers and attendants. He admitted that not one male had received any written reprimand for clocking-in violations prior to Appellees’ terminations. Romero also admitted that Appellees had violated the same policy that the female employees violated and that those females were all still employed by the District.

Rodriguez testified that female employees did the same thing he did, yet those female employees were not fired. Armen-dariz, who is also an employee of the District, testified that in some instances, the females were not even disciplined for clocking-in other employees. While she received a reprimand for punching another female employee’s card, the employee whose card she punched did not receive a reprimand.

Another female employee of the transportation department, Celia Aguilar, testified that she clocked-in for other employees in the presence of her coordinator, Jerry Venable. Aguilar testified that she was not told that clocking-in for other employees was a violation of the District policy, nor was she reprimanded for doing so. She also stated that she witnessed female employees on more than one occasion clock-in for others and that none of those female employees were terminated or suspended.

Also, Ofelia Gallegos, another employee of the transportation department, frequently clocked-in for her daughter, Minerva Ortega. In some instances, Gallegos clocked-in for Ortega when Ortega was not yet present for work. Armendariz testified that it was common knowledge in the transportation department that Gallegos clocked in for her daughter.

The jury was charged that they could “infer that the employer committed an unlawful employment practice from evidence that the employer discharged the plaintiffs for violating work rules and regulations but did not discharge similarly-situated individuals of a different gender who violated the same work rules and regulations.” In considering only the evidence and inferences that tend to support the jury’s findings, we find more than a scintilla of evidence to support the finding that Ap-pellees’ gender was a motivating factor in the District’s termination. This portion of Issue No. One is overruled.

After carefully reviewing the entire record, we find there is some probative evidence to support the finding that Appel-lees’ gender was a motivating factor in the District’s termination and that the finding is not against the great weight and preponderance of the evidence. Issue No. One is overruled in its entirety.

C. Mental Anguish Award

In Issue No. Three, Appellant alleges that the trial court erred in denying its Motion for Judgment Notwithstanding the Verdict and its Motion for New Trial on the issue of mental anguish damages because the evidence is legally and factually insufficient to support the jury’s award. In addressing mental anguish damages we are guided by the Texas Supreme Court’s decision in Saenz v. Fidelity and Guar. Ins. Underwriters, 925 S.W.2d 607 (Tex.1996) and our own opinion in Worsham Steel Co. v. Arias, 831 S.W.2d 81 (Tex.App.-El Paso 1992, no writ). Mental anguish has been defined in such a way as to imply:

[A] relatively high degree of mental pain and distress; it is more than mere disappointment, anger, resentment, or embarrassment, although it may include all of these, and it includes mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair and/or public humiliation.

Worsham Steel, 831 S.W.2d at 85-86 (citing Trevino v. Southwestern Bell Tel. Co., 582 S.W.2d 582, 584 (Tex. Civ. App.-Corpus Christi 1979, no writ)).

In Saenz v. Fidelity and Guaranty Insurance Underwriters, the Supreme Court reaffirmed Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex.1995), and found that mental anguish damages could not be awarded without either “direct evidence of the nature, duration, or severity of [plaintiffs’] anguish, thus establishing a substantial disruption in the plaintiffs’ daily routine,” or other evidence of “ ‘a high degree of mental pain and distress’ that is ‘more than mere worry, anxiety, vexation, embarrassment, or anger.’ ” Saenz, 925 S.W.2d at 614 (citing Parkway, 901 S.W.2d at 444). Not only must there be evidence of the existence of compensable mental anguish, there must also be some evidence to justify the amount awarded. Saenz, 925 S.W.2d at 614.

While there was no evidence of duration, we find there was more than a scintilla of evidence on the severity of Appellees’ anguish. Rodriguez testified that after he was terminated, he was very depressed. He got upset with his wife and children and he would not talk to them. Rodriguez stated that he was under pressure and was scared. He stated that the job with the District was the only one he had ever had and he did not know where to start looking for another one. Rodriguez could not sleep and could not be with his wife. He was short-tempered and always upset. As a result of the termination, he lost his children’s health insurance and they almost lost their house. Rodriguez was forced to sell a piece of property to pay bills. He also had to borrow money and food from family members. Armendariz testified that Rodriguez would not eat, would not communicate, and stopped going out with the family.

Monarrez testified that after he was terminated, his behavior changed and that his relationship with his wife was affected. He felt terrible. He became more aggressive with his children and he almost got divorced. Monarrez testified that he became sick of his nerves and was prescribed medicine to help him sleep. He also had to borrow money from his family. Monar-rez sold his two vehicles, which were his only means of transportation, and he cashed in his annuity.

In reviewing only the evidence and inferences that tends to support the jury’s findings, we conclude that there was more than a scintilla of evidence for the jury to conclude that Appellees suffered compen-sable mental anguish. After carefully reviewing the entire record, we find there is some probative evidence to support the mental anguish awards and that the finding is not against the great weight and preponderance of the evidence. Issue No. Three is overruled in its entirety.

D. Attorneys’ Fees

In Issue No. Four, the District alleges that the trial court erred in denying its Motion for Judgment Notwithstanding the Verdict on the issue of attorneys’ fees because the evidence is legally and factually insufficient to support the jury’s award. Courts have uniformly held that any award of attorney’s fees, pursuant to statute or under common law, is within the discretion of the trial court. Absent a showing of an abuse of discretion, the award or failure to award fees will not be disturbed on appeal. See Amoco Production Co. v. Smith, 946 S.W.2d 162, 165 (Tex.App.-El Paso 1997, no writ); Simms v. Lakewood Village Property Owners Ass’n, Inc., 895 S.W.2d 779, 787 (Tex.App.-Corpus Christi 1995, no writ); Houston Lighting & Power Co. v. Dickinson Indep. School Dist., 641 S.W.2d 302, 311 (Tex.App.-Houston [14th Dist.] 1982, writ ref'd n.r.e.); Fowler v. Stone, 600 S.W.2d 351, 353 (Tex.Civ.App.-Houston [14th Dist.] 1980, no writ); Stegall v. Stegall, 571 S.W.2d 564, 566 (Tex.App.Fort Worth 1978, no writ).

Here, Appellees’ attorney testified that three attorneys had participated in the case and that about 155 man-hours had been expended in preparing and trying the case. He testified that the usual and customary fee for attorneys in El Paso handling employment cases varied from $125 to $300 per hour depending on the experience of the attorney, the complexity of the case, and whether the attorney is board certified. He stated that they had recently tried two employment discrimination suits in federal court and were awarded $150 and $165 per hour, respectively. He testified that $125 per hour was a reasonable fee for this case, but based on the customary fee of attorneys, it was on the “lower end of the scale.”

The jury was instructed on the factors relevant to measuring attorneys’ fees and awarded $30,000. Based on the testimony elicited, the jury could have awarded fees in the range of $19,375 ($125 multiplied by 155 hours) to $46,500 ($300 multiplied by 155 hours). There was more than sufficient evidence to support the jury’s award and the trial court did not abuse its discretion in entering judgment awarding the amount of fees found by the jury. Issue No. Four is overruled.

Having overruled each of Appellant’s issues on review, we affirm the judgment of the trial court.

      . We note that Appellant does not challenge the lost past and future wages and employee benefits awards on appeal.

      . Appellees note that the evidence which demonstrates they were treated differently from female employees who violated the same rule is relevant to both the prima facie case portion of the McDonnell Douglas analysis and the ultimate question of whether their gender was a motivating factor in the District’s termination.

      . Because we find that the evidence supports the jury’s ultimate finding, that Appellees’ gender was a motivating factor in the District's termination, we need not address Issue No. Two, which challenges legal and factual sufficiency of the evidence to prove that its legitimate, nondiscriminatory reasons for its actions were mere pretexts for discrimination.


source: Caselaw Access Project

author: SANDEE BRYAN MARION, Justice.

license: Public Domain

text:
    INSURANCE COMPANY OF the STATE OF PENNSYLVANIA, Appellant, v. Albert OROSCO, Appellee.
    No. 04-04-00691-CV.
    Court of Appeals of Texas, San Antonio.
    May 25, 2005.
    Rehearing Overruled June 17, 2005.

      William J. Gamble, Gamble & Russell, P.C., Castroville, for appellant.
    Teresa N. Smith, Smith & Habenieht, P.C., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, SANDEE BRYAN MARION, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by

SANDEE BRYAN MARION, Justice.

