author: GUADALUPE RIVERA, Justice.

text:
    CELADON TRUCKING SERVICES, INC., Appellant/Cross-Appellee, v. Mario MARTINEZ, Appellee/Cross-Appellant.
    No. 08-07-00313-CV.
    Court of Appeals of Texas, El Paso.
    March 24, 2010.
    Rehearing Overruled June 30, 2010.

      Steven L. Hughes, Mounce, Green, Myers, Safi, Paxson & Galatzan, El Paso, TX, for Appellant.
    John P. Mobbs, Attorney at Law, El Paso, TX, for Appellee.
    Before McCLURE, J., RIVERA, J., and GUADERRAMA, Judge.
   OPINION

GUADALUPE RIVERA, Justice.

Celadon Trucking Services, Inc. appeals from a judgment entered in favor of Mario Martinez. Because we conclude that the Indiana Workers’ Compensation Board had exclusive jurisdiction of Martinez’s claims, we reverse and render judgment dismissing his suit.

FACTUAL SUMMARY

Mario Martinez, who lives in El Paso, applied for a job as a truck driver with Celadon at its El Paso terminal. Celadon is a trucking company with its headquarters in Indiana. After being hired, Martinez traveled to Indianapolis for orientation. Celadon paid for his trip and housed him in a dormitory during the three day orientation. While at orientation, Martinez signed an agreement with Celadon’s subsidiary, Celadon Trucking Company of Indiana, Inc., entitled “Worker’s Compensation Acknowledgement <& Agreement” which provided that Martinez’s employment was “principally localized in Indiana” and Indiana workers’ compensation law would apply to the settlement of any claim arising out of any job related injury. Martinez does not read English and he did not understand the documents presented to him, but he did not ask anyone to translate the documents nor did he tell anyone he could not understand them. Martinez signed the documents because he needed the job. After orientation concluded, Cela-don provided Martinez with a truck and he returned to El Paso. Martinez’s designated route covered several Texas cities but he sometimes drove to other states.

In August 13, 2001, Martinez suffered on-the-job injuries to his back and leg as the result of a vehicular accident in Sweet-water, Texas. After he received emergency treatment, another Celadon truck driver who was passing through transported him home. Celadon is self-insured for workers’ compensation purposes in Indiana but it is not a qualified self-insurer in Texas. Celadon’s workers’ compensation manager, Audrey Manning, called Martinez two days after the accident and told him that his claim would be handled under Indiana law pursuant to the agreement he had signed, he would receive benefit checks, Celadon would pay for his medical care, and Celadon had the right to direct his medical care. Manning also told him to go to the Eastside Medical Care Center in El Paso for initial treatment. Manning filed a report of injury that same day and forwarded it to Celadon’s third-party claims administrator, JWF Specialty Company. Karen Salwowski, a JWF employee, handled Martinez’s claim. On August 27, 2001, JWF filed a form entitled “Agreement to Compensation of Employee and Employer” with the Indiana Workers’ Compensation Board reflecting Martinez would be compensated weekly at a certain amount while off work. The benefit checks were deposited directly into Martinez’s bank account.

Martinez complied with Manning’s instructions and initially received treatment at the Eastside Medical Clinic. The doctors’ work status reports restricting Martinez from all work were forwarded to Manning. MRIs of the knee and back were performed on August 20, 2001 and reflected that Martinez had a herniated disc in his lower back and joint effusion with early bursitis in the knee. Consequently, Martinez was referred to an El Paso orthopedic surgeon, Dr. Eric Sides, who restricted Martinez from all work. On August 27, 2001, Manning sent a six-page fax to Salwowski with the notation, “Mario is wanting surgery. We need to bring Mario to Indy. See Dr. Lorber.” Manning explained that she wanted Martinez to get a second opinion in Indianapolis before he underwent surgery.

On October 4, 2001, Manning authorized Salwowski to hire a nurse practitioner, Beth Bader, to assist with Martinez’s claim. Bader referred Martinez to Dr. Angelo Romagosa, who is a board certified in physical medical and rehabilitation and she asked Dr. Romagosa to provide detailed information about Martinez’s medical condition and progress. On October 22, 2001, Dr. Romagosa provided a detailed report to Bader. He diagnosed Martinez with a lumbar strain, a herniated disc, aggravation of a facet joint in the lower back, and a knee injury. In his opinion, Martinez’s prognosis for recovery was good. Dr. Romagosa stated it would be two to three months before he would be able to determine when Martinez could return to light duty. Because Martinez was experiencing severe spasms in his back and radicular pain, Martinez would not be able to return to light duty immediately, but Dr. Romagosa hoped that with treatment Martinez would be able to return to job as a truck driver in six months. Bader instructed Dr. Romagosa to take over Martinez’s treatment and he proceeded to treat Martinez with corticosteroid injections in the knee and back as well as physical therapy. Dr. Romagosa also prescribed anti-inflammatory and pain medications. Manning received a copy of Dr. Romagosa’s letter.

It is Celadon’s policy to bring drivers to Indiana for light duty work when a light duty release is obtained. The policy has several purposes but the main reason is for medical treatment. On October 30, 2001, Salwowski instructed Bader to set up an appointment for Martinez to see Dr. John Lomas at Methodist Occupation Health in Indianapolis. Salwowski also told Bader that she needed to get a light duty release for Martinez from Dr. Roma-gosa. On October 31, 2001, Bader called Dr. Romagosa’s office and told the staff she needed return to work restrictions “now.” Bader spoke with Dr. Romagosa about her request for Martinez to travel to Indiana but he did not believe it was a good idea due to Martinez’s symptoms. Bader told Dr. Romagosa that Celadon was insisting on Martinez traveling to Indiana for further treatment. She also said that Martinez would continue to receive treatment only if he flew to Indiana. Bader instructed Dr. Romagosa to complete the Texas Workers’ Compensation Work Status Report form which would serve as a prescription allowing Martinez to fly. Dr. Romagosa specifically told Bader that Martinez was not ready to return to light duty and he was only clearing Martinez to fly. With Bader’s guidance, Dr. Romagosa completed the form writing in the section titled “other restrictions” that Martinez “may fly by plane.” He left blank the section entitled “work status information” which would have indicated that Martinez’s medical condition would allow him to return to work on a given date with the restrictions listed in Section III of the form, but he listed various work restrictions in Section III. Bad-er forwarded the form to Salwowski and Manning.

Although she had received a copy of Dr. Romagosa’s October 22, 2001 letter, Manning interpreted the form as a light duty release and called Martinez on November 2, 2001 to inform him that Dr. Romagosa had released him to light duty. She told him that Celadon had a light duty position available in Indianapolis and if he did not accept the position, his benefits would be terminated. Martinez also spoke with Bader about the letter. She told him that if he did not go to Indiana, his benefits would be cut and his therapy would cease. Martinez went to Indianapolis on November 5, 2001 because he felt he had no choice.

Celadon housed Martinez in a large dormitory in a fenced compound. He spoke with Manning and she represented to him that he had been released to light duty. When he asked to see the release, Manning refused to show it to him. At this point, Martinez began to suspect that Manning was lying to him. He saw Dr. Lomas the following day and was released to light duty. Manning put Martinez to work.

On January 10, 2002, Bader notified Manning and Salwowski that Martinez had been scheduled for a functional capacity evaluation. She expected Martinez to be placed at maximum medical improvement (MMI) and that he would be discharged from medical care. Martinez attended the functional capacity evaluation on January 11 and a report was sent to Dr. Lomas. When Martinez saw Dr. Lomas on January 15, Dr. Lomas concluded that Martinez’s functional abilities were permanent and released him from care. Celadon terminated Martinez’s employment the same date because he had been released from workers’ compensation with permanent restrictions.

After receiving Dr. Lomas’ written diagnosis that Martinez had a 7% permanent impairment, Salwowski prepared a settlement agreement entitled “Agreement to Compensation of Employee and Employer.” The agreement is on Indiana state form 1043. According to the agreement, Martinez had a 7% PPI and he would be paid $9,100 in a lump sum upon approval of the Indiana Workers’ Compensation Board. Martinez met with Manning and presented the agreement to him. She told him that he had reached maximum medical improvement and he did not need any more treatment. Manning told Martinez that if he did not sign the agreement, he would get nothing, but if he signed it, he would get the money and Celadon would send him home to his family. Martinez signed the documents and returned to his family the same day. The Indiana Workers’ Compensation Board approved the agreement. Martinez was unable to continue with his therapy following his termination because he could not afford it.

Martinez filed suit against Celadon alleging non-subscriber negligence, wrongful termination, and fraud. The trial court granted partial summary judgment on all causes of action other than the fraud and wrongful termination. A jury returned a verdict in favor of Martinez on the fraud claim and in favor of Celadon on the wrongful termination claim. The jury awarded actual damages in the total amount of $354,362.50 and punitive damages in the amount of $5,000,000. The trial court rendered judgment on the verdict with the exception of the punitive damages award which the court reduced to $3,000,000. Both parties filed notice of appeal.

SUBJECT MATTER JURISDICTION

We first address Issue Two because it challenges the trial court’s subject matter jurisdiction. Celadon contends that the case should have been dismissed because the Indiana Workers’ Compensation Board had exclusive jurisdiction over Martinez’s claims and Martinez failed to exhaust his administrative remedies. Alternatively, Celadon argues that Martinez did not exhaust his administrative remedies with <⅛ Texas Division of Workers’ Compensation. It is undisputed that Martinez did not present his tort claims before either the Indiana Board of Workers’ Compensation or the Texas Division of Workers’ Compensation.

