author: DAVID GAULTNEY, Justice. STEVE McKEITHEN, Chief Justice,

text:
    Charlcie PINK, Individually and As Representative of the Estate of Veryl L. Pink, Appellant, v. GOODYEAR TIRE & RUBBER COMPANY and Texaco Refining & Marketing, Inc., Appellees.
    No. 09-09-00241-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted April 8, 2010.
    Decided Sept. 9, 2010.

      Lance Lubel, J. Robert Black, Heard, Robins, Cloud & Lubel, Daryl L. Moore, Daryl L. Moore, P.C., L. Lyn Ramsey, L. Lyn Ramsey, P.C., Houston, for appellant.
    David A. Oliver, Tiffany Bingham Bris-coe, Sharon K. Wendell, Vorys, Sater, Seymour and Pease LLP, Houston, for appel-lees.
    Before McKEITHEN, C.J., GAULTNEY and HORTON, JJ.
   OPINION

DAVID GAULTNEY, Justice.

Alleging that his exposure to benzene while working at Goodyear Tire & Rubber Company caused renal cell carcinoma, Ve-ryl L. Pink and his wife Charicie Pink sued Goodyear and a number of product suppliers, including Texaco Refining & Marketing, Inc. After Veryl’s death, Charicie Pink maintained the lawsuit.

In this appeal, Pink contends the trial court erred in granting a no-evidence motion for summary judgment filed by Goodyear, and in signing a take-nothing judgment in favor of Texaco. See Tex.R. Civ. P. 166a(i). No issue is raised on appeal concerning the judgments granted in favor of other defendants.

We affirm the judgment as to Texaco, because Pink voluntarily discontinued the lawsuit against Texaco. Pink produced some evidence supporting the elements of a claim against Goodyear. We reverse the trial court’s summary judgment as to Goodyear and remand the case to the trial court for further proceedings consistent with this opinion.

VOLUNTARY DISCONTINUANCE AS TO TEXACO

Pink contends the trial court erred in rendering a final judgment in favor of Texaco, because Texaco did not join in any of the motions for summary judgment. A trial court cannot dispose of a claim by summary judgment that has not been challenged in a motion for summary judgment. See Teer v. Duddlesten, 664 S.W.2d 702, 703 (Tex.1984) (op. on reh’g).

Texaco did not file an answer in the trial court to Pink’s petition. Pink did not file a non-suit of the claims against Texaco. After the trial court granted several summary judgments in favor of some defendants and signed an order of non-suit as to other defendants, Pink requested that the trial court sign a final appealable judgment disposing of all the claims; Pink did not request a severance of the claims against Texaco or a default judgment against Texaco. Pink did not complain in the trial court of the judgment disposing of the claims against Texaco. Having voluntarily discontinued the lawsuit against Texaco in the trial court, Pink may not complain of that disposition for the first time on appeal. See Tex.R.App. P. 33.1; see also M.O. Dental Lab v. Rape, 139 S.W.3d 671, 674 (Tex.2004) (discontinuance of lawsuit as to defendants where no service was requested or expected); Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex.1962) (discontinuance as to unserved defendant). We overrule issue one.

No-Evidence Summary Judgment

Pink contends the trial court erred in granting Goodyear’s no-evidence motion for summary judgment. Rule 166a(i) authorizes a summary judgment motion asserting there is no evidence to support one or more elements of a plaintiffs claim. See Tex.R. Civ. P. 166a(i) & cmt. to 1997 change.

The Supreme Court has explained that “[a] no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict.” King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex.2003). The non-movant must produce some evidence supporting the challenged element of a claim to defeat a Rule 166a(i) no-evidence motion. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). The evidence is viewed in the light most favorable to the nonmovant. King Ranch, Inc., 118 S.W.3d at 751; Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 208 (Tex.2002). If the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions regarding the essential element challenged by the no-evidence motion, the nonmovant has met its burden and the trial court must deny the motion. See Ridgway, 135 S.W.3d at 601 (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)).

In evaluating summary judgment evidence, an appellate court does not judge the credibility of the witnesses or weigh the evidence. See Fields v. Teamsters Local Union No. 988, 23 S.W.3d 517, 523 (Tex.App.-Houston [1st Dist.] 2000, pet. denied). This Court must indulge every reasonable inference in favor of the non-movant and resolve doubts in the nonmov-ant’s favor. See Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex.1991); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 549 (Tex.1985). An appellate court must assume, for purpose of a summary judgment review, that the evidence favorable to the nonmovant is true. Nixon, 690 S.W.2d at 549.

“A summary judgment is not entitled to the same deference given to a judgment following a trial on the merits.” Bell v. Moores, 832 S.W.2d 749, 751 (Tex.App.-Houston [14th Dist.] 1992, writ denied). An appellate court reviews a summary judgment de novo to determine whether the movant is entitled to judgment as a matter of law prior to trial. See id. at 751-52.

The Summary Judgment Evidence Considered

The parties dispute what evidence the trial court considered in ruling on Goodyear’s motion for summary judgment. Pink filed a response to the motion, and then supplemented the response less than seven days before the summary judgment hearing. Goodyear objected to the late filing, and on appeal argues that the late-filed evidence cannot be considered as part of the summary judgment record. See Tex.R. Civ. P. 166a(c) (“Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response.”).

Unless the order indicates that the trial court granted leave, an appellate court generally will presume the trial court did not consider untimely summary judgment evidence. Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex.1996) (citing INA of Tex. v. Bryant, 686 S.W.2d 614, 615 (Tex.1985)). The interlocutory order granting summary judgment for Goodyear does not indicate whether the trial court considered the late response, but the final judgment states that the trial court considered “all of the evidence on file” when it granted the summary judgment. In addition, the transmittal letter to the trial court drafted by Pink’s counsel of record states that the proposed final judgment “makes clear what evidence was eon-sidered[ ]” by stating that “in granting Defendants’ motions for summary judgment and in denying plaintiffs’ motions for new trial, the Court considered all of the evidence on file at the time of the granting of the summary judgments.” It is apparent from the judgment that the trial court considered the supplemental response in rendering judgment. See id.; Stephens v. Dolcefino, 126 S.W.3d 120, 133-34 (Tex.App.-Houston [1st Dist.] 2003), pet. denied, 181 S.W.3d 741 (Tex.2005) (In light of statement on record that the trial court would include a late-filed videotape in the summary judgment record, appellate court considered evidence filed after trial court granted summary judgment.). Accordingly, for purposes of appellate review, the summary judgment record includes the affidavit of Dr. Mahesh Kanojia (Pink’s treating oncologist) and the deposition testimony of Pink’s co-worker, Hamilton Cooper.

Duty and BREACH

Goodyear’s motion for summary judgment asserted there was no evidence of a duty or breach of a duty. The summary judgment motion acknowledged that Veryl Pink was a Goodyear employee from approximately 1963 to 1997. He died in 2005.

The existence of a legal duty is a question of law. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex.2008). Goodyear owed Pink a duty to use ordinary care in providing a safe workplace. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006); see also Tex. Lab.Code Ann. § 411.103 (Vernon 2006) (Employer shall provide and maintain a “reasonably safe and healthful” place of employment.). An employer “must, for example, warn an employee of the hazards of employment and provide needed safety equipment or assistance.” Kroger Co., 197 S.W.3d at 794.