This is an appeal from the trial court’s (1) denial of appellant’s motion to dismiss appellee’s counterclaim, (2) granting of ap-pellee’s motion to dismiss for lack of the jurisdiction, and (3) awarding appellee attorney’s fees. We affirm the trial court’s granting of appellee’s motion to dismiss for lack of the jurisdiction and awarding ap-pellee attorney’s fees. Because this court lacks jurisdiction, we dismiss appellant’s appeal from the order denying appellant’s motion to dismiss appellee’s counterclaim.

BACKGROUND

In April 2003, appellee, Albert Orosco, filed a claim for workers’ compensation benefits, alleging he had sustained an injury to his right hand, wrist, and forearm while in the course and scope of his employment. On June 10, 2004, the Texas Workers’ Compensation Commission Appeals Panel (“TWCC”) determined Orosco had sustained a work-related injury, but because he failed to timely notify his employer, the TWCC held that Orosco was not entitled to workers’ compensation benefits.

On June 19, 2003, Orosco filed a second claim, this time complaining of a work-related injury to his left arm.

On July 20, 2004, appellant timely-filed its petition in district court, challenging the TWCC’s determination that Orosco’s right-arm injury was work-related. On August 6, 2004, Orosco filed a counterclaim, challenging the TWCC’s determination that he did not timely notify his employer of his injury. Orosco filed a plea to the jurisdiction and a motion to dismiss appellant’s suit for lack of jurisdiction, asserting appellant did not have standing because appellant was not “aggrieved” by the TWCC’s decision. Appellant moved to dismiss Orosco’s counterclaim on the grounds it was not filed within the forty-day deadline imposed by Texas Labor Code section 410.252, which provides that “[a] party may seek judicial review not later than the 40th day after the date on which the decision of the appeals panel was filed with the division.” Tex. Lab. Code Ann. § 410.252(a) (Vernon Supp. 2005). The trial court denied appellant’s motion, but granted Orosco’s motion to dismiss for lack of jurisdiction. The trial court also awarded appellant attorney’s fees in the amount of $2,187.50. The trial court subsequently severed Orosco’s counterclaim into a separate cause.

STANDING

In his plea to the jurisdiction and motion to dismiss, Orosco argued that appellant was not aggrieved by the TWCC’s decision because that decision relieved appellant of any liability for payment of worker’s compensation benefits. Therefore, according to Orosco, appellant does not have standing and dismissal for lack of jurisdiction was proper. Appellant asserts it is aggrieved because both alleged injuries are based upon Orosco’s repetitive keyboarding and, if it is not allowed to pursue its suit for judicial review against Orosco on his right-arm injury, then it may be precluded from presenting a future defense to the second claim on his left-arm injury.

“A party that has exhausted its administrative remedies under this subtitle and that is aggrieved by a final decision of the appeals panel may seek judicial review under this subchapter and Subchapter G, if applicable.” Tex. Lab.Code Aun. § 410.251 (Vernon 1996) (emphasis added). The Worker’s Compensation Code does not define when a party is “aggrieved.” However, an aggrieved party is commonly defined as one who has suffered a loss or injury. See Black’s Law DictionaRY 60 (5th ed.1979); see also City of Houston v. Public Util. Comm’n, 618 S.W.2d 428, 431 (Tex.Civ.App.-Austin 1981, writ ref'd n.r.e.) (defining the term “aggrieved” as a “substantial grievance, a denial of some personal or property right or the imposition of a burden or obligation on a party.”); Southern Nat’l Bank of Houston v. City of Austin, 582 S.W.2d 229, 235 (Tex.Civ.App.-Tyler 1979, writ ref'd n.r.e.) (an aggrieved person is one whose interest in the subject-matter of a judgment has been injuriously affected by the court’s action); Persky v. Greever, 202 S.W.2d 303, 306 (Tex.Civ.App.-Fort Worth 1947, writ ref'd n.r.e.) (holding that to be aggrieved one must have a substantial grievance as to the imposition of a legal injustice, obligation, or burden, or denial of some equitable or legal right).

We conclude that a party is aggrieved by a final decision of the appeals panel if the injury or loss resulting from the final decision is actual and immediate; a possible future injury or loss as a consequence of the panel decision is not sufficient to show an aggrievement. Here, the TWCC awarded appellant the ultimate relief it requested, that it be relieved of liability for Orosco’s claim. Appellant’s argument that a finding by the TWCC of a right-arm injury may result in a later finding of a left-arm injury raises only the possibility of a future loss, and not an actual or immediate loss. Therefore, appellant is not aggrieved by the TWCC decision and appellant does not have standing to seek judicial review of that decision. Accordingly, the trial court did not err in granting Orosco’s motion to dismiss.

ATTORNEY’S FEES

Appellant asserts Orosco is not entitled to attorney’s fees for two reasons. First, according to appellant, Orosco did not prevail on a judicial issue brought by appellant; therefore, Orosco is not entitled to fees under Labor Code section 408.221, which provides as follows:

An insurance carrier that seeks judicial review under Subchapter G, Chapter 410, of a final decision of a commission appeals panel regarding compensability or eligibility for, or the amount of, income or death benefits is liable for reasonable and necessary attorney’s fees as provided by Subsection (d) incurred by the claimant as a result of the insurance carrier’s appeal if the claimant prevails on an issue on which judicial review is sought by the insurance carrier in accordance with the limitation of issues contained in Section 410.302. If the carrier appeals multiple issues and the claimant prevails on some, but not all, of the issues appealed, the court shall apportion and award fees to the claimant’s attorney only for the issues on which the claimant prevails.

Tex. Lab.Code Ann. § 408.221(c) (Vernon Supp.2005) (emphasis added).

The Labor Code does not define “prevailing party.” However, cases construing the same phrase under Civil Practice and Remedies Code chapter 38 and under Texas Rule of Civil Procedure 131 have consistently applied the same definition and analysis to the phrase. A prevailing party is one who is vindicated by the trial court’s judgment. Flagship Hotel, Ltd. v. City of Galveston, 117 S.W.3d 552, 564-65 (Tex.App.-Texarkana 2003, pet. denied) (Chapter 38); Scholl v. Home Owners Warranty Corp., 810 S.W.2d 464, 468-69 (Tex.App.-San Antonio 1991, no writ) (Rule 131); see also Weng Enter., Inc. v. Embassy World Travel, Inc., 837 S.W.2d 217, 222-23 (Tex.App.-Houston [1st Dist.] 1992, no writ) (term “prevailing party” refers to a party who successfully prosecutes an action or successfully defends against an action on the main issue). Here, Oros-co sought and obtained dismissal of appellant’s claim against him. Therefore, he “prevailed.”

Second, appellant argues that, even if Orosco prevailed, he is still not entitled to attorney’s fees because the order of dismissal is void. Appellant contends the order is void because Orosco did not comply with the following sections of the Labor Code:

(a) The party who initiated a proceeding under this subchapter or Subchapter G must file any proposed judgment or settlement made by the parties to the proceeding, including a proposed default judgment, with the executive director of the commission not later than the 30th day before the date on which the court is scheduled to enter the judgment or approve the settlement. The proposed judgment or settlement must be mailed to the executive director by certified mail, return receipt requested.
(f) A judgment entered or settlement approved without complying with the requirements of this section is void.

Tex. Lab.Code Ann. § 410.258(a), (f).

“We presume the regularity of a judgment absent controverting evidence.” Casillas v. State Office of Risk Management, 146 S.W.3d 735, 738 (Tex.App.-El Paso 2004, no pet.). Here, neither the order dismissing appellant’s claim, nor the order awarding Orosco his attorney’s fees recites whether the parties complied with section 410.258(a). However, although the plain language of section 410.258(f) prohibits the trial court from rendering a judgment that does not comply with section 410.258, it does not require the trial court to recite the requirements of the labor code within the judgment. • Id. at 739; Continental Cas. Co. v. Davilla, 189 S.W.3d 374, 381 (Tex.App.-Fort Worth 2004, pet. denied). Both the judgment and the record as a whole are silent on whether the parties complied with section 410.258(a). Therefore, we cannot say this judgment is void. Casillas, 146 S.W.3d at 739 (holding same).

JURISDICTION OVER COUNTERCLAIM

Appellant asserts the trial court erred in denying its motion to dismiss Orosco’s counterclaim. On our own motion, this court considered whether it has jurisdiction over appellant’s appeal of the order denying appellant’s motion to dismiss. We conclude we do not.

On September 1, 2004, the trial court granted Orosco’s motion to dismiss appellant’s claim. On September 10, 2004, the trial court awarded attorney’s fees to Or-osco. On October 1, 2004, appellant filed its notice of appeal from the September orders. On November 2, 2004, the trial court denied appellant’s motion to dismiss Orosco’s counterclaim. On November 15, 2004, the trial court severed Orosco’s counterclaim into a separate cause.