We presume that district courts are authorized to resolve disputes unless the constitution or other law conveys exclusive jurisdiction on another court or administrative agency. In re Southwestern Bell Telephone Company, L.P., 235 S.W.3d 619, 624 (Tex.2007); In re Entergy Corp., 142 S.W.3d 316, 322 (Tex.2004). An agency has exclusive jurisdiction when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed. In re Southwestern Bell, 235 S.W.3d at 624-25; Subaru of America, Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212, 221 (Tex.2002). Whether an agency has exclusive jurisdiction is a matter of law subject to de novo review. In re Southwestern Bell, 235 S.W.3d at 625. If an agency has exclusive jurisdiction to resolve a dispute, a party must first exhaust administrative remedies before a trial court has subject matter jurisdiction. Id.

Indiana Workers’ Compensation Board

Celadon maintains that it proved as a matter of law that Indiana law applies in this case and the Indiana Workers’ Compensation Board had exclusive jurisdiction of Martinez’s tort claims pursuant to Indiana Code Section 22-3-4-12.1(a):

The workers’ compensation board, upon hearing a claim for benefits, has the exclusive jurisdiction to determine whether the employer, the employer’s worker’s compensation administrator, or the worker’s compensation insurance carrier has acted with a lack of diligence, in bad faith, or has committed an independent tort in adjusting or settling the claim for compensation.

lnd.Code § 22-3-4-12.1(a). This statute requires that a claimant first present his tort claims to the Indiana Workers’ Compensation Board and obtain an adverse ruling before invoking the jurisdiction of the courts. Sims v. United States Fidelity & Guaranty Company, 782 N.E.2d 345, 350-51 (Ind.2003).

As we have noted, Martinez signed an agreement which states that his employment is “principally localized in Indiana” and that Indiana workers’ compensation law would apply to the settlement of any claim arising out of any job related injury. Section 406.073(a) of the Texas Labor Code expressly sanctions such an agreement: “An employee whose work requires regular travel between this state and at least one other jurisdiction may agree in writing with the employer on the principal location of the employment.” Tex.Labor Code Ann. § 406.073(a)(Vernon 2006).

The agreement signed on December 2, 2001 was between Celadon’s subsidiary, Celadon Trucking Services of Indiana, Inc., and Mario Martinez. Celadon’s workers’ compensation manager, Audrey Manning, signed the agreement on behalf of the subsidiary, and that company is identified in the agreement as Martinez’s employer. Likewise, in the documents filed by JWF with the Indiana Workers’ Compensation Board, Martinez’s employer is identified as Celadon Trucking Services of Indiana. Martinez filed suit against the parent company, Celadon Trucking Services, which he identified in his pleadings as his employer. It is undisputed that Martinez’s claim was submitted to the Indiana Workers’ Compensation Board and he accepted workers’ compensation benefits paid to him for his on-the-job injury.

The jury found that Celadon committed fraud against Martinez by falsely representing that he had been released to light duty by his doctor. Martinez proceeded at trial on the theory that Celadon made this false representation to force him to travel to Indiana where Martinez could be seen by Celadon’s doctors, be subjected to a premature functional capacity evaluation, and be terminated following settlement of his worker’s compensation claim. Martinez’s fraud allegations amount to an assertion of bad faith on the part of Celadon in adjusting or settling his claim for compensation. If the Indiana statute applies, it would require Martinez to have first presented his fraud claim to the Indiana Workers’ Compensation Board and obtained an adverse ruling before filing suit in Texas. Martinez presents four arguments why the statute does not apply here.

First, he argues that Celadon has failed to raise any issue on appeal challenging the trial court’s ruling that Indiana law does not apply. Celadon filed a motion requesting the application of Indiana law but the trial court denied it. This court denied Celadon’s mandamus petition finding that Celadon had an adequate remedy by appeal. In re Celadon Trucking Services, Inc., 162 S.W.3d 769 (Tex.App.-El Paso 2005, orig. proceeding). This Court expressly stated that the denial of mandamus relief should not be construed as a ruling on the merits of the choice of law issue presented by Celadon. Whether Indiana law applies is implicit in Celadon’s contention that the Workers’ Compensation Board has exclusive jurisdiction of Martinez’s fraud claim. Finally, to the extent Martinez contends that Celadon waived the issue by failing to raise it on appeal, the argument is without merit. A contention that the trial court lacked subject matter jurisdiction cannot be waived and can be raised for the first time on appeal. Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex.2008).

Second, Martinez relies on expert testimony to establish that the Indiana Workers’ Compensation Board does not have jurisdiction over his claims. George Cori-den, a licensed Indiana attorney who served on the Indiana Workers’ Compensation Board for several years, testified that Indiana did not have jurisdiction over Martinez’s injury. Coriden testified that jurisdiction is based upon the employee’s residence and where the work is actually performed. In this case, Coriden viewed Martinez’s contact with Indiana as minimal. Further, it was his opinion that the parties could not confer jurisdiction on the Indiana Workers’ Compensation Board by agreement. Whether the Indiana Workers’ Compensation Board has exclusive jurisdiction of Martinez’s claims is a question of law subject to de novo review. We are not bound by the testimony of an expert witness on the subject but rather we are bound to apply the law. Martinez does not cite any Indiana authority prohibiting an agreement such as this one. While Cori-den testified that Martinez is an employee in the state of Texas for workers’ compensation purposes, Texas permits an employee to agree in writing with the employer on the principal location of the employment. Tex. LaboR Code Ann. § 406.073(a).

Third, Martinez maintains that the Indiana Workers’ Compensation Board’s exclusive jurisdiction pursuant to Section 22-3-4-12.1(a) is triggered only “upon hearing a claim for benefits.” Since the Board did not conduct a hearing relative to Martinez’s claim, he reasons that the statute does not apply. Martinez does not direct us to any authority in support of his position that the “hearing” referred to in the statute means a hearing attended by the parties and their attorneys. The Indiana Workers’ Compensation Act expressly provides for disputes to be resolved by a single member of the board in a summary proceeding. See Ind.Code § 22-3-4-6 (providing that the Board shall hear the parties at issue, their representatives and witnesses, and shall .determine the dispute in a summary manner); Rork v. Szabo Foods, 436 N.E.2d 64, 67 (Ind.1982)(stating that workers’ compensation claims are heard and determined by a single member of the Workers’ Compensation Board; the approach “effectuates a desirable and pragmatic goal in the administration of the Worker’s Compensation Act-the speedy disposition of claims”); see also Davis v. Webster, 136 Ind.App. 286, 290, 198 N.E.2d 883 (Ind.App.1964)(the Industrial Board of Indiana is an administrative agency, not a court, and it prescribes its own procedures which are summary and informal in nature). The statute does not precisely define what constitutes a hearing but the Workers’ Compensation Board certainly had before it Martinez’s claim for benefits when it considered and approved the agreements submitted to it. Further, the statute itself contemplates that it would apply when a party settles his workers’ compensation claim as it provides for exclusive jurisdiction over a claim of bad faith on the part of the employer in settling a claim for compensation. Finally, construing the statute in the manner suggested by Martinez would have inconsistent results. An employee who enters into a settlement of his workers’ compensation claim could maintain a tort suit against his employer without first presenting the claim to the Workers’ Compensation Board, but an employee whose benefits are determined by the Board following some contested proceeding would be required to first exhaust his administrative remedies. We fail to perceive any basis for treating the two classes of claimants differently.

Finally, Martinez contends that Ce-ladon was not a party to any “claim for benefits” before the Indiana board because JWF initiated workers’ compensation proceedings only in the name of the subsidiary, Celadon Trucking of Indiana. The Indiana Worker’s Compensation Act contemplates that one worker may simultaneously have two employers. GKN Co. v. Magness, 744 N.E.2d 397, 402 (Ind.2001). Further, a parent corporation and its subsidiaries are considered joint employers of the corporation’s, the parent’s, or the subsidiaries’ employees for purposes of Indiana Code Sections 22-3-2-6 and IC 22-3-3-31. Ind.Code § 22-3-6-1(a). Thus, Celadon was a joint employer with Celadon Trucking of Indiana.

Martinez’s petition alleges that Celadon committed fraud by falsely representing that his doctor had released him to light duty. This allegation states the type of claim which falls within the exclusive jurisdiction of the Indiana Workers’ Compensation Board under Section 22-3-4-12.1(a). Cf. Spencer v. Bridgewater, 757 N.E.2d 208, 212 (Ind.Ct.App.2001)(In the context of the denial of insurance claims, “a finding of bad faith requires evidence of a state of mind reflecting a dishonest purpose, moral obliquity, furtive design, or ill will.”). Consequently, we conclude Martinez was required to present his claims to the Indiana Workers’ Compensation Board before filing suit. Because he failed to do so, the trial court did not have subject matter jurisdiction of this claim. We sustain Issue Two.

THE NEGLIGENCE CAUSE OF ACTION

In his cross-point, Martinez asserts that the trial court erred by granting summary judgment on his negligence cause of action. Martinez asserted Celadon breached its duty to provide him with safe machinery and a safe place to work and the breach of these duties proximately caused the accident and his resulting injuries. More specifically, Martinez alleged Celadon provided him with a defective tire and rim on the vehicle, it failed to secure the tire and rim to the vehicle, it failed to inspect the tire and rim, it failed to warn Martinez that it had not adequately secured the tire and rim, it failed to perform preventive maintenance on the vehicle, and it failed to supervise the mechanics and maintenance personnel. Celadon filed a motion seeking both traditional and no evidence summary judgment on all of Martinez’s causes of action including the negligence claim. See Tex.R. Crv. P. 166a(i).