A surviving spouse may bring a claim for exemplary damages under Texas law against an employer if the employer’s gross negligence caused the employee’s death. See Zacharie v. U.S. Natural Res., Inc., 94 S.W.3d 748, 756 (Tex.App.-San Antonio 2002, no pet.); see also Tex. Lab. Code Ann. § 408.001 (Vernon 2006). Pink attempted to raise an issue of material fact regarding gross negligent breach of the duty owed by Goodyear through deposition testimony that indicated: (1) in the 1960s and early 1970s Goodyear employees, including Veryl Pink, washed their hands in benzene, a carcinogen; (2) Goodyear supervisors were aware of the practice and did not stop it; (3) Goodyear was aware of benzene’s hazards; and (4) a Goodyear supervisor observing this practice did not provide a warning regarding the hazards of benzene or regarding the failure to use respirators around benzene. In this review, we do not decide whether this testimony is credible. Rather, we must assume in this summary judgment review that the testimony is true, view the testimony in a light most favorable to the nonmovant, and indulge every reasonable inference in favor of the nonmovant. See Nixon, 690 S.W.2d at 549. Under the applicable review standard, we cannot conclude on this record that Pink produced legally insufficient evidence to support a gross negligence claim. See King Ranch, Inc., 118 S.W.3d at 751 (standard of review); see also Mobil Oil Corp. v. Ellender, 968 S.W.2d 917, 922-23 (Tex.1998) (legally sufficient evidence of gross negligence in failing to warn or protect workers from benzene exposure, including washing hands in benzene).

Proximate Cause

The motion for summary judgment also asserted there was no evidence of proximate cause. Goodyear maintains Pink produced no evidence that the benzene exposure could cause or did in fact cause Veryl Pink’s cancer. Pink argues Dr. Mahesh Kanojia’s affidavit, along with the co-worker’s testimony of the use of benzene, is some evidence that the cancer was caused by the exposure to benzene at Goodyear.

In his affidavit, Dr. Kanojia states his opinion as follows:

BEFORE ME, the undersigned authority, on this day personally appeared Mahesh Kanojia, M.D., who, being by me duly sworn, deposed and stated as follows:
My name is Dr. Mahesh Kanojia. I am over the age of twenty-one (21) years, am of sound mind, and have never been convicted of a felony or a crime involving moral turpitude. I am fully competent to make this affidavit and have personal knowledge of the facts stated therein, and they are true and correct.
I am an oncologist/hematologist with over 28 years of experience. I graduated from medical school in India. I did my internal residency in Birmingham, Alabama. I did my hematology fellowship in Augusta, Georgia. I did a fellowship at M.D. Anderson Cancer Center and was staff at M.D. Anderson Cancer Center. I went into private practice in 1988 and maintained two offices, one in Beaumont, Texas and one in Houston, Texas. I still currently treat patients in Houston. A copy of my curriculum vitae is attached as Exhibit 1.
I was Veryl Pink’s treating oncologist. Mr. Pink was diagnosed with renal cell carcinoma, which was confirmed by biopsy. The ultimate cause of Mr. Pink’s death was the progression of the disease.
Based upon reasonable medical probability it is my opinion that the cause of Mr. Pink’s renal cell carcinoma was exposure to chemicals, more than likely benzene. In rendering this opinion I have reviewed Mr. Pink’s medical records, the deposition testimony of Mr. Pink and three of his co-workers, the deposition of Dr. Radelat, and scientific literature.
I was out of town the weeks of January 12, 2009 and January 19, 2009 and unavailable to provide an affidavit to Plaintiffs counsel.
FURTHER Affiant sayeth not.

Dr. Kanojia, the treating oncologist, stated his training and experience, attached his curriculum vitae to the affidavit, and implicitly claims the expertise and knowledge to express the opinion. While the etiology of a disease is often significant to a clinician’s care of a patient, as well as to public health issues, and while a clinician may have training and experience in the study of cancer and its etiology, the clinician may nevertheless lack the expertise necessary to present a causation opinion related to a toxic chemical exposure. Goodyear has not challenged the qualifications of the treating oncologist to express an opinion on the cause of the cancer, however, and considering the evidence of his education, training, experience, and area of expertise, we consider as true for purposes of this appeal the assertion that Dr. Kanojia has the expertise to determine whether the benzene exposure at Goodyear caused the cancer. See Nixon, 690 S.W.2d at 549; cf. United Blood Servs. v. Longoria, 938 S.W.2d 29, 31 (Tex.1997) (“UBS’s objections, which were, for the most part, based on facts conclusively established” demonstrated the lack of expertise.).

Goodyear argues that the opinion expressed in the affidavit is conclusory. An expert opinion is considered conclusory if it is essentially a “conclusion without any explanation.” Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 & n. 32 (Tex.2008). A party may not avoid a no-evidence summary judgment by presenting speculation. See Hodgkins v. Bryan, 99 S.W.3d 669, 674-75 (Tex.App.-Houston [14th Dist.] 2003, no pet.). A speculative opinion in an affidavit is insufficient to raise a material issue of fact in a summary judgment proceeding. See Hess v. McLean Feedyard, Inc., 59 S.W.3d 679, 686 (Tex.App.-Amarillo 2000, pet. denied).

The Texas Supreme Court has explained that when testimony is challenged as being non-probative on its face, or as conclusory, “there is no need to go beyond the face of the record to test its reliability.” Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex.2004). A challenge that an opinion is conclusory can be made “even in the absence of any objection to its admissibility.” Id.; see also City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex.2009). In contrast, “when a reliability challenge requires the court to evaluate the underlying methodology, technique, or foundational data used by the expert, an objection must be timely made so that the trial court has the opportunity to conduct this analysis.” Coastal Transp. Co., 136 S.W.3d at 233.

Dr. Kanojia’s report references the materials he consulted. Goodyear made no complaint in the trial court or on appeal about the lack of discovery responses from plaintiff. See Tex.R. Civ. P. 194.2(f)(4), 195. Although the oncologist’s affidavit does not itself disclose the specific scientific literature the oncologist consulted, and does not identify what the literature states, the implicit assertion is that the scientific literature reviewed supports his opinion. Rule 705(a) of the Texas Rules of Evidence provides that an “expert may testify in terms of opinion or inference and give the expert’s reasons therefor without prior disclosure of the underlying facts or data, unless the court requires otherwise.” See Tex.R. Evid. 705(a). In this case, the trial court made no ruling requiring disclosure of the scientific literature or benzene exposure evidence on which the treating oncologist relied, and did not strike any of Pink’s evidence. In Arkoma Basin Exploration Co., the Supreme Court reasoned as follows concerning the expert’s trial testimony in that case:

[W]e cannot say on this record that his opinions were unreliable or speculative. Nor were they conclusory as a matter of law; Harper did not simply state a conclusion without any explanation, or ask jurors to “take my word for it.” It is true that without the foundational data in the appellate record, we cannot confirm that “cash off my runs ... divided by mcf’ yielded the $1.62, $1.41, $1.43 and $1.59 prices he calculated as the low range for damages. But experts are not required to introduce such foundational data at trial unless the opposing party or the court insists.

Arkoma Basin Exploration Co., 249 S.W.3d at 390 (footnotes omitted). Rule 705(a) does not require the treating oncologist to introduce into evidence the underlying facts or data “unless the opposing party or the court insists.” Id. at 389-90.

One of the co-worker depositions contained in the record is that of Hamilton Cooper. Cooper testified that in the late 1960s and early 1970s workers at the Goodyear facility washed their hands in benzene. Cooper did not wear a respirator during the benzene hand-washing. According to Cooper, the benzene would “take all that sticky stuff off your hands, and when you would get through your hands would turn ashy white. Like it would take all the oil out or something.” Cooper testified he saw Veryl Pink wash his hands in benzene. The summary judgment evidence supports Pink’s claim of his direct exposure to benzene at Goodyear, and presents a specific time frame (1960s and 1970s) for that exposure.