A judgment must be final before it can be appealed. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192 (Tex.2001). A judgment issued without a conventional trial is final for purposes of appeal if and only if it actually disposes of all claims and parties then before it. Id. at 192-93. Otherwise, the judgment is interlocutory. Id. Here, the trial court’s severance order rendered its September orders final and appealable because those orders finally and fully disposed of appellant’s claim against Orosco and Orosco’s claim for attorney’s fees. Cf. Brown v. Todd, 53 S.W.3d 297, 300 (Tex.2001) (noting that “[a]fter the trial court dismissed Hotze’s claim for lack of standing, he could have sought a severance so that the dismissal against him would have been an appealable final judgment.”). However, the severance order did not render the November 2nd order final and appealable because that order did not “dispose” of the counterclaim. Because the counterclaim remains pending, the November 2nd order remains interlocutory; therefore, this court lacks jurisdiction over appellant’s appeal from that order.

CONCLUSION

Appellant is not aggrieved by the appeals panel decision and, therefore, does not have standing to seek judicial review of that decision. Accordingly, we affirm the trial court’s order granting Orosco’s motion to dismiss appellant’s claim. Because Orosco prevailed on his defense against appellant’s claim, we affirm the trial court’s order awarding Orosco his attorney’s fees. The order denying appellant’s motion to dismiss Orosco’s counterclaim is not final and appealable; therefore, we dismiss appellant’s appeal from that order for lack of jurisdiction.

      . Cf. Patterson v. Planned Parenthood of Houston & Southeast Tex., Inc., 971 S.W.2d 439, 442 (Tex.1998) (standing emphasizes need for a concrete injury for a justiciable claim to be presented); Benker v. Texas Dept. of Ins., 996 S.W.2d 328, 330 (Tex.App.-Austin 1999, no pet.) (to establish standing, one must show a justiciable interest by alleging an actual or imminent threat of injury peculiar to one’s circumstances and not suffered by the public generally).

      . We conclude appellant has not established its issue preclusion argument for two reasons. First, on appeal, appellant asserts the "administrative decision establishing that Oros-co’s work activity causes repetitive traumatic injury affects [appellant’s] right to deny the causal relationship in a subsequent claim by Orosco where he contends another injury is work related due to repetitive trauma.” The record before this court does not contain a copy of the contested case hearing officer’s decision. Second, the record contains a copy of the TWCC’s decision, in which the appeals panel states as follows:
      At the [contested case hearing] there was considerable discussion whether CTS [carpal tunnel syndrome] was an ordinary disease of life or an occupational disease. [Citation omitted.] The hearing officer, in his discussion regarding CTS, and citing an Appeals Panel decision, comments that CTS "if not an ordinary disease of life, it must be work related.” We suggest that the question of whether CTS is compensable is not an absolute "always or never work related” but rather is fact specific depending on the circumstances of the case, preexisting risk factors, and the amount and type of work done, etc.
      Regarding the injury determination, the hearing officer discussed the medical evidence and commented on how he reached his conclusion. On appeal, [appellant] contends the hearing officer “placed too much emphasis on the nerve conduction studies” and did not consider other medical records. We have long cited Section 410.165(a) that makes the hearing officer the sole judge of the weight and credibility of the evidence and that is equally true of medical evidence. [Citation omitted.] The hearing officer’s determinations on this issue are supported by the evidence.
      Because a determination of whether Oros-co’s alleged left-arm injury is compensable is "fact specific,” appellant is not precluded from controverting any evidence presented by Orosco regarding "the circumstances of the case, preexisting risk factors, and the amount and type of work done, etc.”


author: W.G. ARNOT, III, Chief Justice.

text:
    Jeffrey PERKINS, Appellant v. John DELANEY, Appellee.
    No. 11-03-00201-CV.
    Court of Appeals of Texas, Eastland.
    May 26, 2005.
    Brett A. Burlison, Maggie D. Conner, David “Mac” McKeand, Law Offices of R. Gary Stephens, Houston, for appellant.
    Adam Brett Chambers, Robert Bate-man, Magenheim Bateman & Helfand, Houston, for appellee.
    Panel consists of ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

W.G. ARNOT, III, Chief Justice.

This case stems from an automobile accident that occurred on the shoulder of the highway. Jeffrey Perkins sued John Delaney as a result of that accident. The jury found both parties negligent, assessing Perkins’s comparative negligence at 60 percent and Delaney’s at 40 percent. Accordingly, the trial court rendered a take-nothing judgment against Perkins. We affirm.

Perkins presents two issues on appeal. In the first issue, he contends that the trial court abused its discretion by prohibiting evidence regarding Delaney’s illegal conduct and violation of a statutory duty. Perkins attempted to introduce the text of TEX. TRANSP. CODE ANN. § 545.058 (Vernon 1999) into evidence. The trial court took judicial notice of the statute, but it denied Perkins’s request to present the statute to the jury.

First, contrary to Perkins’s assertion, the trial court was not required by TEX.R.EVID. 201 to instruct the jury regarding the judicially noticed statute. Rule 201 governs judicial notice of adjudicative facts only and does not apply to judicial notice of legislative facts. Rule 201(a); Aguirre v. State, 948 S.W.2d 377, 380 (Tex.App.-Houston [14th Dist.] 1997, pet’n ref'd). Because Section 545.058 and its terms are legislative facts, the trial court was not required to instruct the jury regarding Section 545.058 even though it took judicial notice of that statute. Aguirre v. State, supra.

Second, the trial court did not prohibit Perkins from introducing evidence of Delaney’s conduct but, rather, prohibited him from presenting the text of Section 545.058 to the jury. Section 545.058(a) is the portion of that statute that deals with driving on the right-hand improved shoulder; it reads as follows:

An operator may drive on an improved shoulder to the right of the main traveled portion of a roadway if that operation is necessary and may be done safely, but only:
(1) to stop, stand, or park;
(2) to accelerate before entering the main traveled lane of traffic;
(3) to decelerate before making a right turn;
(4) to pass another vehicle that is slowing or stopped on the main traveled portion of the highway, disabled, or preparing to make a left turn;
(5) to allow another vehicle traveling faster to pass;
(6) as permitted or required by an official traffic-control device; or
(7) to avoid a collision.

We hold that the trial court did not abuse its discretion in denying Perkins’s request to present the statute to the jury. The first issue is overruled.

In his second issue, Perkins contends that the trial court erred in refusing to instruct the jury on the issue of negligence per se based upon Delaney’s violation of Section 545.058(a). The record shows that the collision occurred in this case as Perkins was pulling onto the right-hand shoulder of the highway and Delaney, who was already traveling on the shoulder, sideswiped Perkins’s vehicle. Perkins testified that he attempted to pull onto the shoulder and find a safe place to stop because he was experiencing car trouble. Delaney testified that he received a page from his girlfriend who had been having car trouble and that he was driving on the shoulder in preparation to stop and retrieve his cell-phone charger so he could call her.

Section 545.058(a) permits driving on the right shoulder if it can be “done safely.” Therefore, Section 545.058(a) does not impose an absolute duty but, rather, imposes a conditional duty that correlates to the common law duty of reasonable care. See Cudworth v. South Texas Paisano Construction Co., 705 S.W.2d 315, 316-17 (Tex.App.-San Antonio 1986, writ ref'd n.r.e.) (holding that the predecessor to Section 545.058(a) imposed only a conditional duty and that violation of such a statute does not constitute negligence per se but may constitute negligence); see also Louisiana-Pacific Corporation v. Knighten, 976 S.W.2d 674, 675 (Tex.1998); Borden, Inc. v. Price, 939 S.W.2d 247 (Tex.App.-Amarillo 1997, writ den’d). When the duty imposed by statute is conditional, a negligence-per-se instruction is precluded. Louisiana-Pacific Corporation v. Knighten, supra; Borden, Inc. v. Price, supra. Accordingly, we hold that the trial court did not err in refusing to instruct the jury as to negligence per se. The second issue is overruled.

The judgment of the trial court is affirmed.


author: Opinion by CATHERINE STONE, Justice.

text:
    Hilario HERNANDEZ, Appellant, v. MID-LOOP, INC. d/b/a Santikos Investments, Appellee.
    No. 04-04-00789-CV.
    Court of Appeals of Texas, San Antonio.
    June 1, 2005.