When reviewing a no-evidence motion for summary judgment, we must disregard all contrary evidence and inferences, and review the evidence in the light most favorable to the non-movants. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003); Walker v. Presidium, Inc., 296 S.W.3d 687, 692 (Tex.App.-El Paso 2009, no pet.). Once the moving party specifically states the elements as to which there is no evidence, the burden shifts to the non-movants to produce summary judgment evidence raising a genuine issue of material fact regarding each element challenged. Walker, 296 S.W.3d at 692-93. If the non-movants produce more than a scintilla of evidence regarding the challenged element, a genuine issue of material fact is raised. Id. at 693. Less than a scintilla of evidence exists if the evidence is so weak as to create no more than a mere surmise or suspicion. King Ranch, Inc., 118 S.W.3d at 751. However, when the evidence rises to a level that enables reasonable minds to differ in their conclusions, then more than a scintilla of evidence exists. Id. If the non-movants do not produce more than a scintilla of evidence to raise a genuine issue of material fact, the trial court “must” grant the motion. Id.; Larned v. Gateway East, Inc., 186 S.W.3d 597, 601 (Tex.App.-El Paso 2006, no pet.); see also Tex.R. Civ. P. 166a(i).

A negligence cause of action has four elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages (4) proximately caused by the breach. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex.2005); D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). An employer has a duty to use ordinary care in providing a safe workplace. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006); Aleman v. Ben E. Keith Company, 227 S.W.3d 304, 310 (Tex.App.-Houston [1st Dist.] 2007, no pet.). An employer must furnish safe machinery and instrumentalities and provide adequate assistance under the circumstances for the performance of required work. Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 186 n. 45 (Tex.2004); Werner v. Colwell, 909 S.W.2d 866, 869 (Tex.1995); Aleman, 227 S.W.3d at 311. An employee suing an employer for negligence bears the burden of presenting legally sufficient evidence that the employer required the employee to work “where a reasonably prudent employer would not have done so.” Werner, 909 S.W.2d at 869. An employer, however, is not an insurer of its employees’ safety. Elwood, 197 S.W.3d at 794; Aleman, 221 S.W.3d at 311.

Generally, courts will find sufficient proof of causation when lay testimony establishes a sequence of events that provides a strong, logically traceable connection between the event and the condition. Morgan v. Compugraphic Corp., 675 S.W.2d 729, 738 (Tex.1984). Proof other than expert testimony will constitute some evidence of causation only when a layperson’s general experience and common understanding would enable the layperson to determine from the evidence, with reasonable probability, the causal relationship between the event and the condition. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex.2006). Expert testimony is required when an issue involves matters beyond jurors’ common understanding. Id. Whether expert testimony is necessary to prove a matter or theory is a question of law. Id.

In his summary judgment response to this issue, Martinez relied solely on his deposition testimony in which he described the accident. Martinez testified that he heard a big “boom” and a wheel came off of the trailer. The steering wheel started to shake and the truck pulled to the right side of the road. Martinez could not control the truck and it struck signs along the road before hitting the pillars or “walls” of a bridge. Martinez’s pleadings and summary judgment response assume that the wheel coming off of the truck is what caused him to lose control of the vehicle but he did not present any evidence to support that allegation. Even assuming that the accident was caused by the wheel coming off of the truck, there is no evidence that it happened due either to a defect in the wheel or because it had not been properly secured to the vehicle. Further, there is no evidence that Celadon failed to inspect the vehicle, failed to perform preventive maintenance, or failed to warn Martinez that the tire had not been adequately secured. Consequently, there is no evidence that Celadon breached its duty to provide him with safe equipment or a safe workplace.

Nor did Martinez present any evidence that Celadon’s alleged breach proximately caused his injuries. See Aleman, 227 S.W.3d at 311 (employee seeking damages from employer in negligence action for broken leg sustained when employee slipped and fell on ramp leading from his truck’s trailer to the ground during a delivery produced no evidence, in opposition to no-evidence summary judgment motion, that employer’s failure to properly maintain its trailers was the cause in fact of his injury; although employee testified that he slipped on the ramp because his feet were wet from water on the floor of trailer that leaked from refrigeration unit inside the trailer, such testimony was only evidence that failure to maintain trailer caused water to be present on trailer floor, not that such a failure caused his injury). The trial court did not err by granting summary judgment on this cause of action. We overrule Martinez’s first cross-point.

Dismissal or Abatement

Having sustained Issue Two, it is unnecessary to address the remaining issues raised on appeal by either party. We must now determine whether Martinez’s claims should have been dismissed or if abatement is the correct remedy. If a claim is not within a court’s jurisdiction, and the impediment to jurisdiction cannot be removed, then it must be dismissed. American Motorists Insurance Company v. Fodge, 63 S.W.3d 801, 805 (Tex.2001). On the other hand, if the impediment to jurisdiction could be removed, then the court may abate proceedings to allow a reasonable opportunity for the jurisdictional problem to be cured. Id. The time for Martinez to pursue review of his claims by the Indiana Workers’ Compensation Board has expired. Consequently, the impediment to jurisdiction cannot be removed. We therefore reverse the judgment of the trial court and render judgment dismissing Martinez’s suit for lack of jurisdiction.

McCLURE, J., not participating.

GUADERRAMA, Judge, sitting by assignment.

      . Celadon has other Texas facilities including Laredo and Waxahachie.

      . Indiana Code 22-3-2-6 contains an exclusivity provision: "The rights and remedies granted to an employee subject to IC 22-3-2 through IC 22-3-6 on account of personal injury or death by accident shall exclude all other rights and remedies of such employee, the employee’s personal representatives, dependents, or next of kin, at common law or otherwise, on account of such injury or death, except for remedies available under IC 5-2-6.1."

      . Indiana Code 22-3-3-31 relates to the apportionment of an award when an employee is in the joint service of two or more employers.


source: Caselaw Access Project

author: ANN CRAWFORD McCLURE, Justice.

license: Public Domain

text:
    R. Wayne JOHNSON, Appellant, v. Paul SLOAN, Janet Sells, Kenneth Holt, Robbie Stone, Kendall Rickerson, V.L. Brisher, and Deanna Davis, Appellees.
    No. 08-09-00077-CV.
    Court of Appeals of Texas, El Paso.
    March 24, 2010.
    R. Wayne Johnson, Amarillo, TX, pro se.
    Deanna Davis, Amarillo, TX, pro se.
    Before McCLURE, J., RIVERA, J., and SALAS-MENDOZA, Judge.
   OPINION

ANN CRAWFORD McCLURE, Justice.

R. Wayne Johnson, pro se, appeals from an order dismissing his lawsuit against Paul Sloan, Janet Sells, Kenneth Holt, Robbie Stone, Kendall Rickerson, V.L. Brisher, and Deanna Davis. We affirm.

FACTUAL SUMMARY

Johnson is an inmate in the Texas Department of Criminal Justice — Institutional Division. He filed suit against Appel-lees alleging they had violated his First, Fifth, and Fourteenth Amendment rights by returning his mail to him and not properly processing his grievances. Appellees filed notice with the trial court that Johnson is precluded from filing the lawsuit because he has previously been declared a vexatious litigant under Chapter 11 of the Texas Civil Practice and Remedies Code and he has not obtained permission to file suit from a local administrative judge. Following a hearing, the court dismissed Johnson’s suit pursuant to Section 11.103(b).

MANDAMUS

Johnson raises four issues regarding our denial of his mandamus petition. See In re R. Wayne Johnson, No. 08-08-00354-CR, 2009 WL 222374 (Tex.App.-El Paso Jan. 29, 2009, orig. proceeding)(not designated for publication). In this direct appeal from the trial court’s dismissal order, we are unable to reconsider our ruling on the mandamus petition even if we were inclined to do so. We overrule Issues One, Twelve, Thirteen, and Fourteen.

AUTHORITY OF ATTORNEY GENERAL

In Issue Two, Johnson maintains that the dismissal order is void because the attorney general is not authorized to answer the suit on behalf of Appellees. In Issues Three through Nine, he complains that the original order finding him to be a vexatious litigant is void for the same reason, and therefore, the dismissal order is void because it is based on a void order. He directs us Section 402.021 of the Texas Government Code in support of his arguments. Section 402.021 provides that “[t]he attorney general shall prosecute and defend all actions in which the state is interested before the supreme court and courts of appeals.” Tex. Gov’t Code Ann. § 402.021 (Vernon 2005). Since Section 402.021 does not mention district courts, Johnson reasons that the attorney general is not authorized to appear in district courts. Other than his reference to Section 402.021, Johnson does not provide any authority for his argument that a judgment or order is rendered void if an attorney appearing in the case was not authorized to represent one or more of the parties. Johnson has waived his arguments by failing to adequately brief them. See Tex.R.App.P. 38.1(i)(requiring brief to contain appropriate citations to authority); Myrick v. Enron Oil and Gas Co., 296 S.W.3d 724, 729 (Tex.App.-El Paso 2009, no pet. h.). We overrule Issues Two through Nine.