The treating oncologist’s affidavit explains how he reached the opinion expressed. A reasonable inference from his explanation is that his opinion concerning the cancer derives at least in part from first-hand knowledge and observations made during the treatment. The affidavit explains Dr. Kanojia reviewed the issue of causation in the scientific literature and read the deposition testimony of Pink’s coworkers. The summary judgment record includes excerpts from the deposition of one co-worker who testified that workers at Goodyear, including Pink, washed their hands in benzene. Dr. Kanojia’s affidavit states he reviewed the medical records, and the affidavit states the basis for his diagnosis and treatment. While causal connection does not turn on the use of this or any other particular phrase or term, Dr. Kanojia grounds his opinion under oath on reasonable medical probability. We cannot say in this no-evidence summary judgment review that the opinion concerning etiology, expressed by the oncologist treating the cancer, was “conelusory as a matter of law.” See generally Arkoma Basin Exploration Co., 249 S.W.3d at 389 (foundational data); Ins. Co. of N. Am. v. Myers, 411 S.W.2d 710, 714 (Tex.1966) (reasonable medical probability); see also King Ranch, Inc., 118 S.W.3d at 750-51 (no-evidence summary judgment standard of review).

Goodyear’s Reliability Objections TO THE ONCOLOGIST’S AFFIDAVIT

A review of the underlying methodology, technique, or foundational data may nevertheless reveal the opinion to be unreliable and inadmissible as evidence. See Transcon. Ins. Co. v. Crump, — S.W.3d -, --- (Tex.2010). Goodyear filed reliability objections to Pink’s evidence under Borg-Warner Corporation v. Flores, 232 S.W.3d 765 (Tex.2007) and Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex.1997), and makes the same arguments on appeal in support of the summary judgment. According to Goodyear, Kanojia’s affidavit lacks three preliminary assessments that Goodyear argues are necessary to establish that exposure to benzene caused renal cell carcinoma in Veryl Pink: (1) an analysis of whether renal cell carcinoma “can be related to chemical exposure by a biologically plausible theory”; (2) an examination of whether Veryl Pink was exposed to benzene “in a manner that can lead to absorption into the body”; and (3) an opinion as to whether the dose to which Pink was exposed is sufficient to cause renal cell carcinoma. See Borg-Warner Corp., 232 S.W.3d at 771 (quoting Bernard D. Gold-stein & Mary Sue Henifin, Reference Guide on Toxioology, in Federal Judicial Center, Referenoe Manual on Scientific Evidence 401, 419 (2d ed. 2000)).

The Borg-Warner plaintiff brought claims for negligence and strict liability. Id. at 774. The Supreme Court required evidence of dose in that case and held that both claims required proof that exposure to the toxic substance (asbestos fibers) was a substantial factor in causing the injury (interstitial lung disease). Id. at 766, 773-74. The Court reasoned that asbestosis appears to be dose-related: the more one is exposed to asbestos the more likely one is to develop the disease. Id. at 771-74. Dose “refers to the amount of chemical that enters the body[.]” Id. at 770 (quoting David L. Eaton, Scientific Judgment and Toxic Torts—A Primer in Toxicology for Judges and Lawyers, 12 J.L. & Pol’y 5, 11 (2003)). The Court distinguished situations in which workers were “so covered with asbestos as to be dubbed ‘the snowmen of Grand Central’” from situations in which a worker’s exposure was from the grinding of brake pads containing embedded asbestos. Id. at 774 (quoting Temple-Inland Forest Prods. Corp. v. Carter, 993 S.W.2d 88, 95 (Tex.1999)). In considering dose in the asbestosis context, the Court explained that “substantial-factor causation, which separates the speculative from the probable, need not be reduced to mathematical precision. Defendant-specific evidence relating to the approximate dose to which the plaintiff was exposed, coupled with evidence that the dose was a substantial factor in causing the asbestos-related disease, will suffice.” Id. at 773. The Court further noted “that proof of causation may differ depending on the product at issue[.]” Id.

Pink argues that the quantitative dose analysis required by Borg-Warner does not apply here. See id. at 772-73. While agreeing generally that “the dose makes the poison,” Pink apparently disputes the existence of any measurably “safe” or threshold dose for benzene, a known carcinogen. See id. at 770 (dose and poison); Ellender, 968 S.W.2d at 922 (contention that the only “safe” level of benzene exposure was “zero”); see also Pollock, 284 S.W.3d at 813; McCelvey v. State, 143 S.W.3d 522, 528, 537 (Tex.App.-Austin 2004, pet. ref'd) (benzene as known carcinogen).

Pink also contends the summary judgment evidence establishes (1) that, as the sole employer, Goodyear is responsible for all of Pink’s significant benzene exposure; and (2) Pink received substantial skin and inhalation exposure above any permissible or threshold level by bathing his hands in benzene. For these reasons, Pink argues, no quantification of dose is necessary. Goodyear responds that “if the evidence in this case is as [Pink] characterizes it— substantial, significant exposure to large, vast amounts of benzene — then Borg-Warner’s quantitative requirement is not an onerous standard to meet.”

The LacK of a Robinson HeaRing Record

A trial court has a heightened responsibility to act as a gatekeeper to screen out unreliable expert evidence. Gen. Motors Corp. v. Sanchez, 997 S.W.2d 584, 590 (Tex.1999); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998); see E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 556-57 (Tex.1995). The examination of an expert’s methodology, technique, or foundational data is a task for the trial court in its role as gatekeeper. Coastal Transp. Co., 136 S.W.3d at 233 (citing Maritime Overseas Corp., 971 S.W.2d at 412). But, generally, a Robinson determination is “not an analysis that should be undertaken for the first time on appeal.” Id. By requiring that the trial court address the issue first, “a full record will be developed,” and this Court will be able to evaluate the “sufficiency of the evidence without looking beyond the appellate record.” Id.

Pink contends this Court need not decide the reliability issues raised by Goodyear in this appeal, because Goodyear waived its reliability objections challenging the expert’s foundational data by failing to obtain a ruling on the objections. Generally, a party is required to obtain an express ruling on its objections to summary judgment evidence. See Mitchell v. Baylor Univ. Med. Ctr., 109 S.W.3d 838, 842 (Tex.App.-Dallas 2003, no pet.); Well Solutions, Inc. v. Stafford, 32 S.W.3d 313, 317 (Tex.App.-San Antonio 2000, no pet.).

[R]ulings on a motion for summary judgment and objections to summary judgment evidence are not alternatives; nor are they concomitants. Neither implies a ruling — or any particular ruling — on the other. In short, a trial court’s ruling on an objection to summary judgment evidence is not implicit in its ruling on the motion for summary judgment; a ruling on the objection is simply not “capable of being understood” from the ruling on the motion for summary judgment.

Stafford, 32 S.W.3d at 317. A ruling sustaining Goodyear’s objections to the causation opinion is not implicit in the trial court’s ruling on the motion for summary judgment. See id. Specifically, Goodyear’s motion asserted no-duty and no-breach as independent grounds for summary judgment, and the trial court may have erroneously granted the motion on either of those grounds without considering the Robinson objections to the causation affidavit. Generally, “[e]vidence that has been objected to remains part of the summary judgment proof unless an order sustaining the objection is reduced to writing, signed, and entered of record.” Mitchell, 109 S.W.3d at 842; but see Trusty v. Strayhorn, 87 S.W.3d 756, 759-60 (Tex.App.-Texarkana 2002, no pet.) (discussing implicit rulings).

A contrary conclusion, that the trial court implicitly sustained Goodyear’s objections and found the causation affidavit unreliable and so inadmissible, would require, arguably, that two standards of review be applied here, but without a record of the Rule 104(a) determination. See Tex.R. Evid. 104(a); see generally Munoz v. Orr, 200 F.3d 291, 300 (5th Cir.2000) (recognizing different standards of review in federal court); but see Frias v. Atl. Richfield Co., 104 S.W.3d 925, 927-28 (Tex.App.-Houston [14th Dist.] 2003, no pet.) (applying only abuse of discretion standard). A ruling excluding evidence as unreliable under Robinson is reviewed under an abuse of discretion standard. See Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex.2009). A no-evidence summary judgment is reviewed under the same legal sufficiency standard as applied to a directed verdict. King Ranch, Inc., 118 S.W.3d at 750-51 (legal sufficiency standard). We apply the summary judgment standard in this appeal. If the trial court did not abuse its discretion in implicitly sustaining the Robinson challenge, however, there would be no affidavit by the treating oncologist to consider and no causation evidence in response to the no-evidence motion for summary judgment. In practical effect, this approach would reduce the summary judgment appellate review standard to an abuse of discretion standard whenever case-determinative Robinson objections, coupled with a no-evidence motion for summary judgment, are considered implicitly sustained by the granting of summary judgment. Whether or not the trial court abused its discretion in sustaining the Robinson objections would be determinative on appeal of whether the summary judgment must be reversed or affirmed.