      Dain A. Dreyer, Heygood, Orr, Reyes & Bartolomei, L.L.P., San Antonio, for appellant.
    Edward C. Mainz Jr., Joe Frazier Brown Jr., Thornton, Biechlin, Segrato, Reynolds & Guerra, L.C., San Antonio, for appellee.
    Sitting: CATHERINE STONE, Justice SARAH B. DUNCAN, Justice REBECCA SIMMONS, Justice.
   OPINION

Opinion by CATHERINE STONE, Justice.

Hilario Hernandez appeals the trial court’s “death penalty” sanction dismissing his premises liability action against appel-lee Mid-Loop, Inc. d/b/a Santikos Investments. Hernandez contends the trial court abused its discretion, claiming his failure to fully respond to discovery was unintentional and does not indicate that his claim lacks merit. Because the trial court did not abuse its discretion, we affirm the order of dismissal.

BACKGROUND

Hilario Hernandez alleged he was injured while riding a bicycle on a sidewalk across Mid-Loop’s property on August 22, 2000. Hernandez alleged Mid-Loop had been excavating a hole in the sidewalk and covered it with plywood, and that he fell into the hole when the plywood collapsed under his weight. Hernandez sued Mid-Loop for damages, including past and future medical expenses, physical suffering, and mental anguish. Mid-Loop filed a general denial and asserted contributory negligence as a defense.

In a set of interrogatories served on Hernandez, Mid-Loop learned Hernandez previously injured his head, neck, and back; had a prior history of hospitalizations; filed a worker’s compensation claim for a slip and fall injury in 1989; suffered a gunshot wound to his face in 1989; and sustained injuries in a car accident in November 2002. Hernandez provided a list of twelve of his medical providers subsequent to the alleged bicycle accident and the name of one physician he saw prior to the bicycle accident.

At a deposition held November 4, 2003, Mid-Loop attempted to ascertain the identities of Hernandez’s medical providers, information regarding his medical history, which hospitals he visited, where he presently received medical treatment, and information regarding the worker’s compensation claim. Hernandez was verbally abusive, hostile, and uncooperative throughout the deposition. Defense counsel asked Hernandez for his driver’s license to determine if Hernandez had been involved in any previous accidents involving personal injuries. Hernandez refused to hand over his driver’s license and became hostile. After consulting with his attorney, Hernandez complied, but told defense counsel to “eat shit and die.”

At the deposition, Hernandez was in a wheelchair and wore a neck brace, but could not remember if any physician had prescribed these items for him. He told defense counsel his entire body hurt, except his hair and the tips of his fingernails. Hernandez stated he could not remember the names of any of his treating physicians, what medication he was taking, whether he ever worked at the Hyatt Hotel, whether he suffered a back injury fifteen years prior to the alleged accident, whether he filed a worker’s compensation claim or ever had been in a car accident. Hernandez admitted he had been to the hospital, but said he could not remember which one. He also stated he could not remember if he had been to physical therapy. Defense counsel asked Hernandez if he suffered any bodily pain prior to the alleged accident, and he repeatedly answered “I don’t know.” Defense counsel finally asked Hernandez to sign a medical release form in order to recover his medical records and Hernandez refused, arguing the records had nothing to do with his case.

Mid-Loop subsequently filed its first motion to compel and motion for sanctions, complaining Hernandez had been uncooperative and evasive. In lieu of a hearing, Hernandez agreed to an order regarding Mid-Loop’s motion. The order provided in part that Hernandez present himself for deposition and respond to all questions to the best of his ability. Mid-Loop scheduled a second deposition for January 28, 2004, but Hernandez cancelled. The deposition was re-scheduled for February 17, 2004. Mid-Loop attempted a second time to elicit information regarding Hernandez’s previous injuries and medical history. Throughout his second deposition, Hernandez again testified he could not recall any information regarding his medical history, medical providers, medications, hospitals or medical facilities he had visited for treatment, or whether any physician told him he needed to be in a wheelchair. Hernandez testified his attorney had copies of his medical records subsequent to the accident.

Hernandez indicated he injured his back approximately fifteen years prior to the accident and filed a worker’s compensation claim. Hernandez also testified he had been in “a lot of accidents” and had prior injuries, but he could not describe the particulars of his previous accidents and injuries, except that he has scarring on his legs and was once shot in the face. When asked if he had ever been arrested, Hernandez stated “It’s more likely yes, but I cannot tell you dates or anything like that.” Hernandez complained of pain during the deposition, but declined an offer to end it and resume it when he felt better. He stated he has had problems with his memory since the accident and that is why he could not recall much information. At times, Hernandez became argumentative and would not answer Mid-Loop’s questions directly. Mid-Loop recessed the deposition and scheduled a deposition with Hernandez’s wife, Ernestina Hernandez, for April 13, 2004. Ernestina re-scheduled the deposition for April 27, 2004, but left a message with defense counsel the evening before, stating that she would not appear.

Mid-Loop filed a second motion for sanctions and motion to dismiss, complaining Hernandez continued to be uncooperative and refused to answer questions relevant to his case. Mid-Loop sought reimbursement for attorney’s fees in addition to costs of the transcript and taking a non-appearance affidavit regarding Ernestina. Hernandez did not file an answer. At the hearing, the trial court asked Hernandez’s counsel if he could provide any medical testimony supporting Hernandez’s claims of memory loss, and he could not. Hernandez’s counsel verified that medical testing of Hernandez’s memory complaints had been “inconclusive.” The trial court denied Mid-Loop’s motion to dismiss and announced it would give Hernandez one more chance to cooperate. The trial court entered an order:

IT IS ORDERED, ADJUDGED AND DECREED that Plaintiff will present himself for deposition and will respond to all questions in good faith, to the best of his ability, and in a manner satisfactory to this Court. Should Plaintiff fail to do so, his case will be dismissed by this Court in its entirety.

The trial court also ordered Hernandez to pay $2,626 in monetary sanctions for costs expended to take his February deposition, and costs for Ernestina’s non-appearance, which Hernandez paid. Prior to the taking of Hernandez’s third • deposition and the deposition of Ernestina Hernandez, Mid-Loop issued a subpoena ordering them to produce the names of Hernandez’s medical providers and Hernandez’s medical records related to his head, neck, and back injuries from 1987 to the present.

Hernandez and his wife were deposed three weeks later on June 17, 2004. Hernandez and Ernestina did not comply with the subpoena. Hernandez had given his attorney medical records, but only records subsequent to his accident in August 2000. He testified he understood he was required to produce his medical records since 1987, had searched his home for ■ them, and could not find them. Hernandez stated he made no other attempts to locate his medical records because he did not have any resources. He also did not ask his attorney for help locating them. Ernestina testified in her deposition that Hernandez’s medical records prior to 2000 existed, but she did not bring them or make any effort to locate them because she “didn’t have the time” and “didn’t get around to it.”

Ernestina verified that Hernandez was injured while working at the Hyatt Hotel several years prior to his bicycle accident. She also stated he “was hurt pretty bad” in a car accident in November 2002. She testified Hernandez was seeing a psychiatrist named Dr. Santa Miago, had surgery on his neck performed by Dr. Parra after the accident, and saw a physician, Dr. Barrera, for his back treatments. Hernandez testified, however, that his psychiatrist’s name was “Dr. San Diego Sarabia,” and mentioned Dr. Parra, but could not remember where his physicians’ offices were located. Hernandez was unable to provide the names of any of his medical providers prior to the accident and repeatedly asked if he could provide a list of the names later, despite acknowledging he was responsible for the list that day.

Hernandez again wore a neck brace and used a wheelchair, but could not tell defense counsel which physician, if any, ordered them for him. Mid-Loop searched the limited medical records Hernandez provided and could not locate prescriptions for the wheelchair and neck brace, or any physician’s orders for Hernandez to use them. Hernandez could not recall being in any other accidents, including car accidents.

Mid-Loop filed its third motion for sanctions and second motion to dismiss on July 14, 2004, alleging Hernandez failed to comply with the court’s order because he did not produce the names of any of his medical providers prior to the accident; was sarcastic, uncooperative, and evasive; only provided two partial names of his current treating physicians; and failed to disclose he had been in a serious car accident and sustained injuries subsequent to his bicycle accident. Hernandez did not file an answer. After a hearing, the trial court entered an order striking Hernandez’s pleadings and dismissing his case with prejudice. The trial court denied Hernandez’s motion to reconsider.

Discussion

In his sole issue, Hernandez contends the trial court abused its discretion in dismissing his case against Mid-Loop because there is insufficient evidence he abused the rules of discovery, or in the alternative, Texas law does not permit death penalty sanctions in his case.