DENIAL OF DUE PROCESS

In Issue Ten and Eleven, Johnson contends that a summary dismissal violates due process. He cites Creel v. District Attorney for Medina County, Texas, 818 S.W.2d 45 (Tex.1991) for this proposition. In Creel, the petitioner filed a petition for writ of mandamus in the trial court to compel the Medina County District Attorney to release a copy of a public document pursuant to the Open Records Act. The trial court sua sponte dismissed Creel’s petition and the court of appeals affirmed. Creel v. District Attorney for Medina County, Texas, 804 S.W.2d 628 (1991). The Texas Supreme Court reversed, holding that Creel was denied due pi'ocess of law because his mandamus petition was denied without notice or a hearing. Creel, 818 S.W.2d at 46. The instant case is distinguishable because the record does not reflect that Johnson was denied due process.

The Office of Court Administration is required to maintain a list of vexatious litigants subject to prefiling orders under Section 11.101. Tex.Civ.Prac. & Rem.Code Ann. § 11.104(b)(Vernon 2002). That list reflects that Johnson was found to be a vexatious litigant on June 14, 2001 in Cause Number B-01-1159-0-CV-B by the 156th District Court of Bee County, Texas. Thus, Johnson was required to obtain permission of a local administrative judge to file suit. See Tex.Civ.Prao. & Rem.Code Ann. § 11.102(a). He is obviously aware of this requirement. See e.g., In re R. Wayne Johnson, No. 07-09-0035-CV, 2009 WL 2632800 (Tex.App.-Amarillo Aug. 27, 2009, orig. proceeding); In re R. Wayne Johnson, No. 07-07-0431-CV, 2009 WL 2225844 (Tex.App.-Amarillo 2009 July 27, 2009, orig. proceeding); In re R. Wayne Johnson, No. 07-07-0245-CV, 2008 WL 2681314 (Tex.App.-Amarillo 2008 July 9, 2008, orig. proceeding).

A local administrative judge may grant a vexatious litigant permission to file suit only if it appears to the judge that the litigation has merit and has not been filed for the purposes of harassment or delay. Tex.Civ.Prac. & Rem.Code Ann. § 11.102(a). Section 11.103 prohibits a clerk of a court from filing litigation presented by a vexatious litigant subject to a prefiling order. Tex.Civ.Prac. & Rem.Code Ann. § 11.103(a). But if the clerk mistakenly files pleadings without an order from the local administrative judge, any party may file with the clerk and serve on the plaintiff and the other parties to the suit a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order under Section 11.101. Tex.Civ.Prac. & Rem.Code Ann. § 11.103(b). Upon the filing of the notice, the court is required to dismiss the suit unless the plaintiff, within ten days after the notice is filed, obtains an order from the local administrative permitting the filing of the litigation. Tex.Civ.PRAC. & Rem. Code Ann. § 11.103(b).

The notice filed by the attorney general on April 28, 2008 includes a certificate of service stating that a copy of the notice was served on Johnson by certified mail. Johnson does not contend he did not receive the notice. To avoid dismissal, Johnson only had to obtain permission of a local administrative judge to file the suit and file a copy of the order with the trial court. The record does not reflect that Johnson obtained permission or even attempted to obtain permission. Although the statute provides that the suit can be dismissed with ten days of the filing of the notice, the trial court did not dismiss Johnson’s suit until February 4, 2009. Under these circumstances, we conclude that Johnson has not been denied due process. We overrule Issues Ten and Eleven and affirm the dismissal order.

SALAS-MENDOZA, Judge, sitting by assignment.

      . We note that the Amarillo Court of Appeals has considered and rejected Johnson's arguments regarding the authority of the attorney general to represent the State in district court. See In re R. Wayne Johnson, No. 07-07-0431-CV, 2009 WL 2225844 (Tex.App.Amarillo 2009, July 27, 2009, orig. proceeding)(holding that Section 402.021 is not the only basis for the Attorney General's representation of the State in litigation), citing Tex. Const art. IV, § 22 and EL Paso Electric Company v. Texas Department of Insurance, 937 S.W.2d 432, 438 (Tex.1996).


text:
    Sylvia RIVAS, Appellant, v. Juan RIVAS, Appellee.
    No. 08-08-00352-CV.
    Court of Appeals of Texas, El Paso.
    April 7, 2010.
    Patrick Bramblett, Bramblett & Associates, El Paso, TX, for Appellant.
    David Biagas, El Paso, TX, for Appellee.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is an appeal from a post-answer default in a marital dissolution proceeding. Sylvia Rivas brings seven points of error challenging the default decree of divorce. We have not been favored with briefing by her husband, Juan Rivas. Finding procedural error, we reverse and remand for trial.

FACTUAL SUMMARY

The marriage between the parties endured for twenty-two years and the divorce litigation churned for a torturous six years. Sylvia filed suit for divorce on April 30, 2002. At some point, Juan also filed for divorce and the actions were consolidated in Cause No. 2002CM2706. The record reveals that Sylvia was represented by four different attorneys and that the case was set and reset on multiple occasions.

The clerk’s record includes a January 8, 2008 “Order Resetting Final Hearing and Pretrial Conference.” The pretrial conference was set for May 9, 2008 and the final hearing was scheduled for June 11, 2008. On May 6, 2008, Sylvia filed a pro se motion for continuance alleging she had been unable to hire legal counsel despite consultation with eight attorneys. The very next document in the clerk’s record is another “Order Resetting Final Hearing and Pretrial Conference” in exactly the same format as the prior order. It is referenced within the docket sheet as well. This order, signed by Judge Alfredo Chavez on May 19, 2008, set the pretrial hearing for January 30, 2009 and a jury trial on the merits for March 2, 2009. A facsimile transmission verification report established that Juan’s attorney received the reset order on May 19, 2008 at 10:41a.m. Juan and his attorney appeared in court on June 11; Sylvia did not. The record reflects the following discussion between Judge Chavez and William McGlashan, the attorney for Juan:

THE COURT: We were previously here on what date Mr. McGlashan?
MR. McGLASHAN: It was May 9, Your Honor. We were before this court for a pretrial conference. Ms. Rivas appeared late, I believe, that day. I was here. We approached the bench. She had filed a motion to continue I guess and not sent me a copy, but dropped one off with the Court. And then I haven’t seen her since. Nor was a motion ever set for a continuance.
THE COURT: Refresh my memory as to my admonishments to her.
MR. McGLASHAN: Judge, this case has been going on since 2002. Ms. Rivas has gone through four layers, maybe five. And she was asking for a continuance because she couldn’t find counsel. And Your Honor was admonishing her to set it for a hearing and we would have that hearing. Otherwise, we are proceeding today.
THE COURT: Put your case on.

Neither the judge nor counsel referenced the order resetting the case for a jury trial in March 2009. Juan offered very brief testimony and the court granted a default judgment for divorce. We perceive this to be a mistake rather than intentional. But nevertheless, Sylvia relied to her detriment on a court order signed by Judge Chavez resetting the trial.

Sylvia filed a motion for new trial and was represented at that hearing by attorney Patrick Bramblett. David Biagas, appearing on behalf of Juan, advised the court that “there is a problem, Judge, that we didn’t receive notice of the resetting or notice of the jury trial, which is why we are proceeding or Mr. McGlashan proceeded to get the default divorce in June.” Bramblett tendered to the court a copy of the reset order and the facsimile verification. Judge Chavez ruled:

What I’m going to do is I’m going to look at the procedural history that’s on the computer, try to reconcile with what you have presented today. I may even employ the services of my court reporter. Because everything we did was on the record. And if I’m wrong, then I’ll grant your motion. But if I’m correct, then I’ll have to deny it.

By letter dated December 2, 2008, Judge Chavez advised the parties of his ruling:

Having reviewed the court docket and the court reporter’s record, the court finds the following.
On January 8, 2008, the matter was set for a pre-trial on May 9, 2008 and final hearing on June 11, 2008.
At a May 9, 2008 pre-trial conference, Ms. Rivas appeared and filed a motion for continuance. She was admonished by the court to set it for a hearing, otherwise we would proceed on June 11, 2008 with the final hearing.
On June 11, 2008, Ms. Rivas did not appear. Hearing was held and divorce was granted.

Motion for new trial is denied. This letter does not explain the written reset order, nor the entry on the court’s docket sheet.

In her first three points of error, Sylvia complains that the default hearing denied her due process of law, that the trial court erred in denying her motion for new trial, and that the denial of her motion constitutes an abuse of discretion. In Points of Error Four through Seven, she challenges the sufficiency of the evidence to support the characterization and division of property, and the sufficiency of the evidence regarding conservatorship of a child.

PROCEDURAL ERROR

For purposes of our analysis, we will consider the first three issues together as a complaint of procedural error. Citing Rule 245, Sylvia argues that a trial court may set a contested case on its own motion and may reset a contested case to a later date on any reasonable notice to the parties. Tex.R.Civ.P. 245. But once a case has been set, she continues, a reversion to an earlier hearing date deprives a litigant of the constitutional right to attend, to proffer evidence, to make objections, and to contest the issues.

Standard of Review

A trial court’s decision on a motion for new trial is reviewed for an abuse of discretion. Munoz v. Rivera, 225 S.W.3d 23, 26 (Tex.App.-El Paso 2005, no pet.), citing Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex.1987); American Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 239 (Tex.App.-El Paso, 1999, pet. denied). A trial court must set aside a default judgment when the movant satisfies the requirements articulated in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). Director, State Employees Workers’ Compensation Division v. Evans, 889 S.W.2d 266, 268 (Tex.1994); Texas Sting, Ltd., v. R.B. Foods, Inc., 82 S.W.3d 644, 650 (Tex.App.-San Antonio 2002, pet. denied). Craddock has been applied to post-answer defaults in which a defendant fails to appear for trial. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966). Sylvia must demonstrate that: (1) her failure to appear was not intentional or the result of conscious indifference; (2) she has a meritorious defense; and (3) the granting of a new trial will not operate to cause delay or injury. Evans, 889 S.W.2d at 268. Where the Craddock elements are satisfied, it is an abuse of discretion for the trial court to deny a motion for new trial. Evans, 889 S.W.2d at 268; Texas Sting, Ltd., 82 S.W.3d at 650.