A fusion of review standards cannot be avoided simply by requiring an express ruling on the Robinson challenge, along with a ruling on the no-evidence summary judgment motion, but an express Rule 104(a) determination does clarify the process followed in the trial court, and notifies the nonmovant that the expert’s opinion is ruled inadmissible before summary judgment is granted. An express ruling tells the parties and the appellate court “what summary judgment evidence was considered by the trial court in reaching its decision.” Crocker v. Paulyne’s Nursing Home, Inc., 95 S.W.3d 416, 420 (Tex.App.-Dallas 2002, no pet.). An opportunity to cure a defect in summary judgment evidence is provided in the summary judgment rule. See Tex.R. Civ. P. 166a(f) (opportunity to cure defects in form of affidavits and attachments); Tex.R. Civ. P. 166a(g) (Trial court may allow opportunity to obtain additional affidavit or deposition testimony to support claims.). Because Rule 705(a) allows the expert to express an opinion without first introducing the underlying facts or data, unless the court requires the disclosure, an express ruling notifies the nonmovant of that ruling as well and permits an opportunity to comply with the ruling. See Tex.R. Evtd. 705(a).

The NeCessity for an Express Ruling on Goodyear’s Objections

We conclude an express ruling on Goodyear’s Robinson objections to the methodology, technique, or foundational data was required to exclude as unreliable the treating oncologist’s causation opinion. See Mitchell, 109 S.W.3d at 842; Crocker, 95 S.W.3d at 420 (“It is well established that rulings on summary judgment evidence must be reduced to writing.”); but see Weiss v. Mech. Associated Servs., Inc., 989 S.W.2d 120, 124 n. 6 (Tex.App.-San Antonio 1999, pet. denied) (“[T]he trial court’s order is, in effect, a ruling on the defendant’s Robinson challenge.”). When a party submits both this type of a Robinson challenge and a no-evidence motion for summary judgment, the trial court is presented with two different applicable procedures. See David Hittner & Lynne Liber-ato, Summary Judgments in Texas: State and Federal Practice, 46 Hous. L. Rev. 1379, 1450 (2010); Harvey Brown, Procedural Issues Under Daubert, 36 Hous. L. Rev. 1133, 1148-49 (1999). In a Robinson hearing, the party offering the expert’s testimony has the burden to show the testimony is admissible, and “[i]n making its determination the court is not bound by the rules of evidence except those with respect to privileges.” See Tex.R. Evid. 104(a); Robinson, 923 S.W.2d at 557-58. The summary judgment rule states that “[n]o oral testimony shall be received” at the summary judgment hearing. Tex.R. Civ. P. 166a(c). Yet, when considering a Robinson challenge in a Rule 104(a) hearing, a trial court should allow the offering party an opportunity to present the best available evidence, which may include oral testimony. See Maritime Overseas Corp., 971 S.W.2d at 411. If the evidence is admissible in a summary judgment proceeding, the court must assume that the evidence favorable to the nonmovant is true. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). Considered with notice and opportunity-to-be-heard principles, these differences require that the two proceedings be separate under the circumstances of this case, and that we not consider Goodyear’s reliability objections as implicitly sustained by the trial court.

The Supreme Court has considered an appeal in which the trial court first held a Rule 104(a) hearing, and then ruled on a motion for summary judgment. See Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 716-18 (Tex.1998); see also Tex.R. Evid. 104(a); see also generally Munoz, 200 F.3d at 300 (recognizing different standards of review); Alcan Aluminum Corp. v. BASF Corp., 133 F.Supp.2d 482, 493 (N.D.Tex.2001), aff'd, 51 Fed.Appx. 482 (5th Cir.2002). By conducting a separate Robinson hearing before considering a no-evidence motion for summary judgment, the trial court applies the process applicable to each hearing, provides the parties notice and an opportunity to present the best available evidence, and provides the appellate court with a full record for review. That process is required here.

Conclusion

The summary judgment process is intended to dispose of “patently unmeritorious” claims when a full eviden-tiary hearing is unnecessary. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 n. 5 (Tex.1979); see also generally Kennedy v. Silas Mason Co., 334 U.S. 249, 256-57, 68 S.Ct. 1031, 92 L.Ed. 1347 (1948) (federal summary judgment procedure “salutary where issues are clear-cut and simple[.]”). The summary judgment procedure is not intended to deprive a party of a right to a full hearing on the merits of any real issue of fact. See Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952); see also generally Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944) (Summary judgment is appropriate “where it is quite clear what the truth is[.])”. The process missing from this appellate record, and necessary in this case, is a Robinson hearing. See generally Tex.R. Evid. 104(a). If the trial court decides the affidavit must be stricken because of unreliable foundational data, methodology, or technique, or for some other reason, the trial court may then decide whether to grant the no-evidence summary judgment, or “order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.” See Tex.R. Civ. P. 166a(g). Without an express ruling that the treating oncologist’s causation opinion is unreliable, however, the treating oncologist’s affidavit remains part of the summary judgment proof and provides some evidence to defeat the no-evidence motion for summary judgment on causation. See Mitchell, 109 S.W.3d at 842 (objected-to evidence remains part of summary judgment proof without an order expressly sustaining the objection); Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W.2d 464, 466 (Tex.App.-Texarkana 1998, pet. denied).

We affirm the judgment as to Texaco. We reverse the summary judgment granted Goodyear for the reasons stated, and remand the case for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

STEVE McKEITHEN, Chief Justice,

concurring in part and dissenting in part.

I concur in the majority’s opinion affirming the judgment as to Texaco. I respectfully dissent to the reversal of the judgment that pertains to Goodyear.

Goodyear’s motion for summary judgment asserted there was no evidence of duty, breach, or proximate cause. On appeal, Goodyear asserts that no evidence supports Pink’s claim that workplace exposure to benzene caused Veryl Pink’s terminal cancer. I agree. Pink argues, and the majority agrees, that Dr. Kanojia’s affidavit presents more than a scintilla of evidence that Veryl Pink’s cancer was caused by workplace exposure to benzene. In his affidavit, Dr. Kanojia explains his opinion and its basis, as follows:

I was Veryl Pink’s treating oncologist. Mr. Pink was diagnosed with renal cell carcinoma, which was confirmed by biopsy. The ultimate cause of Mr. Pink’s death was the progression of the disease.
Based upon reasonable medical probability it is my opinion that the cause of Mr. Pink’s renal cell carcinoma was exposure to chemicals, most likely benzene. In rendering this opinion I have reviewed Mr. Pink’s medical records, the deposition testimony of Mr. Pink and three of his co-workers, the deposition of Dr. Radelt, and scientific literature.