Discovery sanctions are authorized by Texas Rule of Civil Procedure 215. Specifically, the trial court is authorized to strike a party’s pleadings and dismiss an action with or without prejudice, i.e., issue “death penalty” sanctions. Tex.R. Civ. P. 215.2(b)(5). We review the trial court’s imposition of sanctions for discovery abuse under an abuse of discretion standard. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex.1991). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex.2000). In assessing sanctions for discovery abuse, the trial court may consider everything that has occurred during the litigation. Berry-Parks Rental Equip. Co. v. Sinsheimer, 842 S.W.2d 754, 757 (Tex.App.-Houston [1st Dist.] 1992, no writ). When reviewing a trial court’s imposition of sanctions, we view conflicts in the light most favorable to the trial court’s ruling, and resolve all inferences in favor of the trial court’s judgment. Herring v. Welborn, 27 S.W.3d 132, 143 (Tex.App.-San Antonio 2000, pet. denied).

The purpose of discovery sanctions is threefold: 1) to secure compliance with discovery rules; 2) to deter other litigants from similar misconduct; and 3) to punish violators. Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex.1992) (orig.proceeding). Any sanction imposed under Rule 215.2(b) must be just. Tex.R. Civ. P. 215.2(b); Spohn Hosp. v. Mayer, 104 S.W.3d 878, 882 (Tex.2003). For the imposition of sanctions to be just, a direct relationship must first exist between the offensive conduct and the sanction imposed. TransAmerican, 811 S.W.2d at 917. In other words, a just sanction must be directed against the abuse and toward remedying the prejudice caused to the innocent party. Id. Second, a just sanction must not be excessive; it should be no more severe than necessary to satisfy its legitimate purposes. Id. To achieve this end, the trial court must first consider the availability of less stringent sanctions to determine whether lesser sanctions will fully promote compliance, deterrence, and discourage further abuse. Chrysler Corp., 841 S.W.2d at 849.

A death penalty sanction “is of particular concern” because the trial court renders judgment without addressing the merits of the case. Hamill v. Level, 917 S.W.2d 15, 16 (Tex.1996). Thus, death penalty sanctions should only be imposed in the face of flagrant bad faith or conduct that justifies a presumption that the offending party’s claims or defenses are meritless. TransAmerican, 811 S.W.2d at 918.

In each of its motions, Mid-Loop asserted that Hernandez violated Rule 215.1(c) of the Texas Rules of Civil Procedure, which provides for sanctions where a party has given an “evasive or incomplete” answer. Tex.R. Civ. P. 215.1(c). Hernandez contends the evidence is insufficient to support the conclusion he was intentionally evasive. We disagree. Hernandez repeatedly blamed his failure to answer questions on memory problems, but could not produce any conclusive medical evidence of memory deficit. Moreover, the record reveals Hernandez knew he had been ordered to produce his medical records and the names of his medical providers since 1987, but failed to do so. Hernandez implied that he was able to produce such records, however, as he continuously asked if he could provide the list at a later time. Hernandez also provided incomplete answers regarding his prior accidents. The evidence is sufficient to support the trial court’s conclusion Hernandez violated Rule 215.1(c).

Hernandez also contends death penalty sanctions were unlawful in this case. We again disagree. Under Rule 215, the trial court has discretion to dismiss a case with prejudice where a party fails to obey a court order to comply with proper discovery requests. See Tex.R. Crv. P. 215.2(b)(5). After careful consideration of the record before us, we cannot conclude that the trial court abused its discretion in dismissing Hernandez’s suit as a sanction for his abuse of the discovery process. We conclude the circumstances of this case justify the penalty imposed. Here, Hernandez filed a lawsuit and persistently failed to cooperate in his depositions and disclose crucial information regarding his medical history. Further, the record reveals that the trial court tested lesser sanctions by its June 7, 2004 order. Hernandez paid the monetary fine and continued to be uncooperative, which shows the lesser sanctions failed to effectuate compliance. Hernandez’s refusal to cooperate with Mid-Loop’s legitimate discovery requests justifies the trial court’s assumption that Hernandez’s claim lacked merit. See Chasewood Oaks Condominiums Homeowner’s Ass’n., Inc. v. Amatek Holdings, Inc., 977 S.W.2d 840, 845 (Tex.App.-Fort Worth 1998, pet. denied) (citing Hamill, 917 S.W.2d at 16).

Where, as here, a plaintiff files suit and then actively frustrates all legitimate attempts by a defendant to define the cause of action and investigate potential defenses, there is a direct relationship between the plaintiffs conduct and the trial court’s dismissal of the action. Id. “A party who will not ‘play by the rules’ even after repeated orders to do so should not be allowed to play at all.” Id. After his first deposition, the trial court gave Hernandez two more opportunities to cooperate. Even after the imposition of lesser sanctions, Hernandez continued to give evasive and incomplete answers to legitimate discovery requests.

Conduct such as that exhibited by Hernandez indicates either that he believes the court system can be manipulated for his personal gain, or that he is in need of mental health services. Indeed, at one sanctions hearing Hernandez’s counsel expressed concern that Hernandez was incapacitated and in need of a guardian. In any event, the trial court offered Hernandez at least two opportunities to correct his deficient conduct; the court exhibited restraint in not dismissing Hernandez’s suit earlier. To allow this suit to continue in the face of Hernandez’s blatant failure to respond to discovery would serve no rational purpose, and if anything, would undermine the legitimate role that the tort system serves for those who are truly injured by another’s negligence.

Having reviewed the entire record, we hold that the trial court did not abuse its discretion in dismissing Hernandez’s claims with prejudice. The judgment of the trial court is affirmed.


author: Opinion by PHYLIS J. SPEEDLIN, Justice.

text:
    CAPITOL INDEMNITY CORPORATION, Appellant, v. KIRBY RESTAURANT EQUIPMENT AND CHEMICAL SUPPLY COMPANY, INC., Appellee.
    No. 04-04-00754-CV.
    Court of Appeals of Texas, San Antonio.
    June 8, 2005.

      Ian M. McLin, Roy L. White, Shaddox, Compere, Walraven <& Goode, P.C., San Antonio, for appellant.

      Stephen J. Johnson, Hatzenbuehler General Contractors, Inc., San Antonio, for appellee.
    Sitting: ALMA L. LÓPEZ, Chief Justice, KAREN ANGELINI, Justice, PHYLIS J. SPEEDLIN, Justice.
   OPINION

Opinion by PHYLIS J. SPEEDLIN, Justice.

Capitol Indemnity Corporation appeals from a final judgment against it in a suit to recover on a payment bond. See Tex. Gov’t Code Ann. § 2253.073 (Vernon 2000). We affirm the trial court’s judgment.

BACKGROUND

In February 2001, Capitol Indemnity Corporation issued a payment bond on a public works project pursuant to Texas Government Code Chapter 2253 for a project involving additions and renovations to Natalia Independent School District buildings. That same month, Kirby Restaurant Equipment and Chemical Supply Company entered into a contract with the general contractor for the project in which Kirby agreed to provide labor and materials. In May 2003, Kirby instituted this suit against both the general contractor and Capitol, as surety on the payment bond, alleging that it had provided the labor and materials as agreed but had not been paid by the general contractor.

Kirby alleged it had properly perfected its claim against the payment bond by correspondence dated May 7, 2002. Capitol denied that the correspondence was sufficient to comply with the notice requirements set out in the Texas Government Code for perfection of a claim. See Tex. Gov’t Code Ann. § 2253.041(c) (Vernon 2000). On cross-motions for summary judgment, the trial judge granted summary judgment in favor of Kirby. This appeal timely followed.

Analysis

In its sole issue on appeal, Capitol contends that the trial court erred in granting Kirby’s cross-motion for summary judgment and denying Capitol’s motion for summary judgment. Capitol asserts that Kirby’s claim for payment on the bond should have been barred as a matter of law due to Kirby’s failure to strictly comply with the notice requirements provided in section 2253.041 of the Government Code. We disagree and accordingly affirm the trial court’s judgment.

Standard of Review

A summary judgment is reviewed de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). The scope of review in an appeal from summary judgment is limited to issues expressly presented to the trial court by written motion or response. Tex.R. Civ. P. 166a (c); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 204 (Tex.2002). Where both parties have filed motions for summary judgment, and one is granted and one is denied, we review the summary judgment evidence presented by both sides and determine all questions presented and render such judgment as the trial court should have rendered. Lubbock County, Tex. v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 583 (Tex.2002).