Conscious Indifference

Sylvia bears the burden of proof to show that her failure to appear at trial was not the result of conscious indifference. Munoz, 225 S.W.3d at 28; Liberty Mut. Fire Ins. Co. v. Ybarra, 751 S.W.2d 615, 618 (Tex.App.-El Paso 1988, no writ). In determining whether her failure to appear was due to intentional disregard or conscious indifference, we must look to her knowledge and conduct. Evans, 889 S.W.2d at 269; Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex.1984). Conscious indifference has been defined as failing to take some action which would seem obvious to a person of reasonable sensibilities under the same circumstances. Id.; Johnson v. Edmonds, 712 S.W.2d 651, 652 (Tex.App.Fort Worth 1986, no writ). If the factual assertions in a movant’s affidavit are not controverted, the movant satisfies her burden if her affidavit sets forth facts that, if true, negate intentional or consciously indifferent conduct. Evans, 889 S.W.2d at 269; Strackbein, 671 S.W.2d at 38-39. In determining if the factual assertions are controverted, the court looks to all the evidence in the record. Evans, 889 S.W.2d at 269.

In her affidavit, Sylvia averred that she was not notified of the June 11 hearing; that she was given an order resetting the final hearing for a jury trial on March 2, 2009; and that she had not been notified of any other trial date. Juan was represented by McGIashan at trial and by Bia-gas at the hearing on the motion for new trial. Biagas asserted that McGIashan had no notice of the postponement:

And I believe, Judge, that what the years, ten years I’ve known Mr. Ortega and Mr. McGIashan, that they would not have proceeding [sic] to default if they had noticed [sic] that the case was reset. They relied on this notice that you sent out, Judge.

This statement does not controvert Sylvia’s affidavit. Admission of evidence showing a telephonic document transfer to the recipient’s current telecopier number gives rise to a presumption that notice was duly received by the addressee. Cf. Thomas v. Ray, 889 S.W.2d 237, 238 (Tex.1994) (construing Tex.R.Civ.P. 21a); accord Cliff, 724 S.W.2d at 780. In the absence of any proof to the contrary, the presumption has the force of a rule of law. Thomas, 889 S.W.2d at 238. No proof was offered to establish that Ortega and McGIashan did not receive the reset order. Given the status of the record and the facsimile verification of transmission to their office, we must hold that McGIashan had notice that the trial date had been postponed. We must likewise conclude that Sylvia had no notice that the postponement order had been sent in error, set aside, vacated, or in any other manner revoked such that the June 11 trial date had been resuscitated. In this peculiar posture, we agree with her argument that she in effect had no notice of the June 11 setting. When a party receives no notice of a trial setting, she satisfies the first prong of Craddock and need not meet the remaining two. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988); Texas Sting, Ltd., 82 S.W.3d at 650. To require otherwise would violate her federal due process rights under the Fourteenth Amendment. Peralta v. Heights Medical Center, Inc., 485 U.S. 80, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988). We sustain Points of Error One, Two, and Three. Our disposition renders it unnecessary that we consider her substantive evidentiary challenges. We reverse and remand for trial on the merits.


text:
    Kenneth Reven McCLAIN, Appellant, v. Jeffrey K. TERRY, Will Bueschel, et al., Appellees.
    No. 08-09-00041-CV.
    Court of Appeals of Texas, El Paso.
    April 22, 2010.

      Kenneth Reven McClain, Pine Knot, KY, pro se.
    Jeffrey K. Terry, Fort Worth, TX, pro se.
    Will Bueschel, Conoga Park, CA, pro se.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

ANN CRAWFORD McCLURE, Justice.

This is a pro se inmate’s appeal from a trial court’s orders finding that Kenneth Reven McClain is not indigent and dismissing his lawsuit with prejudice. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL SUMMARY

On November 12, 2008, Kenneth Reven McClain filed suit against Jeffrey K. Terry and Will Bueschel for personal injury and defamation pursuant to the Texas Civil Practice and Remedies Code. That same day, an ex parte application to proceed in forma pauperis signed by McClain was filed with the clerk. In his affidavit, McClain alleged that he has been inearcer-ated for the last three years, is unemployed, and has no income.

I further declare that the responses which I have made to questions and instructions below are true.
1.Have you received, within the past 12 months, any money from any of the following sources?
a. Business, profession or form of self-employment? No
b. Rent payments, interest or dividends? No
e. Pensions, annuities or life insurance payments? No
d. Gifts or inheritance [Unanswered]
e. Family of [sic] friends? Yes
f. Any other sources? No
If you answered YES to any of the questions above describe each source of money and state the amount received from each during the past 12 months. $2000
2. Do you own cash, or do you have money in a checking or savings account, including any funds in prison accounts?
Yes.
If you answered YES, state the total value of the items owned.
$800
3. Do you own any real estate, stocks, bonds, notes, automobiles, or other valuable property, excluding ordinary household furnishings and clothing?
No.

McClain signed the affidavit on November 2, 2008, and declared under penalty of perjury that the information was true and correct. John Warren, Clerk of the County Courts of Dallas County, filed a contest on November 13 pursuant to Rule 145 of the Texas Rules of Civil Procedure. A hearing was set for November 21 and McClain was notified via certified mail, return receipt requested. He did not appear and he does not contend that he sought a bench warrant or requested permission to participate in the hearing via video conference. Following the hearing, the trial court entered an order finding that “Kenneth Reven McClain is not indigent.” That same date, the judge signed an order dismissing McClain’s lawsuit with prejudice pursuant to Section 14.003 of the Texas Civil Practice and Remedies Code.

ISSUES FOR REVIEW

McClain brings three issues for review. First, he contends that his affidavit did not contain any false claims or claims that he knew to be false. Second, he submits that his lawsuit had an arguable basis in law. Third, he alleges that the affidavit was filed accidently or mistakenly by his father. The procedural posture requires that we first determine whether McClain was indigent.

STANDARD OF REVIEW

We review a trial court’s determination of indigency status for an abuse of discretion. Maddox v. Texas Dept. of Protective and Regulatory Services, No. 08-02-00200-CV, 2003 WL 21716185, *1 (Tex.App.-El Paso July 25, 2003, no pet.) (not desig. for publication); White v. Bayless, 40 S.W.3d 574, 576 (Tex.App.-San Antonio 2001, pet. denied); In re Smith, 70 S.W.3d 167, 168 (Tex.App.-San Antonio 2001, no pet.). Similarly, we review a dismissal of an inmate’s in forma pauperis suit under an abuse of discretion standard. Thomas v. Skinner, 54 S.W.3d 845, 846 (Tex.App.-Corpus Christi 2001, pet. denied). “A [party] who attacks the ruling of a trial court as an abuse of discretion labors under a heavy burden.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex.1985) (orig. proceeding). “The test for abuse of discretion is not whether, in the opinion of [this Court], the facts present an appropriate case for the trial court’s actions. Rather, it is a question of whether the court acted without reference to any guiding rules and principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986); Amador v. Tan, 855 S.W.2d 131, 133 (Tex.App.-El Paso 1993, writ denied). Another way of stating the test is whether the act was arbitrary or unreasonable. Downer, 701 S.W.2d at 242, citing Smithson v. Cessna Aircraft Co., 665 S.W.2d 439, 443 (Tex.1984); Amador, 855 S.W.2d at 133. The fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Downer, 701 S.W.2d at 242, citing Southwestern Bell Telephone Co. v. Johnson, 389 S.W.2d 645, 648 (Tex.1965). A mere error of judgment is not an abuse of discretion. Loftin v. Martin, 776 S.W.2d 145, 146 (Tex.1989).

DETERMINATION OF INDIGENCY

A plaintiff may file an affidavit of indigency in lieu of paying court costs. Tex.R.Civ.P. 145. “A ‘party who is unable to afford court costs’ is defined as a person who is presently receiving a government entitlement based on indigency or any other person who has no ability to pay costs.” Tex.R.Civ.P. 145(a). The affidavit must contain complete information as to the party’s identity, the nature and amount of governmental entitlement income, nature and amount of employment income, other income (interest, dividends, etc.), spouse’s income if available to the party, property owned (other than homestead), cash or checking account, dependents, debts, and monthly expenses. Tex.R.Civ.P. 145(b). A prisoner at a Texas Department of Criminal Justice who has no money or property is considered indigent. Allred v. Lowry, 597 S.W.2d 353, 355 (Tex.1980). An inmate who has funds in his trust account is not indigent. Tex.Civ.Prac. & Rem.Code Ann. § 14.006(b)(1)(Vernon 2002). The statute outlines a formula by which an inmate’s trust funds can be utilized for payment of costs. Id.

A defendant or the court clerk may contest an affidavit by filing a written contest giving notice. Tex.R.Civ.P. 145(d). The court may conduct a hearing and if so, the inmate must be given notice. Aguilar v. Stone, 68 S.W.3d 1, 2 (Tex.App.-Houston [1st Dist.] 1997, orig. proceeding). The court may hold a hearing by video communications for an inmate at a jail facility or consider the case on submission by requiring that written statements be submitted and copies be provided to the inmate. Tex.Civ.Prac. & Rem.Code Ann. § 14.009.