“Bare, baseless opinions will not support a judgment even if there is no objection to their admission in evidence.” City of San Antonio v. Pollock, 284 S.W.3d 809, 816 (Tex.2009). A conclusory statement by an expert cannot be considered probative evidence “if no basis for the opinion is offered, or the basis offered provides no support[J” Id. at 818. Kanojia’s affidavit lacks three preliminary assessments that are necessary to establish that exposure to benzene caused renal cell carcinoma in Ve-ryl Pink: (1) an analysis of whether renal cell carcinoma “can be related to chemical exposure by a biologically plausible theory[;]” (2) an examination of whether Veryl Pink was exposed to benzene “in a manner that can lead to absorption into the body[;]” and (3) an opinion as to whether the dose to which Veryl Pink was exposed is sufficient to cause renal cell carcinoma. See Borg-Warner Corp. v. Flores, 232 S.W.3d 765, 771 (Tex.2007). The majority correctly points out that Kanojia’s affidavit neither discloses what scientific literature was consulted nor identifies what the literature states. This amounts to no evidence regarding causation. Although the basis for Dr. Kanojia’s opinion that Veryl Pink died from renal cell carcinoma is evident from the affidavit, the same cannot be said for Dr. Kanojia’s opinion that benzene exposure caused Veryl Pink’s renal cell carcinoma. Benzene exposure may or may not be a known cause of renal cell carcinoma, but Dr. Kanojia’s affidavit neither states that benzene exposure is a known cause of renal cell carcinoma nor explains how Dr. Kanojia’s training and experience enable him to express an opinion regarding whether benzene causes renal cell carcinoma. Because the affidavit amounts to no evidence, no Robinson hearing was required.

The summary judgment evidence includes the deposition testimony of Hamilton Cooper. Cooper testified that in the late 1960s and early 1970s, workers at the Goodyear facility washed their hands in benzene. He did not wear a respirator when he washed his hands in benzene. Cooper testified that he saw Veryl Pink wash his hands in benzene, but Cooper did not indicate whether that observation was a single incident or a common occurrence. The summary judgment record contains no evidence concerning the long-term effect of washing one’s hands in benzene either once or over a period of time. There is summary judgment evidence that Veryl Pink received direct exposure to benzene on at least one occasion, and it may be inferred that he could have been exposed to benzene to some extent throughout the late 1960s and early 1970s, but the summary judgment record does not supply evidence regarding the effect of exposure to benzene on one’s health.

This case presents a much more fundamental analytical gap than the deficiency found in Borg-Warner. See Borg-Warner, 232 S.W.3d at 771-72. In that case, the plaintiffs expert identified a treatise that discussed the asbestos-related risks to brake mechanics and testified that a 1968 article explained that respirable fibers remain after the braking process so that brake mechanics can be exposed to them. Id. at 767. The evidence was insufficient because there was “no evidence of the approximate quantum of Borg-Warner fibers to which Flores was exposed, and whether this sufficiently contributed to the aggregate dose of asbestos Flores inhaled, such that it could be considered a substantial factor in causing his asbestosis.” Id. at 772. Here, Dr. Kanojia provides no information relating kidney cancer to benzene, either as a dose-related disease caused by benzene exposure or through some disease-causing mechanism that is unrelated to dose. The only information Dr. Kanojia provides regarding why in his opinion the cause of Veryl Pink’s renal cell carcinoma was “exposure to chemicals, most likely benzene” is his review of “Mr. Pink’s medical records, the deposition testimony of Mr. Pink and three of his coworkers, the deposition of Dr. Radelt, and scientific literature.” In the absence of any explanation of how the records, testimony, and literature supported his opinion on medical causation, Dr. Kanojia’s affidavit is mere ipse dixit of a credentialed witness. See Pollock, 284 S.W.3d at 816. Pink not only provided no quantitative proof that Veryl Pink experienced benzene exposure sufficient to cause his disease, Pink provided no evidence that any quantity of benzene exposure will cause renal cell carcinoma.

The summary judgment evidence does not establish a fact issue regarding whether Veryl Pink’s exposure to benzene while working at the Goodyear plant was a substantial factor in the development of the renal cell carcinoma that led to his death. Because Pink failed to produce any evidence sufficient to raise a fact issue on at least one element of each of Pink’s claims against Goodyear, the trial court did not err in granting Goodyear’s motion for summary judgment. I would affirm the judgment as to Goodyear.

      . The motion is only authorized "[a]fter adequate time for discovery” has been provided. Tex.R. Civ. P. 166a(i). When the discovery period is set "by pretrial order,” "ordinarily a motion under paragraph (i) would be permitted after the period but not before.” Tex.R. Civ. P. 166a(i), cmt. to 1997 change; see also Sarah B. Duncan, No-Evidence Motions for Summary Judgment: Harmonizing Rule 166a(i) and Its Comment, 41 S. Tex. L. Rev. 873, 900 (2000). Pink notes that Goodyear filed its amended no-evidence motion for summary judgment before the expiration of the discovery period set out in the trial court’s docket control order. See Tex.R. Civ. P. 166a(i) & cmt. to 1997 change. Pink’s response in the trial court argued that the motion was premature, and that the hearing should be continued until after the completion of discovery. Because on appeal Pink does not brief the question of the timing of the summary judgment, however, we do not address that question.

      . The affidavit of the treating oncologist states he was out of town for two weeks and "unavailable to provide an affidavit to Plaintiff's counsel.”

      . "At room temperature and standard pressure, benzene is a clear liquid with a sweet smell, but it evaporates quickly and is highly flammable.... Benzene is a known carcinogen.” City of San Antonio v. Pollock, 284 S.W.3d 809, 813 (Tex.2009) (citing information from a report prepared for the City of San Antonio). "[T]he OSHA standard for maximum exposure to benzene in the work place is 1 ppm[.]” Id. at 819 (citing 29 C.F.R. § 1910.1028(c)(1) (2008)).

      . In a footnote in its appellate brief, Goodyear notes that Dr. Kanojia's oral deposition (see Tex.R. Civ P. 195.4) was taken after the summary judgment hearing, and "is not part of the summary judgment evidence in this case,” but nevertheless argues the testimony establishes his lack of knowledge of the necessary "level of benzene exposure.” Generally, an appellate court confines its review to the summary judgment evidence considered by the trial court. See Arredondo v. Rodriguez, 198 S.W.3d 236, 239 n. 1 (Tex.App.-San Antonio 2006, no pet.) ("We will not consider evidence that the trial court itself did not consider.”)

      . Resolution of the overlapping issues necessarily turns on the circumstances of the particular case under review. Trial courts have discretion on "how to hold” a Robinson hearing. See Piro v. Sarofim, 80 S.W.3d 717, 720 (Tex.App.-Houston [1st. Dist.] 2002, no pet.) ("The lawyers did not present authority — either at trial or on appeal — that Robinson requires such a live hearing, and we are not aware of any."). In some instances, appellate courts have concluded a trial court is not required to hold a separate hearing. See Rayon v. Energy Specialties, Inc., 121 S.W.3d 7, 19-20 (Tex.App.-Fort Worth 2002, no pet.); Weiss v. Mech. Associated Servs., Inc., 989 S.W.2d 120, 124 n. 6 (Tex.App.-San Antonio 1999, pet. denied). Nonmovants have been well-advised to provide detailed affidavits or deposition testimony to preclude a reliability challenge, and to request a continuance or a Robinson hearing if necessary, regardless of Rule 705(a), any due process considerations, or the lack of a requirement "to marshal its proof" in response to a no-evidence motion for summary judgment. See Praytor v. Ford Motor Co., 97 S.W.3d 237, 246 (Tex.App.-Houston [14th Dist.] 2002, no pet.); see also Tex.R. Civ. P. 166a & cmt. to 1997 change. See David Hittner & Lynne Liberato, Summary Judgments in Texas: State and Federal Practice, 46 Hous. L.Rev. 1379, 1450 (2010); 3 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Practice § 18:19 (2d ed. 2000 & Supp. 2009); Harvey Brown, Procedural Issues Under Daubert, 36 Hous. L. Rev. 1133, 1148-49 (1999). To do otherwise is to risk "final decisions on procedural grounds[.]” Gonzalez v. U.S. Fid. & Guar. Co., 154 Tex. 118, 274 S.W.2d 537, 540-41 (1955).


source: Caselaw Access Project

author: DAVID WELLINGTON CHEW, Chief Justice.

license: Public Domain

text:
    TEXAS MUTUAL INSURANCE COMPANY, Appellant, v. SARA CARE CHILD CARE CENTER, INC. and Martha Martinez, Appellees.
    No. 08-08-00192-CV.
    Court of Appeals of Texas, El Paso.
    Sept. 15, 2010.