Here, the facts regarding Kirby’s claim are essentially undisputed. Capitol does not dispute that Kirby provided labor and materials for the public works project, nor does it challenge the amount of the claim asserted by Kirby. The only issue before the court is whether the notice provided by Kirby to Capitol and the general contractor, together with the accompanying sworn statement, is sufficient to satisfy the notice requirements in section 2253.041 of the Texas Government Code.

Perfection of a Claim

A governmental entity that enters into a public works contract with a general contractor must under certain circumstances require the contractor to execute performance and payment bonds before work begins. Tex. Gov’t Code Ann. § 2253.021(a) (Vernon Supp.2004-05). The purpose of the payment bond is to protect claimants who provide labor or materials in the construction of public works, because public property is protected from forced sale and therefore may not be made the subject of a mechanic’s lien. City of LaPorte v. Taylor, 836 S.W.2d 829, 831-32 (Tex.App.-Houston [1st Dist.] 1992, no writ). In order to bring suit against the surety on a payment bond, the beneficiary must first properly perfect the claim. See Tex. Gov’t Code Ann. § 2253.073. The statute is intended “to provide a simple and direct method of giving notice and perfecting such claims.” Taylor, 836 S.W.2d at 832. Section 2253.041 provides that a payment bond beneficiary must “mail to the prime contractor and the surety written notice of the claim.” Tex. Gov’t Code Ann. § 2253.041(a). The notice must be “accompanied by a sworn statement of account that states in substance: (1) the amount claimed is just and correct; and (2) all just and lawful offsets, payments, and credits known to the affiant have been allowed.” Tex. Gov’t Code Ann. § 2253.041(c).

Kirby’s Notice to Capitol

The notice provided by Kirby to Capitol consisted of a letter dated May 7, 2002, accompanied by a sworn document entitled, “Application and Certificate for Payment.” In the letter, Kirby states that the letter is intended to provide notice that the identified account has not been paid in accordance with the work performed for the month of February 2002. The letter states, “The sum of Seventy nine thousand nine hundred fifty six dollars and seventy five cents ($79,956.75) is currently unpaid and owing for such work, this amount does not include any agreed retainage .... if this deficiency should not be otherwise paid or settled, a claim may be filed on your bond.” The attached sworn certificate for payment includes the following statement:

The undersigned Contractor [Kirby] certifies that to the best of the Contractor’s knowledge, information and belief the Work covered by this Application for Payment has been completed in accordance with the Contract Documents, that all amounts have been paid by the Contractor for work for which previous Certifications for Payment were issued and payments received from the Owner, and that current payment shown herein is now due.

The document indicates that $79,956.75 is the “current payment due.”

Capitol contends that Kirby’s claim is barred as a matter of law because Kirby’s letter and sworn statement are inadequate to properly perfect a payment bond claim. The alleged deficiencies are that the sworn statement does not indicate that “the amount claimed is just and correct,” nor does it state that “all just and lawful offsets, payments, and credits known to the affiant have been allowed.” See Tex. Gov’t Code Ann. § 2253.041(c).

Compliance with Statute

Capitol contends that a claimant must strictly comply with the statute’s notice requirements in order to properly perfect a claim. While it is true that notice is a substantive condition precedent to the ability to pursue a claim on the bond, we disagree that the notice must strictly conform to the exact language provided by the statute. Compare Commercial Union Ins. Co. v. Spaw-Glass Corp., 877 S.W.2d 538, 540 (Tex.App.-Austin 1994, writ denied) (holding “strict compliance” with statute is required where it is undisputed that claimant wholly failed to give notice to contractor), and Barfield v. Henderson, 471 S.W.2d 633, 637 (Tex.Civ.App.-Corpus Christi 1971, writ ref'd n.r.e.) (same holding), with Featherlite Bldg. Prod. Corp. v. Constructors Unlimited, Inc., 714 S.W.2d 68, 69 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.) (“The exact language of the McGregor Act’s notice provisions is not required.”).

The statute establishing the procedure for presenting a claim against a payment bond on a public contract is remedial in nature and should therefore be construed liberally to accomplish its purposes. Taylor, 836 S.W.2d at 832; Featherlite, 714 S.W.2d at 69. In addition, the language of the statute itself indicates that substantial compliance is all that is required. Featherlite, 714 S.W.2d at 69.

Kirby’s letter and sworn statement indicate that the amount of the claim is “currently unpaid and owing,” “now due,” and represents the “current payment due.” It further affirms that the amount claimed is for work that has been completed in accordance with the contract. We conclude that this language is sufficient to inform the surety, in substance, that the amount claimed is “just and correct” in compliance with the statute. See Featherlite, 714 S.W.2d at 69. In addition, the statement indicates that all previous certifications for payment had been paid by the contractor and that the current amount represents what is “now due,” suggesting that “all just and lawful offsets, payments, and credits known to the affiant have been allowed.” See id. at 70. While Kirby did not use the exact language of the statute, we conclude that the documentation provided to Capitol was sufficient to fulfill the statute’s purpose — to provide the surety with knowledge of the substance of the claim and to protect claimants who furnish labor and materials in the construction of public works with a simple and direct method of providing notice of their claims. City of Mason v. W. Tex. Util. Co., 150 Tex. 18, 237 S.W.2d 273, 280 (1951) (“If a statute is curative or remedial in its nature, the rule is generally applied that it be given the most comprehensive and liberal construction possible. It certainly should not be given a narrow, technical construction which would defeat the very purpose for which the statute was enacted.”); Taylor, 836 S.W.2d at 832.

Because we conclude that Kirby’s notice substantially complies with the statutory requirements for perfection of its claim against the bond, and because no other issues were raised challenging the claim, we affirm the trial court’s judgment against Capitol.

      . The current version of the McGregor Act is codified in the Texas Government Code. See Tex.Rev.Civ. Stat. Ann. art. 5160' (Vernon 1987), repealed by Act of May 22, 1993, 73rd Leg., R.S., ch. 268, § 46(1), 1993 Tex. Gen. Laws 583, 986 (current version at Tex. Gov’t Code Ann. §§ 2253.001-.079 (Vernon 2000 & Supp.2004-05)).

      . We presume that the agreed upon price for the labor and materials to be provided by Kirby was "just” as it was negotiated by sophisticated and knowledgeable parties, and there is no complaint that the amount claimed is not in accordance with the parties’ agreement. See Featherlite, 714 S.W.2d at 70.


author: TERRY McCALL, Justice.

text:
    Charles Aaron MAINES, Appellant v. STATE of Texas, Appellee.
    No. 11-03-00305-CR.
    Court of Appeals of Texas, Eastland.
    June 9, 2005.
    Tom Brown, Livingston, Charles Aaron Maines, for appellant.
    Mark E. Price, Criminal District Attorney, Coldspring, for appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

TERRY McCALL, Justice.

A jury convicted appellant, Charles Aaron Maines, of stalking. TEX. PEN. CODE ANN. § 42.072 (Vernon 2003). Appellant elected to have the trial court impose the sentence. After appellant pleaded true to 2 enhancement paragraphs, the trial court sentenced him to 60 years confinement. We affirm.

Appellant, in his sole issue on appeal, claims that the trial court abused its discretion when it failed to stop the trial and convene a separate jury to consider his competency. The parties agree that appellant was competent during the first day of trial and that he was competent during the punishment phase. Appellant contends that he was not competent during the second day of the guilt/innocence phase due to an overdose of prescription pills after the first day of trial ended. Because appellant acted voluntarily in taking the overdose of prescription pills— even if the overdose affected his competency at trial — appellant was not entitled to a competency hearing. See TEX. CODE CRIM. PRO. ANN. art. 33.03 (Vernon 1989); Bottom v. State, 860 S.W.2d 266 (Tex.App.-Fort Worth 1993, no pet’n).

On May 19, 2003, with appellant present and presumed competent, the venire panel was questioned, a jury was seated and sworn, appellant was arraigned, and he pleaded not guilty. The proceedings continued with the State’s opening statement and the examination of the State’s first ■witness by both the State and the defense. After the court recessed on May 19, appellant swallowed 52 prescription drug pills and was taken to the hospital. Appellant remained in the hospital on May 20. The court remained in recess on May 20, telling the jury that there was “a medical problem in connection with the trial.”