We begin with McClain’s argument that the affidavit did not contain false information. The clerk’s record includes a certified trust fund statement from the prison in which McClain is incarcerated. He avers that the exhibit demonstrates that he actually had more money in his prison account than what he claimed in the affidavit. In short, he contends the trust statement proves that the affidavit correctly stated the monies available to him. He misstates the trial court’s ruling. The trial court did not find that the affidavit falsely stated his financial situation. The court specifically found that McClain was not indigent. McClain has not attacked that finding on appeal or assigned error to the trial court’s ruling. It is in this light that we review the trial court’s dismissal order.

DISMISSAL OF SUIT

Chapter 14 of the Texas Civil Practices and Remedies Code relates to inmate litigation. The court may dismiss an indigent inmate’s suit even before process is served if the court finds:

(1) the allegation of poverty in the affidavit or unsworn declaration is false;
(2) the claim is frivolous or malicious; or
(3) the inmate filed an affidavit or un-sworn declaration required by this chapter that the inmate knew was false.

Tex.Civ.Prac. & Rem.Code Ann. § 14.003(a); Pedraza v. Tibbs, 826 S.W.2d 695, 698 (Tex.App.-Houston [1st Dist.] 1992, writ dism’d w.o.j.). Because the trial court did not specify the grounds for dismissal, we will affirm the decision if any theory is meritorious. Walker v. Gonzales County Sheriffs Dept. 35 S.W.3d 157, 162 (Tex.App.-Corpus Christi 2000, pet. denied), citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

A trial court does not abuse its discretion in dismissing a suit when the plaintiff makes a false allegation of poverty. McCullough v. Dretke, No. 02-07-00294-CV, 2008 WL 4180365, *3 (Tex.App.-Fort Worth Sept. 11, 2008, no pet.). There, McCullough alleged that he was indigent but stated in the affidavit that he received money from his family. He attached a copy of his trust account showing a then-current balance of $103.92 and a six-month average balance of $184.92. McClain alleged he had $2,800. Because McClain’s allegation of poverty was false, the court did not abuse its discretion in dismissing the suit. We overrule Issue One. Given our resolution of this issue, it is unnecessary for us to consider Issue Two in which McClain contends that his lawsuit had an arguable basis in law.

In Issue Three, McClain contends that his father mistakenly filed the affidavit in this lawsuit rather than in a suit pending in the Supreme Court on writ of certiorari. We recite his argument in its entirety:

It needs to be noted that Appellant’s 11/12/08 [sic] filed in forma pauperis affidavit, that didn’t contain false claims or claims in which inmate knew were false, was actually filed by mistake and accident.
Appellant’s dad was given instructions to file in forma pauperis paperwork with the petition. But that request was actually in relation to a 12/14/08 Supreme Court Petition for Writ of Certiorari, case no. 08-7797, and not in regards to this civil lawsuit that was being filed on 11/12/08.
Appellant also considers himself not responsible for having filed the in forma pauperis affidavit, even though there is no false information contained in it, as: 1) Appellant didn’t know in forma pau-peris paperwork was being filed, 2) Appellant would have mailed himself, in forma pauperis paperwork directly from prison and not have a third party file it, 3) finally Appellant believed that the lawsuit was going to be initially paid for and therefore not filed in forma pauper-is.
Due to the fact that the in forma pau-peris application was filed by mistake and by accident, and because it contained no false statements and/or false statements that inmate knew were false, it is asked that the ruling the judge made on 11/21/08 be reversed, and this lawsuit allowed to commence forward.

The clerk’s record contains an unsworn and unverified statement by Thomas McClain concerning his mistake. There is no indication that he appeared at the hearing, and the statement is dated December 5, 2008, fourteen days after the hearing.

In his motion to reinstate, Appellant vigorously argued that, “I DID NOT KNOW THIS PAPERWORK WAS BEING FILED!!!” We find three points to be significant. First, the original petition was filed without payment of costs. Second, upon receiving notice that the clerk contested his indigency, McClain did not ensure that costs were paid. Third, in his motion to reinstate, McClain never offered to tender costs. Indeed, he unsuccessfully sought leave to proceed informa pauperis on appeal. His affidavit with the appellate court clerk reflects gifts of $2,400 within the past twelve months. He lists his monthly income at $200 and cash on hand of less than $1,000. The certified trust account still shows an available balance of $1,064.45. Regardless of whether McClain intended the affidavit to be filed in this litigation, the trial court acted well within its discretion in disbelieving his protests. We overrule Issue Three and affirm the judgment of the trial court.

      . McClain is an inmate at a federal prison facility in Kentucky.

      . Tex. Civ. Prac. & Rem.Code Ann. § 14.008(a).


text:
    In the matter of E.E., a Juvenile.
    No. 08-08-00338-CV.
    Court of Appeals of Texas, El Paso.
    May 19, 2010.

      Jo Anne Bernal, County Attorney, El Paso, for appellant.
    Daniel Robledo, El Paso, for appellee.
    Before McCLURE, J., RIVERA, J., and GUADERRAMA, Judge, sitting by assignment.
   OPINION

ANN CRAWFORD McCLURE, Justice.

The State of Texas, represented by the Office of the County Attorney, appeals the early termination of the juvenile’s determinate sentence probationary period. For the reasons that follow, we affirm the decision of the trial court.

FACTUAL BACKGROUND

On July 11, 2008, the 65th District Court held a stipulation and sentencing hearing. E.E., accompanied by counsel, stipulated to having committed an aggravated assault with a deadly weapon. The juvenile indicated that he was entering the plea voluntarily and giving up his right to a jury trial. The State agreed to a six year probationary period rather than confinement at the Texas Youth Commission with a subsequent transfer to the adult system. The court followed the recommendation of the State, imposed a suspended sentence of six years, and placed E.E. on community supervision.

The court then set a review hearing for December 2, 2008, a week prior to the juvenile’s 18th birthday. Juvenile Probation Officer Marcela Carrillo testified that during the six month period of supervision, E.E. had performed extremely well, despite his arrest in October for shoplifting. When asked whether she would object if the court on its own motion discharged E.E. from probation, she replied, “Not with myself.” Nor did she believe that the court should place the juvenile on adult probation. In her expert opinion, the juvenile had matured and learned his lesson.

Although defense counsel asked to make a brief argument on the issue of termination, the court wished to hear from the juvenile instead. When asked why his probation should be terminated, E.E. responded that he’s “been good,” has learned his lesson, is trying to fix up his life, is doing well in school, is trying to finish school, and wants to get his degree as a radiologist. The assistant county attorney objected to termination, emphasizing that E.E. had picked up an additional charge within the six month period. He recommended that the court hold off on the termination.

The trial judge then ruled from the bench. Addressing the juvenile directly, he remarked that the adult probation division did not provide as many services as the juvenile probation department. If it did, he would place E.E. on probation in the adult system. While expressing his opinion that he did not believe E.E. would remain out of the system in the future, the judge nevertheless terminated probation.

TERMINATION OF PROBATION

The State argues that the trial court failed to follow the proper procedure in the Texas Family Code in determining whether to transfer E.E. to the Adult Probation System. It also contends that the trial court’s decision is at odds with the evidence presented.

Standard of Review

Juvenile courts are vested with broad discretion in determining the suitable disposition of children found to have engaged in delinquent conduct. In re C.J.H., 79 S.W.3d 698, 702 (Tex.App.-Fort Worth 2002, no pet.), citing In re T.K.E., 5 S.W.3d 782, 784 (Tex.App.-San Antonio 1999, no pet.); In re L.R., 67 S.W.3d 332, 338 (Tex.App.-El Paso 2001, no pet.). This is especially true in hearings to modify disposition. In re L.R., 67 S.W.3d at 338. An abuse of discretion does not occur as long as some evidence of substantive and procedural character exists to support the trial court’s decision. In re C.J.H., 79 S.W.3d at 702. Absent an abuse of discretion, we will not disturb the juvenile court’s determination. In re L.R., 67 S.W.3d at 338.

In conducting this review, we engage in a two-pronged analysis: (1) did the trial court have sufficient information upon which to exercise its discretion; and (2) did the trial court err in its application of discretion. Id. The traditional sufficiency of the evidence review is used in answering the first question. Id., citing In re M.A.C., 999 S.W.2d 442, 446 (Tex.App.-El Paso 1999, no pet.). The appellate review then continues to determine whether the trial court made a reasonable decision or whether it is arbitrary and unreasonable. Id. The question is not whether the facts presented an appropriate case for the trial court’s action in the opinion of the appellate court, but whether the trial court acted without reference to any guiding rules and principles. Id.

Transfer of Determinate Sentence Probation and Notice

On appeal, the State argues that the Legislature has laid out clear procedures governing the transfer of a juvenile placed on an extended period of probation in a determinate sentencing case and contends it was not given adequate notice that the review hearing would encompass the transfer issue. But this argument has been waived because there was no objection lodged below. As a prerequisite to presenting a complaint for appellate review, a complaint must be made in the trial court by a timely request or objection. Tex.RApp.P. 33.1(a). This rule ensures that trial courts are provided the opportunity to correct their own mistakes before a case need be appealed. Vidaurri v. State, 49 S.W.3d 880, 886 (Tex.Crim.App.2001).