      R. Scott Placek, Arnold & Placek, P.C., Round Rock, TX, for appellant.
    Javier Martinez Jr., El Paso, TX, for appellee Martha Martinez.
    Colbert Coldwell, Guevara, Rebe, Bau-mann, Coldwell & Reedman, L.L.P., El Paso, TX, for appellee Sara Care Child Care Center, Inc.
    Before CHEW, C.J., RIVERA, J., and LARSEN, J.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Texas Mutual Insurance Company appeals from two summary judgment orders, and a final judgment following a bench trial, all in favor of its insured, Sara Care Child Care Center, Inc. (“Sara Care”), and the insured’s employee, Martha Martinez. The insurer argues the first summary judgment, affirming the Texas Workers’ Compensation Commission Appeals Panel decision in the claimant’s favor was in error, due to the panel’s reliance on Texas Labor Code Section 406.008. Texas Mutual continues by challenging the trial court’s partial summary judgment on the issue of its liability to Sara Care for the insured’s extra-contractual claims for affirmative relief. The insurer concludes that the trial court’s final judgment, including attorney’s fees, and statutory additional damages must be reversed, and judgment rendered in its favor, due primarily to errors in the summary judgments. In support of its request for reversal, Texas Mutual also raises an issue challenging the trial court’s rulings on Sara Care’s objections to the carrier’s summary judgment evidence. We reverse and remand in part and affirmed in part.

Sara Care Child Care Center, Inc. operated the child care center at the University of Texas at El Paso. In July 2001, Sara Care purchased a one year workers’ compensation insurance policy from Texas Mutual Insurance Company (“TMI”). The policy provided Sara Care with coverage for workers’ compensation claims August 4, 2001 to August 4, 2002. By letter dated June 6, 2002, TMI notified Sara Care that its policy was scheduled to expire on August 4. The letter specifically stated, in bold typeface, that it was “not a cancellation,” and that the insurer “look[ed] forward to continuing to serve as [Sara Care’s] worker’s compensation carrier” in the next policy term. TMI’s agent, The Treiber Group, sent Sara Care a premium quote for the 2002-2003 policy year sometime prior to the 2001-2002 policy’s expiration. However, due to a mis-communication with the insurance agent, Sara Care failed to pay its 2002-2003 premium until August 24, 2002.

In 2002, Martha Martinez was one of Sara Care’s employees. She suffered a work-related injury on August 20, 2002. TMI denied that Sara Care was covered on the date of the injury, and refused to cover Ms. Martinez’s claim. Sara Care paid Ms. Martinez’s medical bills in the amount of $30,020.48. On May 13, 2004, Sara Care filed suit against TMI, alleging the insurer wrongfully denied coverage for Ms. Martinez’s injuries. The employer asserted causes of action for breach of contract, negligence, violations of the Texas Insurance Code, the Texas Deceptive Trade Practices Act, and promissory es-toppel. Following TMI’s original answer, in which it asserted the trial court lacked jurisdiction over the case due to Sara Care’s failure to exhaust its administrative remedies, the parties entered into a Rule 11 agreement, in which they agreed to abate the case in the trial court pending a final decision from the Texas Workers’ Compensation Commission (“the Commission”).

The Commission held a contested case hearing on April 8, 2005. The hearing officer determined: (1) that TMI did not provide workers’ compensation coverage for Sara Care on August 20, 2002; (2) that TMI did not waive its right to contest compensability of the claimed injury; and (3) that Ms. Martinez did not sustain a compensable injury. Sara Care appealed the hearing officer’s decision to the Commission appeals panel. The appeals panel reversed the hearing officer’s decision, finding that due to TMI’s failure to comply with the cancellation or nonrenewal notice requirements of Section 406.008 of the Texas Labor Code, Sara Care’s workers’ compensation coverage under the 2001-2002 policy was extended, and provided coverage on the date Ms, Martinez was injured. The panel noted that on June 6, 2002, the Commission received a notice of intent to cancel or non-renew Sara Care’s policy, and that it was unclear whether this notice was included with TMI’s June 5 letter to Sara Care. Based on this evidence, the panel determined that TMI had not complied with the notice requirements for policy cancellation, and concluded Sara Care’s policy was statutorily extended due to that failure. The appeals panel also determined that TMI waived its right to contest the compensability of Ms. Martinez’s injury by failing to notify the Commission and the claimant of its refusal to provide coverage within the seven-day limitations period of Labor Code Section 409.021. Accordingly, the appeals panel reversed the hearing officer’s decision, and rendered a new decision in Sara Care’s favor.

On July 22, 2005, TMI filed a Petition for Judicial Review of the appeals panel decision in the trial court where the parties had previously agreed to abate the case. In the petition, TMI contested the appeals panel’s findings that Sara Care was covered by its policy on August 20, 2002, and that it waived its right to contest compensability. The parties proceeded with discovery on both Sara Care’s original petition, and TMI’s petition for judicial review until March 2006.

On March 21, 2006, Sara Care filed a hybrid motion for summary judgment, seeking an affirmance of the appeals panel’s decision on both contested issues. In large part, the motion relied on the policy extension provision of Section 406.008, and the lack of evidence that TMI complied with the notice requirements for policy cancellation or nonrenewal. TMI responded primarily, and for the first time, that summary judgment was improper because the basis of the appeals panel decision, Section 406.008 was inapplicable in this case. In the alternative, TMI argued that a fact issue remained regarding its compliance with the statute. Sara Care replied to TMI’s response with numerous objections to the insurer’s summary judgment evidence, and by arguing that TMI had waived the argument that Section 406.008 was not applicable, because the issue was not raised in the administrative proceedings. The trial court sustained Sara Care’s evidentiary objections, and granted Sara Care’s motion on June 13, 2006 (“the preliminary” or “judicial review” summary judgment).

Approximately a month after the trial court’s judicial review summary judgment, Sara Care filed another hybrid summary judgment motion, requesting summary judgment as to TMI’s liability to the employer for the causes of action raised in its original petition. TMI responded with its own hybrid motion for summary judgment, arguing that Sara Care could not establish TMI’s liability as a matter of law. The insurer also moved for summary judgment on the basis that Sara Care’s request for attorney’s fees was legally unsupported. The trial court granted Sara Care’s second motion for summary judgment as to TMI’s liability for breach of contract, violations of the Texas Insurance Code, violations of the Texas DTPA, and promissory estoppel on December 12, 2006. The court also noted that the only fact issues remaining in the case were: (1) whether TMI acted knowingly with respect to its statutory violations; and (2) the amount of attorney’s fees due to the claimants.

The parties proceeded to a bench trial on November 19, 2007. On March 3, 2008, the trial court entered its final judgment in favor of Sara Care. The court determined that TMI did act “knowingly” in its violations of the Insurance Code and the DTPA, and concluded Sara Care was entitled to treble damages pursuant to the statutes. The court awarded Sara Care $90,061.44 in damages, less a $28,000 credit for Sara Care’s prior settlement with its insurance agent, plus pre- and post-judgment interest and attorney’s fees. The court also entered an attorney’s fee award for Ms. Martinez. Following the denial of its motion for new trial by operation of law, TMI timely filed its notice of appeal to this Court.