On May 21, appellant was taken from the hospital to the courtroom to continue the proceedings. When appellant returned to the courtroom, he held his head down on the books and did not rise for the court. According to the trial court, appellant appeared “to be attempting to indicate that he [was] extremely sleepy or narcotized or something.” The trial court recessed and gave counsel permission to visit with appellant prior to the start of the proceedings. After the recess, the court asked appellant’s counsel if he had anything to say about appellant’s condition. Appellant’s counsel told the trial court that his client was, for the most part, incoherent and irrational during their discussions. Counsel also told the court that he was now questioning appellant’s competency to stand trial. This was the first time an issue regarding appellant’s competency was raised.

After counsel raised these concerns, the trial court held a competency inquiry to determine whether a competency hearing before a separate jury was required. Under former TEX. CODE CRIM. PRO. art. 46.02, § 2(b) (2001), applicable to this case, a trial court would first conduct a hearing out of the presence of the jury (a “competency inquiry”) to determine whether or not there was evidence to support a finding of incompetency to stand trial. See Alcott v. State, 51 S.W.3d 596, 600-01 (Tex.Cr.App.2001). A hearing under former Article 46.02, section 4 (a “competency hearing”) was required only if the evidence was such as to raise a bona fide doubt in the judge’s mind as to the defendant’s competency to stand trial. Collier v. State, 959 S.W.2d 621, 625 (Tex.Cr.App.1997), cert. den’d, 525 U.S. 929, 119 S.Ct. 335, 142 L.Ed.2d 276 (1998). The trial court below determined that there was not enough evidence to impanel a separate jury to determine appellant’s competency. By the afternoon of May 21, appellant’s counsel represented to the trial court that, “whatever condition [appellant] was suffering from this morning, it seems- — it seems to have resolved itself.”

We find that a competency hearing was not required. Appellant chose to overdose on prescription drug pills. When a defendant voluntarily absents himself after pleading to the indictment, or after the jury has been selected, the trial may proceed to its conclusion. Article 33.03; Gonzales v. State, 515 S.W.2d 920 (Tex.Cr.App.1974); Bottom v. State, supra. Because a defendant cannot avoid trial by intentionally disabling himself, we overrule appellant’s issue. Bottom v. State, supra at 267.

The judgment of the trial court is affirmed.

      . Former TEX. CODE CRIM. PRO. art. 46.02 (2001) has been replaced by TEX. CODE CRIM. PRO. ANN. art. 46B.001 et seq. (Vernon Pamph. Supp.2004-2005). The former version applies to this case because it was in effect at the time the proceedings were initiated.


text:
    Wayne BROWN; Roxie C. Brown; Mondaile Energy, Inc.; and Ron Dority d/b/a Shady Oil Company, Appellants, v. Mary REETER, Appellee.
    No. 11-04-00009-CV.
    Court of Appeals of Texas, Eastland.
    June 23, 2005.

      Keith Woodley, Woodley & Dudley, Comanche, for Appellant.
    Gregory Allen, Asbury & Asbury, L.L.P., Abilene, for Appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J„ and McCALL, J.
   Opinion

W.G. ARNOT, III, Chief Justice.

This appeal arises out of a traditional summary judgment terminating three mineral leases referred to by the parties as the “Martin Lease,” the “Day Lease,” and the “Day A Lease.” Appellee, Mary Reefer, owns a portion of the surface estate where the leases are located. She acquired the surface on April 26, 1999. She filed suit against appellants, Wayne Brown, Roxie C. Brown, Mondaile Energy, Inc., and Ron Dority d/b/a Shady Oil Company in 2002, claiming that the leases had expired prior to her acquisition of the property due to lack of production. Appellants were operators of the leases at various times. Appellee also alleged claims for damages with respect to the manner in which appellants operated the leases. Ap-pellee additionally asserted a breach of contract claim against Wayne Brown arising from letters exchanged between the parties’ attorneys prior to suit being filed.

Appellee filed a motion for partial summary judgment on her claims seeking to terminate the three leases and her breach of contract claim against Wayne Brown. Appellants did not file a response to the motion. The trial court granted appellee’s motion for partial summary judgment. The trial court subsequently entered an order severing out a portion of the appel-lee’s causes of action. Appellants raise two issues attacking the summary judgment. We affirm.

In their first issue, appellants contend that the trial court erred in granting summary judgment on the breach of contract claim which appellee asserted against Wayne Brown. Appellee counters this contention by asserting that the issue is not appealable under the terms of the order of severance which the trial court entered. We agree with appellee’s assertion in this regard.

A summary judgment which does not dispose of all parties and issues in the pending suit is interlocutory and not ap-pealable unless a severance is ordered. Hood v. Amarillo National Bank, 815 S.W.2d 545, 547 (Tex.1991); Pan American Petroleum Corporation v. Texas Pacific Coal & Oil Company, 159 Tex. 550, 324 S.W.2d 200, 200-01 (1959). There is no dispute that the summary judgment order entered by the trial court granted partial summary judgment in favor of ap-pellee on her breach of contract claim against Wayne Brown. However, the order of severance which the trial court entered did not cover all of the claims upon which the trial court granted summary judgment. Specifically, the severance order provided as follows:

[Ejach cause of action heretofore asserted by [Appellee] under the Uniform Declaratory Judgment Act where [Appel-lee] sought a judicial declaration that the Martin lease, Day lease and Day A lease terminated prior to April 26, 1999 shall be severed into a separate cause and assigned a separate cause number by the Clerk of this Court, and that final judgment be entered in favor of [Appel-lee] in the new lawsuit in accordance with this Court’s November 24, 2003 Order Granting Partial Summary Judgment.

Under the express terms of the severance order, only appellee’s claims seeking the termination of the three leases were placed into a separate lawsuit and assigned the cause number of 3,586. Appellees other claims, including the breach of contract claim against Wayne Brown, remained in the original lawsuit which bears the cause number of 2,747. Thus, appel-lee’s breach of contract claim against Wayne Brown is not a matter addressed in the judgment from which appellants appeal. Furthermore, the summary judgment granted by the trial court on the breach of contract claim remains an interlocutory, unappealable order because it has not been severed from appellee’s other causes of action and because it is not before us. Accordingly, we do not have jurisdiction to address the merits of appellants’ first issue. Appellants’ first issue is overruled.

Appellants’ second issue addresses the trial court’s determination that the Day Lease expired for lack of production. As noted previously, appellee sought to terminate the Martin Lease and the Day A Lease in addition to the Day Lease. Appellants announced at the hearing on the motion for summary judgment that they did not dispute appellee’s claim that the Martin Lease and the Day A Lease had expired for lack of production. Accordingly, appellants’ second issue deals solely with the Day Lease.

In a traditional summary judgment motion brought under TEX.R.CIV.P. 166a(c), the moving party has the burden of showing that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. Provident Life and Accident Insurance Company v. Knott, 128 S.W.3d 211, 215 (Tex.2003). We review the trial court’s summary judgment de novo. Provident Life and Accident Insurance Company v. Knott, supra at 215. We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Provident Life and Accident Insurance Company v. Knott, supra at 215. A genuine issue of material fact exists if the non-movant produces more than a scintilla of evidence establishing the existence of the challenged element. Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex.2000).

The non-movant must expressly present to the trial court, by written answer or response, any issues defeating the mov-ant’s entitlement to summary judgment. McConnell v. Southside Independent School District, 858 S.W.2d 337, 343 (Tex.1993)(citing City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979)). We do not consider grounds the non-movant failed to expressly present to the trial court in a written response. McConnell v. Southside Independent School District, supra at 343. If the non-movant fails to respond to a summary judgment motion, “the non-movant is limited on appeal to arguing the legal sufficiency of the grounds presented by the movant.” McConnell v. Southside Independent School District, supra at at 343 (citing City of Houston v. Clear Creek Basin Authority, supra at 678).

Appellee alleged in her traditional motion for summary judgment that the Day Lease terminated prior to April 26, 1999. Her summary judgment evidence in support of this ground consisted of certified copies of the five written leases which comprise the Day Lease, appellants’ answers to interrogatories, and certified copies of the records from the Railroad Commission of Texas. The five written leases which comprise the Day Lease provided that they “shall remain in force for a term of three (3) years from this date (called “primary term”), and as long thereafter as oil, gas, or other mineral is produced from said land.”

Appellee alleged in the motion that there was no production on the Day lease from February 1998 through December 1998. She supported this allegation with appellants’ discovery responses and records from the Railroad Commission of Texas. Appellants responded to an interrogatory asking for information about production occurring on the Day Lease after February 1998 as follows: “[Y]ou may obtain the information from the Texas Railroad Commission,” and “That information is contained in public records at the Texas Railroad Commission Office in Abilene, Texas.” The records from the Railroad Commission indicated that no production occurred on the Day Lease from February 1998 through December 1998. The Commission’s records further indicated that no production occurred on the Day Lease in the months of February, March, and April of 1999.