At the hearing the court asked the assistant county attorney to address the issue:

THE COURT: What do you think, Mr. Herrera?
MR. HERRERA: There’s one phrase that rings in my ear: What is past is prolog. There were four referrals prior to this referral, Judge. This particular adjudication was a violent crime which is why my office decided to seek a determinant sentence for six years and that was the agreement. Had there been no arrest in October of 2008, had there been no more arrest, I don’t think the State would have much to say.
But again, this pattern of behavior seems to pop up, perhaps even perception of most as a minor matter, a shoplifting. But having gone through the system four times before this one, still not realizing that in order to receive benefits from the Court or a favorable treatment by the Court, that should have been foremost in this young man’s mind. With other responsibilities, with all the hopeful outcome that is ejected, with the good behavior that is shown, we had another relapse.
It may be too early, at least from the State’s prospective to release him, especially when he is so close to his date of maturity. My suggestion and my request to the court is to hold off a little bit longer and see if his good behavior continues.

Because the State did not object to any procedural defect or any lack of notice, this issue has not been preserved for review. Tex.R.App.P. 33.1.

Evidence to Support Termination

The State next complains that the trial court disregarded the juvenile’s continuing need for rehabilitation, emphasizing that E.E. committed an additional offense while he was on probation. It also challenges the trial court’s perception that adult probation services offer less than the juvenile probation department. If the court truly believed that E.E. would not remain out of the adult system in the future, argues the State, then early termination is not supported by the evidence.

We have reviewed the evidence and perceive no abuse of discretion. The trial court relied on the positive testimony of the probation officer and the testimony of the juvenile himself in reaching its decision to terminate probation. Indeed, he concluded by saying:

I value the opinion of your probation officer and I don’t think we need to place you on probation in the adult system .... I’ve got this feeling about you that you’re going to do okay.

Because the trial court did not act without reference to any guiding rules and principles, we overrule the sole issue for review and affirm the decision of the trial court.


text:
    In re: BROKERS LOGISTICS, LTD. (f/k/a Brokers Logistics, Inc.) and Brokers Logistics Genpar, L.L.C. (General Partner of Brokers Logistics, Ltd.), Relators.
    No. 08-09-00086-CV.
    Court of Appeals of Texas, El Paso.
    May 19, 2010.
    Rehearing Overruled July 7, 2010.

      Steven L. Hughes, Mounce, Green, Myers, Safí, Paxson & Galatzan, El Paso, TX, for Relator.
    John P. Mobbs, Attorney at Law, El Paso, TX, for Real Party in Interest.
    Before CHEW, C.J, McCLURE, J., and ANTCLIFF, Judge.
   OPINION ON PETITION FOR WRIT OF MANDAMUS

ANN CRAWFORD McCLURE, Justice.

Relators seek a writ of mandamus against the Honorable William E. Moody, Presiding Judge of the 34th District Court of El Paso County, Texas, to compel him to set aside an order striking the designation of Dr. Randy J. Pollet as a responsible third party. We conditionally grant relief.

FACTUAL SUMMARY

The real party in interest, Rafael Martinez, filed suit against Relators alleging he was injured on the premises while making a delivery in the course and scope of his employment with Aeroground. Rela-tors filed a motion for leave to designate Randy Pollet, M.D. as a responsible third party under Section 33.004 of the Civil Practice and Remedies Code, alleging that

Dr. Pollet’s negligence in treating Martinez’s injuries caused Martinez’s damages. See Tex.Civ.Prac. & Rem.Code Ann. § 33.004(a)(Vernon 2008). Relators based their designation on an expert report prepared by William Blair, M.D. The trial court granted the motion and designated Dr. Pollet as a responsible third party. As permitted by Section 38.004, Martinez amended his petition within sixty days of the designation to include a negligence claim against Dr. Pollet. When Martinez did not file an expert report and curriculum vitae within 120 days after filing his claims against Dr. Pollet, Dr. Pollet filed a motion to dismiss pursuant to Section 74.351(b) of the Civil Practice and Remedies Code. Dr. Pollet also filed a motion for summary judgment on the ground that the two-year statute of limitations had expired. During this same time period, Martinez filed a motion to strike the designation of Dr. Pollet on the ground that Relators had not produced sufficient evidence to raise a genuine issue of fact regarding Dr. Pollet’s responsibility for Martinez’s injuries or damages. Initially, the trial court took Dr. Pollet’s motion to dismiss and Martinez’s motion to strike the designation under advisement pending discovery. Dr. Pollet challenged the trial court’s failure to rule by filing a writ of mandamus and we conditionally granted relief on September 25, 2008. See In re Randy J. Pollet, M.D., 281 S.W.3d 532 (Tex.App.-El Paso 2008, orig. proceeding).

On January 6, 2009, the trial court conducted a hearing on Dr. Pollet’s motion to quash the deposition of Dr. Blair. During this hearing, the trial court expressed a number of concerns about the responsible third party designation being unfair to Dr. Pollet. First, Dr. Pollet’s insurance carrier could take the position it did not have a duty to defend, and if the jury found Dr. Pollet was 90 percent responsible, then Dr. Pollet would have a judgment against him for medical malpractice and the insurance company could raise Dr. Pollet’s premiums. Second, Dr. Pollet’s medical license could be at risk in the event there was a judgment against him. A few days after this hearing, Martinez filed another motion to strike the designation because “there is no liability or responsibility of Dr. Randy J. Pollet under the Health Care Liability Act.” Echoing what Judge Moody had stated at the previous hearing, Martinez also alleged that permitting Relators to hold Dr. Pollet liable “would subject Dr. Pollet to potential licensure issues without being able to defend himself against his accuser, Dr. Blair.” At the conclusion of a hearing held on February 12, 2009, Judge Moody orally granted Dr. Pollet’s motion to dismiss Martinez’s suit against him. Following entry of a written order dismissing Martinez’s suit against Dr. Pollet and severing that portion of the case into a new cause number, Martinez filed notice of appeal. The trial court also granted Martinez’s motion to strike the designation of Dr. Pollet without specifying the basis for the ruling. Relators filed a mandamus petition to challenge the trial court’s order striking the designation. This mandamus proceeding does not concern the dismissal of Martinez’s claims against Dr. Pollet.

RESPONSIBLE THIRD PARTY DESIGNATION

In their sole issue, Relators contend that the trial court abused its discretion by striking the designation of Dr. Pollet as a responsible third party. Because Judge Moody did not specify the basis for his ruling, Relators must show that the ruling cannot be upheld on any ground asserted by Martinez in his motion to strike the designation.

To be entitled to mandamus relief, a relator must meet two requirements. First, it must show the trial court clearly abused its discretion. In re Prudential Insurance Company of America, 148 S.W.3d 124, 135 (Tex.2004). Second, the relator must demonstrate it has no adequate remedy by appeal. Id. at 136.

A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law. In re Ford Motor Company, 165 S.W.3d 315, 317 (Tex.2005). When reviewing the trial court’s decision for an abuse of discretion, the reviewing court may not substitute its judgment for that of the trial court with respect to resolution of factual issues or matters committed to the trial court’s discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985); see Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Review of the trial court’s determination of the legal principles controlling its ruling is much less deferential. Walker, 827 S.W.2d at 840. A trial court has no discretion in determining what the law is or applying the law to the facts, even when the law is unsettled. In re Prudential, 148 S.W.3d at 135. A clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion. Walker, 827 S.W.2d at 840.

Clear Abuse of Discretion

Chapter 33 sets forth the statutory scheme for the apportionment of responsibility in tort and deceptive trade practice actions. See Tex.Civ.Prac. & Rem.Code Ann. § 33.008. Section 33.004(a) of the Civil Practice and Remedies Code provides:

A defendant may seek to designate a person as a responsible third party by filing a motion for leave to designate that person as a responsible third party. The motion must be filed on or before the 60th day before the trial date unless the court finds good cause to allow the motion to be filed at a later date.

Tex.Civ.Prac. & Rem.Code Ann. § 33.004(a). A court is required to grant leave to designate the named person as a responsible third party unless another party files an objection on or before the 15th day after the date the motion is served. Tex.Civ. Prac. & Rem.Code Ann. § 33.004(f). If an objection is timely filed, the court shall grant leave to designate unless the objecting party establishes: (1) the defendant did not plead sufficient facts concerning the alleged responsibility of the person to satisfy the pleading requirement of the Texas Rules of Civil Procedure; and (2) after having been granted leave to replead, the defendant failed to plead sufficient facts. Tex.Civ.Prac. & Rem.Code Ann. § 33.004(g). By granting a motion for leave to designate a person as a responsible third party, the person named in the motion is designated as a responsible third party for purposes of the Proportionate Responsibility Chapter of the Civil Practice and Remedies Code without further action by the court or any party. Tex.Civ. Prac. & Rem.Code Ann. § 33.004(h).

After adequate time for discovery, a party may move to strike the designation of a responsible third party on the ground that there is no evidence that the designated person is responsible for any portion of the claimant’s alleged injury or damages. Tex. CivPrac. & Rem.Code Ann. § 33.004(0-The court is required to grant the motion to strike unless a defendant produces sufficient evidence to raise a genuine issue of fact regarding the designated person’s responsibility for the claimant’s injury or damages. Id.