TMI raises six issues for our review. In Issue One, TMI challenges the trial court’s judicial review summary judgment. In Issues Two and Three, respectively, TMI contends the trial court erred by granting Sara Care’s motion for partial summary judgment on the insurer’s liability for its additional causes of action, and also erred by denying TMI’s cross-motion for summary judgment on those claims. In Issue Four, TMI contends the trial court’s “knowingly” finding is unsupported by the evidence. In Issue Five, TMI challenges the court’s attorney’s fee awards to both Sara Care and Ms. Martinez. In Issue Six, TMI contends the trial court abused its discretion by sustaining Sara Care’s objections to its summary judgment evidence, as reflected in the trial court’s judicial review summary judgment. Because it affects our analysis of Issue One, we will address TMI’s evidentiary challenge first. We will address the remaining issues in the order they are presented.

In Issue Six, TMI challenges the trial court’s rulings sustaining Sara Care’s objections to several exhibits included in the carrier’s response to Sara Care’s preliminary motion for summary judgment. To be considered by the trial court, or the reviewing court, summary judgment evidence must be admissible under the same standards required of evidence introduced at trial. See United Blood Services v. Longoria, 938 S.W.2d 29, 30 (Tex.1997). We review a trial court’s evidentiary rulings for an abuse of discretion. Riddle v. Unifund CCR Partners, 298 S.W.3d 780, 782 (Tex.App.-El Paso 2009, no pet.). A trial court abuses its discretion if it makes a decision which is arbitrary, unreasonable, or without reference to guiding rules and principles of law. See Riddle, 298 S.W.3d at 782. Moreover, a judgment will not be reversed due to an erroneous evi-dentiary ruling unless the error probably caused the rendition of an improper judgment. See id.

In its judicial review summary judgment response, TMI included nine exhibits. Sara Care objected to Exhibits One, Two, Five, and Seven on the grounds that the documents were improper summary judgment evidence because they were inadmissible pursuant to Texas Labor Code Section 410.161. The trial court granted Sara Care’s objections and excluded the evidence in its written summary judgment order. Those excluded exhibits were:

Exhibit 1: an affidavit by Ms. Carolyn Howell
Exhibit 2: a copy of Sara Care’s worker’s compensation policy with TMI from August 4, 2001 though August 4, 2002
Exhibit 5: a copy of a letter dated June 20, 2002, from TMI to its insurance agent John Treiber, indicating the insurer had reviewed Sara Care’s account, was “pleased to offer the enclosed quotation for Workers’ Compensation coverage.”
Exhibit 7: a copy of Sara Care’s workers’ compensation policy from August 2002 through August 2003

Section 410.161 prohibits the use of any documents which a party fails to disclose as required by the Labor Code, from being introduced as evidence in any subsequent proceeding, including the trial court, absent a demonstration of good cause by the proponent of the evidence. See Tex.Lab. Code Ann. § 410.161 (Vernon 2006). Section 410.161 required TMI to demonstrate: (1) the documents were not in the carrier’s possession custody or control at the time they were required to be disclosed; (2) that the documents were timely and properly disclosed; or (3) that there was good cause to admit the documents despite the fact that they had not been disclosed in the administrative proceedings. See State Office of Risk Management v. Trujillo, 267 S.W.3d 349, 352-53 (Tex.App.-Corpus Christi 2008, no pet.).

It is not disputed that the documents at issue here were within the carrier’s possession, custody, or control at the time they were required to be disclosed. However, TMI argues the trial court abused its discretion by sustaining Sara Care’s objections because there is evidence that the documents had been disclosed in the commission proceedings, or because TMI was not given an opportunity to demonstrate “good cause” existed to make the documents admissible.

With regard to TMI’s first argument, the carrier relies heavily on an exchange between the trial court and its attorney during a hearing on its own motion to compel evidence held on April 20, 2006. According to the transcript, during the hearing, TMI offered documentation to the trial court indicating the summary judgment evidence was produced prior to the administrative proceedings. It is not clear what those documents were, or whether they are included in the record before us. At the close of the hearing, the trial court did not rule on the objections, but asked the parties to continue with discovery, and instructed the parties to supplement their motions on the evidentiary issues before the court would rule on the summary judgment. Neither party filed any further documents on this issue prior to the court’s judgment on June 13, 2006.

To the extent, this exchange can be considered as evidence related to the trial court’s ruling on TMI’s summary judgment evidence, it is evidence of a request for more information from the parties. Neither party filed any documentation related to the preliminary summary judgment until after the court issued its order sustaining Sara Care’s objections and granting Sara Care’s motion on June 13, 2006. Approximately one month later, TMI filed a motion to reconsider, urging the same admissibility arguments it has included in its brief to this Court. While the motion to reconsider did contain a new exhibit, an affidavit by TMI employee Ms. Susan Perkins, the carrier failed to explain how this new affidavit either demonstrated its compliance with Section 410.161, or established good cause.

We are also unpersuaded by TMI’s argument that it was not given an opportunity to cure the alleged deficiencies. Based on the same conversation between TMI’s counsel and the trial court, it seems TMI was invited to supplement the summary judgment record with evidence demonstrating the admissibility of its evidence. In its brief to this Court, TMI asserts that it did not file any supplemental summary judgment documents because the trial court had instructed the parties to take several depositions before the court made its decision, and that those depositions were never scheduled, or were not scheduled prior to the court entering its summary judgment order. TMI fails to explain, however, how these depositions would have changed its response or provided a basis for the admissibility of the evidence. Therefore, based on the record before us, the trial court did not abuse its discretion by sustaining Sara Care’s objections. Issue Six is overruled.

Issues One, Two, and Three challenge the trial court’s two summary judgments in favor of Sara Care. These issues address Sara Care’s preliminary and liability-only motions, and TMI’s cross-motion for liability-only summary judgment. All three motions were hybrid motions, presenting both traditional and no-evidence grounds for summary judgment.

A no-evidence motion for summary judgment is essentially a pretrial motion for directed verdict, and we apply the same legal sufficiency standard of review. Gray v. Woodville Health Care Center, 225 S.W.3d 613, 616 (Tex.App.-El Paso 2006, pet. denied). A no-evidence summary judgment movant must specify which essential elements are devoid of evidentiary support. Aguilar v. Morales, 162 S.W.3d 825, 834 (Tex.App.-El Paso 2005, pet. denied). The burden then shifts to the non-movant to produce summary judgment evidence raising a genuine issue of material fact regarding each challenged element. Aguilar, 162 S.W.3d at 834. The non-movant meets this burden, by producing more than a mere scintilla of evidence in support of each challenged element. See Gray, 225 S.W.3d at 616. When, as here, the trial court fails to specify which no-evidence ground served as the basis for its ruling, we must review each ground raised in the motion, and the judgment will be affirmed if any of the theories prove meritorious. Id. at 616-17.

As with any summary judgment ruling, a traditional summary judgment is subject to de novo review. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). To succeed on a traditional motion for summary judgment, the movant must establish that there is no genuine issue of material fact so that judgment should be granted as a matter of law. Diversicare Gen. Partner., Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex.2005). Summary judgment is therefore properly granted if the defendant disproves at least one essential element of the plaintiffs cause of action, or establishes all essential elements of an affirmative defense. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002); Shah v. Moss, 67 S.W.3d 836, 842 (Tex.2001). If the movant is successful in establishing its right to judgment as a matter of law, the burden then shifts to the non-movant to produce evidence raising a genuine issue of material fact. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979). Similar to review under the no-evidence standard, in a traditional summary judgment, the reviewing court will take as true all competent evidence favorable to the non-movant, indulge every reasonable inference, and resolve any doubts in the non-movant’s favor. See Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). Unlike a no-evidence motion however, a traditional motion for summary judgment must stand or fall on its own merit, there is no right to a traditional summary judgment by default. See City of Houston, 589 S.W.2d at 678. When there are multiple grounds for summary judgment, and the trial court’s order does not specify on which ground the judgment was rendered, the appealing party must negate all grounds on appeal. Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex.App.-Houston [1st Dist.] 2002, no pet.), citing State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex.1993). If summary judgment may have been granted on a ground not challenged, regardless of the propriety if such a ruling, the judgment must be affirmed. Ellis, 68 S.W.3d at 898.