A clause in an oil and gas lease that the lease will continue after the primary term for “so long thereafter as oil, gas, or other minerals is produced” has been interpreted to mean paying production or production in paying quantities. Garcia v. King, 139 Tex. 578, 164 S.W.2d 509 (1942). A lessor seeking to establish that a lease terminated because of a “cessation of production in paying quantities” must meet a two-prong test: (1) that the lease failed to yield a profit over a reasonable period of time and (2) that a reasonably prudent operator would not have continued to operate the well in the manner in which it was being operated for the purpose of making a profit and not merely for speculation. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684, 690 (1959); Cannon v. Sun-Key Oil Co., Inc., 117 S.W.3d 416, 421 (Tex.App.-Eastland 2003, pet’n den’d). Appellee’s summary judgment evidence did not address any of the economic elements regarding the profitability of producing oil and gas from the Day Lease at any time. Appellants assert that the ap-pellee’s summary judgment evidence is deficient as a matter of law without this evidence. We disagree.

We recognized in Cannon that Texas courts have made an evidentiary distinction between claims alleging “total cessation of production” versus those involving a “cessation of production in paying quantities.” Cannon v. Sun-Key Oil Co., Inc., supra at 421-422; see Ridenour v. Herrington, 47 S.W.3d 117, 121-22 (Tex.App.Waco 2001, pet’n den’d); Bachler v. Rosenthal, 798 S.W.2d 646, 650 (Tex.App.-Austin 1990, writ den’d); Wainwright v. Wainwright, 359 S.W.2d 628, 630 (Tex.Civ.App.-Fort Worth 1962, writ ref'd n.r.e.). When there has been a “total cessation of production,” the two-prong “cessation of production in paying quantities” analysis does not apply. Ridenour v. Herrington, supra at 121-22; Bachler v. Rosenthal, supra at 650; Wainwright v. Wainwright, supra at 630. Accordingly, appellee did not need to address the profitability of obtaining production from the Day Lease because she alleged a complete cessation of production for several months.

When asked for information about the production from the Day Lease, appellants referred appellee to the records of the Railroad Commission. The Railroad Commission’s records indicated that no production occurred on the Day Lease for an 11-month period in 1998 and for a 3-month period in the early part of 1999. Appellants did not file any affidavits or other items of summary judgment evidence to dispute these records. Appellants contend that matters contained within appellee’s summary judgment evidence raised fact questions regarding the accuracy of the Railroad Commission’s data. Specifically, appellants rely on their own answers to interrogatories and to statements contained in Wayne Brown’s deposition wherein he indicated that the Railroad Commission had erroneously credited pro-duetion from the Day Lease to either the Martin Lease or the Day A Lease in the past. Appellants’ ability to raise these matters on appeal at this juncture is tenuous given the fact that they did not file a written response to appellee’s motion for summary judgment. See McCord v. Memorial Medical Center Hospital, 750 S.W.2d 362, 364 (Tex.App.-Corpus Christi 1988, no writ)(“Neither the trial court nor the appellate court has the duty to sift through the summary judgment record to see if there are other issues of law or fact that could have been raised by the non-movant but were not”). Assuming that appellants can rely upon Wayne Brown’s deposition responses, he did not identify any specific periods of time wherein production from the Day Lease was erroneously credited to the other two leases. Furthermore, the records from the Railroad Commission indicate that no production occurred on any of the three leases in the months of July, August, September, and October of 1998.

We conclude that appellee established her entitlement to summary judgment on the issue of the expiration of the Day Lease for lack of production. Appellants’ second issue is overruled. The judgment of the trial court, as set out in the trial court’s severance order, is affirmed.

      .Appellee clearly delineated the nature of her various causes of action in her petition. She only sought the termination of the three leases under the Uniform Declaratory Judgment Act, TEX. CIV. PRAC. & REM. CODE ANN. § 37.001 et seq. (Vernon 1997). She asserted her breach of contract cause of action against Wayne Brown under a separate heading and paragraph.

      . Appellants filed their notice of appeal in Cause No. 3,586.

      . As per appellants' notice of appeal, the order of severance constitutes the final judgment in Cause No. 3,586.

      . The "Day Lease” is the designation used by the parties and the Railroad Commission of Texas to refer to the particular property leased for mineral exploration. Five written oil and gas leases were executed by the various mineral owners of the property to lease it for exploration. The terms and provisions of the written leases are identical in most material respects.

      . One of the leases was dated August 1, 1989, and the other four leases were dated February 19, 1990.

      . Appellee cited Bachler in her motion for summary judgment.

      . The Day Lease was assigned to appellant Roxie Brown, wife of appellant Wayne Brown, on August 15, 1998. Roxie Brown assigned the Day Lease to appellant Ron Dority on February 21, 2000.

      . Appellee included a large portion of the deposition transcript of Wayne Brown as part of her summary judgment evidence.

      . TEX.R.CIV.P. 197.3 provides that answers to interrogatories may only be used against the responding party. Using a party’s interrogatory answers in that party's favor by relying on them to defeat a summary judgment is improper. Yates v. Fisher, 988 S.W.2d 730, 731 (Tex.1998)(construing former TEX. R.CIV.P. 168(2)).


author: JIM R. WRIGHT, Justice.

text:
    In the Matter of the MARRIAGE OF Deborah POWELL and Michael Powell.
    No. 11-04-00142-CV.
    Court of Appeals of Texas, Eastland.
    June 23, 2005.

      Gary D. Peak, Eastland, for Appellant.
    Kenneth N. Tarlton, Mineral Wells, for Appellee.
    Panel consists of: ARNOT, C.J., and WRIGHT, J., and McCALL, J.
   Opinion

JIM R. WRIGHT, Justice.

This is an appeal from an order on a motion to enforce. We affirm the order of the trial court.

Michael Powell and Deborah Powell were divorced in 2001. After a hearing on a prior motion to enforce, the trial court ordered Michael Powell to pay attorney’s fees in the amount of $1,000 to Kenneth N. Tarlton. Payment was due to be made on or before November 1, 2003.

On October 30, 2003, Michael Powell paid several agents to deliver 20 bank bags of unrolled pennies to Tarlton’s office. After contacting several banks, Tarlton located a bank who would redeem the 100,000 pennies. The bank charged Tarlton a $100 redemption fee, and Tarlton received a cashier’s check from the bank for a total of $900.

On November 4, 2003, Tarlton filed the present motion to enforce. At the hearing, Michael Powell informed the trial court that he was ordered to pay Tarlton $1,000 and that that is what he did. Michael Powell further stated:

But as far as Mr. Tarlton, which I do not respect in any shape, form, or fashion, I wanted to make a hardship upon him. He was delivered legal tender currency of $1,000. It would be several people that would love to have $1,000.

The record reflects that Michael Powell had instructed his agents to leave only the pennies at Tarlton’s office and to return the bank bags to the bank. However, Michael Powell’s agents were prevented from taking the bank bags from Tarlton’s office. The record further reflects that each bank bag weighed between 15 and 20 pounds and that it took Tarlton 2.7496 hours to collect and redeem the pennies. Tarlton stated that his hourly rate for non-court time was $150. The record also reflects that pennies had originally been collected as a fundraiser for Graford High School and had not been rolled.

The trial court declined to hold Michael Powell in contempt and found his “choice of conduct to be frivolous and ridiculous.” The trial court then ordered Michael Powell to pay the $100 bank redemption fee, an additional $350 in attorney’s fees, and court costs totaling $83. The trial court further ordered that all sums be paid by Michael Powell to Tarlton by cashier’s cheek, by money order, or by cash in the following denominations of U.S. Reserve Notes: five $100 bills, one $20 bill, one $10 bill, and three $1 bills.

In his sole issue on appeal, Michael Powell contends that the trial court had no legal basis to order him to pay the $100 bank redemption fee, the $350 in additional attorney’s fees, and the $83 in court costs. We disagree.

The trial court has inherent power which it may use to aid in the exercise of its jurisdiction, in the administration of justice, and in the preservation of its independence and integrity. Eichelberger v. Eichelberger, 582 S.W.2d 395, 398 (Tex.1979). The trial court has vast discretion to maintain control of the proceedings before it, to expedite the proceedings, and to prevent what it considers to be the unnecessary use of its time or resources. See Dow Chemical Company v. Francis, 46 S.W.3d 237, 240-41 (Tex.2001).

The record before this court reflects that the trial court acted within its discretion. The issue is overruled.

The order of the trial court is affirmed.