The mandamus record reflects that Martinez filed an untimely objection to Rela-tors’ motion for leave to designate Dr. Pollet as a responsible third party. Thus, the trial court complied with the mandate of Section 33.004(f) by entering an order which designated Dr. Pollet as responsible third party. Once Dr. Pollet was designated as a responsible third party, the only statutory ground for striking the designation is that “there is no evidence that the designated person is responsible for any portion of the claimant’s alleged injury or damage.” Tex.Civ.Prac. & Rem.Code Ann. § 33.004C). Martinez asserted non-statutory grounds in his motion to strike the designation and the trial court certainly expressed concern at various hearings about the potential negative and unfair consequences of permitting the designation to stand. The first issue we must address is whether the statutory ground for striking a designation is the only permissible ground. When construing a statute, we begin with its language. State v. Shumake, 199 S.W.3d 279, 284 (Tex.2006). Our primary objective is to determine the Legislature’s intent which, when possible, we discern from the plain meaning of the words chosen. Id.; City of San Antonio v. City of Boeme, 111 S.W.3d 22, 25 (Tex.2003). If the statute is clear and unambiguous, we must apply its words according to their common meaning without resort to rules of construction or extrinsic aids. Shumake, 199 S.W.3d at 284; Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865-66 (Tex.1999). We may consider other matters in ascertaining legislative intent, including the objective of the law, its history, and the consequences of a particular construction. See Tex.Govt.Code Ann. § 811.023(1), (3), (5)(Vernon 2005); Shumake, 199 S.W.3d at 284. It is a well-settled rule of statutory construction that every word of a statute must be presumed to have been used for a purpose, and those excluded must be presumed to have been excluded for a purpose. See Quick v. City of Austin, 7 S.W.3d 109, 123 (Tex.1998). Because statutory construction is a question of law, we review it de novo. Shumake, 199 S.W.3d at 284.

Section 33.004(0 articulates a single ground for striking a designation of a responsible third party. If the Legislature had intended to authorize trial courts to strike designations on any other ground it could have easily indicated that intent in the statute. It did not. The trial court clearly believed it was unfair to permit the case to proceed against Dr. Pollet given that the court had dismissed Martinez’s suit against him. There is nothing in Section 33.004 that suggests a designation can be struck if the plaintiffs suit against the responsible third party is dismissed for some reason. To the contrary, Section 33.004 permits a claimant to sue a designated responsible third party but it does not require that the claimant do so for the designation to stand. We conclude that the plain language of Section 33.004(Z) reflects that the Legislature did not intend for a responsible third party designation to be struck on any ground other than the one contained in the statute.

We now consider whether the trial court’s ruling can be upheld on the statutory ground. If Relators failed to produce sufficient evidence to raise a genuine issue of fact regarding Dr. Pollet’s responsibility for the claimant’s injury or damages, Section 33.004(Z) would have required the trial court to strike the designation. On the other hand, if Relators produced evidence raising a genuine issue of fact on that issue, the trial court clearly abused its discretion by striking the designation.

Relators claim to have offered sufficient evidence to raise an issue of fact regarding Dr. Pollet’s responsibility for any portion of Martinez’s injury or damages. Dr. Blair’s expert report described how Dr. Pollet treated Martinez’s knee injury with multiple steroidal injections over a two month period along with steroidal phono-phoretic treatments during physical therapy. Dr. Blair expressed grave concern over the number of steroidal treatments given in this time-frame and he believed it was more likely than not that the injections and other steroidal treatments played a significant role in the degeneration of the articular cartilage subsequently requiring a total knee replacement. The report states that Dr. Pollet’s treatment of Martinez’s knee injury was excessive, unnecessary, and more likely than not contributed to a rapid chondrolysis of the articular surfaces of the knee resulting in a total knee replacement. He also believed that the steroidal treatments possibly re-suited in immune compromise and may have led to post-operative infection. Rela-tors provided another report by Dr. Blair in which he concluded that: (1) the medical documentation indicates that clinical protocols initiated by Dr. Pollet resulted in a severe compromise of Martinez’s left lower leg resulting in a total knee arthroplasty, which became infected and resulted in multiple surgeries and an unknown long-term prognosis; (2) Dr. Pollet deviated from the acceptable standard of medical care established by the clinical literature and the standardized guidelines for acceptable patient care published by the American Academy of Orthopaedic Surgeons; and (3) based upon Dr. Blair’s analysis of the medical records and the clinical literature, Dr. Pollet’s treatment of Martinez fell below the acceptable standard of care.

We conclude that Relators produced sufficient evidence to raise a genuine issue of fact regarding Dr. Pollet’s responsibility for at least a portion of Martinez’s injury or damages. The trial court clearly abused its discretion by striking the designation of Dr. Pollet as a responsible third party. The only remaining issue is whether Relators have an adequate remedy by appeal.

Inadequate Remedy by Appeal

The adequacy of an appellate remedy must be determined by balancing the benefits of mandamus review against the detriments. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.2008), citing Prudential Insurance Company of America, 148 S.W.3d 124, 136 (Tex.2004). In evaluating benefits and detriments, we consider whether mandamus will preserve important substantive and procedural rights from impairment or loss. Id. We have already determined that Relators presented sufficient evidence to raise a genuine issue of fact regarding Dr. Pollet’s responsibility for at least a portion Martinez’s injury or damages. Under these circumstances, Relators have a statutory right to demand that the trier of fact determine Dr. Pollet’s percentage of responsibility for Martinez’s injuries or damages. Mandamus review would preserve this valuable right.

In addition to impairment of rights, we consider whether mandamus review will “allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments.” In re Team Rocket, 256 S.W.3d at 262, quoting Prudential, 148 S.W.3d at 136. The trial court’s ruling certainly could be reviewed on appeal in the event Relators suffer an adverse judgment, but Relators would be required to prove that the court’s error caused the rendition of an improper judgment in order to obtain a reversal. See Tex. R. App. P. 44.1(a)(1). The denial of Relators’ right to designate Dr. Pollet as a responsible third party would skew the proceedings, potentially affect the outcome of the litigation, and compromise the presentation of Relators’ defense in ways unlikely to be apparent in the appellate record. See In re Arthur Andersen, L.L.P., 121 S.W.3d 471, 486 (Tex.App.-Houston [14th Dist.] 2003, orig. proceeding). Thus, it is possible Relators would be unable to obtain relief on direct appeal from the trial court’s clearly erroneous ruling. Id.

Finally, we must also consider whether mandamus will spare litigants and the public “the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” In re Team Rocket, 256 S.W.3d at 262, quoting Prudential, 148 S.W.3d at 136. It is beyond dispute that there will be a substantial waste of the litigants’ time and money if they to proceed to trial without the error being corrected, proceed through the appellate process only to have the judgment reversed, and then retry the entire case with Dr. Pollet as a designated responsible third party. The additional expense and effort of preparing for and participating in those trials does not, standing alone, justify the issuance of a writ of mandamus. See Walker, 827 S.W.2d at 842 (remedy by appeal not inadequate merely because it may involve more delay or cost than mandamus). Where, however, a trial court’s error will cause a waste of judicial resources, an appellate court may properly consider that factor in determining the adequacy of an appeal to remedy the error in question. See id. at 843. The potential waste of resources, when combined with the possibility that Relators may not be able to successfully prosecute an appeal, supports our conclusion that Relators do not have an adequate remedy at law. Accordingly, we sustain the sole issue presented in the mandamus petition and conditionally grant mandamus relief. The writ will issue only if the trial court fails to withdraw its order striking the designation.

      . If a person is designated under Section 33.004 as a responsible third party, a claimant is not barred by limitations from seeking to join that person provided that the claimant joins the person not later than sixty days following the designation. Tex Civ. Prac. & Rem. Code Ann. § 33.004(e).

      . The trial court did not sign a written order until May 8, 2009.

      . Because the issues in this mandamus proceeding are distinct from the issues in the direct appeal, we denied Martinez's motion to consolidate the cases.

      . Relators served the motion for leave on June 6, 2006 and Martinez did not file his objection until July 10,2006.

      . Many of the trial court's concerns regarding the negative consequences of a judgment finding Dr. Pollet responsible for Martinez’s injuries or damages are unfounded. Section 33.004(i) expressly provides that: "The filing or granting of a motion for leave to designate a person as a responsible third party or a finding of fault against the person: (1) does not by itself impose liability on the person; and (2) may not be used in any other proceeding, on the basis of res judicata, collateral estoppel, or any other legal theory, to impose liability on the person.” Tex.Civ.Prac. & Rem. Code Ann. § 33.004(i).

      . We are aware that the Fourteenth Court of Appeals has more recently denied mandamus relief in a case where the trial court refused to allow a party to designate a responsible third party within sixty days of the trial date because it found appeal was an adequate remedy. See In re Investment Capital Corporation, No. 14-09-00105-CV, 2009 WL 310899 (Tex.App.-Houston [14th Dist.] Feb. 4, 2009, orig. proceeding). In that case, a party attempted to designate a former defendant, SCI Funeral, as a responsible third party after the trial court had granted summary judgment in favor of SCI Funeral and dismissed it from the case. A party seeking to file the designation must show good cause for filing the motion inside of the sixty day time period. Tex. CivPrac. & Rem.Code Ann. § 33.004(a). The court of appeals did not address whether the trial court clearly abused its discretion but instead found that mandamus relief was unavailable because the facts were relatively straightforward and the error could be corrected through the regular appellate process. Our case is distinguishable because it does not concern the good cause issue as Dr. Pollet had been properly designated as a responsible third party when the trial court struck the designation for a non-statutory reason. Further, we have concluded that Relators might not be able to have the error corrected on direct appeal because it is possible the appellate record would not show how the trial court’s ruling caused the rendition of an improper judgment.