In Issue One, TMI challenged the trial court’s summary judgment on its petition for judicial review. TMI’s petition requested reversal of the Appeals Panel decision on both coverage and compensa-bility. On the issue of coverage, TMI challenged the panel’s decision that its failure to comply with Section 406.008 of the Texas Labor Code resulted in an extension of coverage for Sara Care. On the issue of carrier waiver, TMI sought review of the panel’s decision that the carrier waived its right to dispute com-pensability by failing to contest the case within the statutory seven-day limitations period.

Sara Care’s motion for summary judgment on TMI’s petition included two grounds. First, it argued there was no-evidence that TMI provided proper notice of its intent to cancel the policy in accordance with Texas Labor Code Section 406.008. Under the traditional summary judgment standard, Sara Care argued that the record demonstrated as a matter of law that TMI failed to give proper cancellation notice, thereby extending the term of the policy.

An appeals panel’s decision on issues of compensability are reviewed under a modified de novo standard. Fireman’s Fund Ins. Co. v. Weeks, 259 S.W.3d 335, 339 (Tex.App.-El Paso 2008, pet. denied). The party who appeals the administrative decision bears the burden of proof by a preponderance of the evidence. Tex.Lab. Code AnN. § 410.303 (Vernon 2006). In the case of a bench trial, the court “shall consider” the Appeals Panel decision. Tex. Lab.Code Ann. § 410.304(b). However, the court is not required to accord the administrative decision any particular weight. Weeks, 259 S.W.3d at 339.

TMI argues the trial court erred by granting the preliminary summary judgment because: (1) the policy expired prior to the date of Ms. Martinez’s injury due to Sara Care’s failure to timely renew the policy; and (2) Texas Labor Code Section 406.008, does not apply to extend Sara Care’s coverage in this instance because this is not a nonrenewal, or a cancellation case. TMI continues by arguing that if Section 406.008 is applicable, there is an issue of material fact as to its compliance with the notice requirements. In response, Sara Care contends that TMI waived judicial review of the applicability of Section 406.008 by failing to raise the issue during the administrative proceedings, as required by Section 410.302. See Tex.Lab.Code Ann. § 410.302(b).

The relationship between Sections 406.008 and 410.302(b) of the Labor Code is a legal issue requiring an analysis under the cannons of statutory construction. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008)(noting that statutory construction is a legal question subject to de novo review). Because the preliminary summary judgment turns on a purely legal issue, and Sara Care’s motion does not challenged an essential element of a cause of action or affirmative defense raised by TMI, we will conduct our review under the traditional summary judgment standard only. See Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165, 168 (Tex.App.-Texarkana 2000, pet. denied); see also Tex. R.CivP. 166a(i)(providing that a party may move for no-evidence summary judgment, “on the ground that there is no evidence of one or more essential elements of a claim or defense ...” on which the opposing party would bear the burden of proof at trial).

When addressing an issue of statutory construction, our primary objective is to determine the Legislature’s intent in enacting a particular provision, and to give that provision its intended effect. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003). We must interpret the statute according to the plain meaning of the language used, and must read the statute as a whole without giving effect to certain provisions at the expense of others. See City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex.2003); In the Interest of J.I.M., 281 S.W.3d 504, 507 (Tex.App.-El Paso 2008, pet. denied). Each word, phrase, or expression must be read as if it were deliberately chosen, and we will presume that words excluded from a provision were excluded purposefully. Gables Realty Ltd. P’ship v. Travis Cent. Appraisal Dist., 81 S.W.3d 869, 873 (Tex.App.-Austin 2002, pet. denied). “Construction of a statute by the administrative agency charged with its enforcement is entitled to serious consideration, so long as the construction is reasonable and does not contradict the plain language of the statute.” Tarrant Appraisal Dist. v. Moore, 845 S.W.2d 820, 823 (Tex.1993).

The TWCC Appeals Panel determined Sara Care was covered by the policy at the time of Ms. Martinez’s injury based on the policy extension provision of Section 406.008. This provision, titled “Cancellation or Nonrenewal of Coverage Insurance Company; Notice,” provides in relevant part:

(a) An insurance company that cancels a policy of workers’ compensation insurance or that does not renew the policy by the anniversary date of the policy shall deliver notice of the cancellation or nonrenewal by certified mail or in person to the employer and the division no later than:
(1) the 30th day before the date on which the cancellation or nonrenewal takes effect; or
(2) the 10th day before the date on which the cancellation or nonrenewal takes effect if the insurance company cancels or does not renew because of:
(C) failure to pay a premium when due;
(b) The notice required under this section shall be filed with the division.
(c) Failure of the insurance company to give notice as required by this section extends the policy until the date on which the required notice is provided to the employer and the division.

Tex.Lab.Code Ann. § 406.008.

In its decision, the appeals panel determined that TMI failed to carry its burden to establish compliance with paragraphs (a) and (b). According to the panel’s decision there was neither evidence of TMI’s timely notice to the Commission; nor was there evidence that Sara Care received timely or properly delivered, notice of non-renewal/cancellation under either the thirty, or ten-day notice provisions. Therefore, based on paragraph (c), and the Commission’s prior decisions regarding carriers’ failure to comply with Section 406.008(a), the panel held, “the policy was extended pursuant to Section 406.008(c) and the employer did have workers’ compensation coverage with the carrier on August 20, 2002.” By simply applying Section 406.008 without discussing whether or not the provision was applicable, the appeals panel’s decision indicates the issue was not raised in the administrative proceedings. We are left to determine, as Sara Care argues, whether TMI was prohibited from raising the applicability issue in the trial court by Section 410.302(b) of the Labor Code.

Labor Code Section 410.302(b) limits judicial review of an appeals panel decision, “to issues decided by the appeals panel and on which judicial review is sought.” Tex.Lab.Code Ann. § 410.302(b). According to the statute’s plain language, the scope of judicial review is limited to the issues decided by the appeals panel. See Alexander v. Lockheed Martin Corp., 188 S.W.3d 348, 353 (Tex.App.-Fort Worth 2006, pet. denied). Issues not raised before the appeals panel and identified in the petition for judicial review are waived. See id. Because there is no indication from the record that TMI questioned the applicability of Section 406.008 to the appeals panel, we agree that Section 410.302(b) barred TMI from raising this argument on judicial review.

However, TMI continues to urge the consideration of its Section 406.008 applicability argument on the basis that the modified de novo standard of review permits judicial consideration of the issue based on its request for review of the appeals panel’s coverage decision. We are not persuaded by this argument. TMI fails to cite any authority for the proposition that the plain language of Section 410.302(b) can be overridden by the standard of review. In addition, if we were to accept TMI’s argument, we would be violating the cannon of statutory construction that demands we give effect to the legislature’s enactments. See City of Boerne, 111 S.W.3d at 25.

Furthermore, while a modified de novo review permits the admission of evidence in the trial court which was not presented in the administrative proceeding, see State Office of Risk Mgmt. v. Escalante, 162 5.W.3d 619, 626 (Tex.App.-El Paso 2005, pet. dism’d), TMI’s argument is not for the admission of new evidence. Instead the insurer contends the administrative decision can be reversed based on an argument that was never presented to that body. Based on our analysis of the plan language of the provision, we conclude Section 410.302(b) prohibits TMI from raising this argument at this stage in the proceedings. See Tex.Lab.Code Ann. § 410.302(b).

We now turn to whether there is a genuine issue of material fact regarding TMI’s compliance with Section 406.008(a) and (b). To support its argument that a fact issue remains as to its compliance. TMI relies on “Exhibit D-l(B)” as evidence that it complied with Section 406.008(a)(l)(requiring a notice of nonre-newal or cancellation be provided to the insured by certified mail, or in person, no later that thirty days before the nonrenewal or cancellation takes effect). TMI does' not reference a page in the summary judgment record where this document appears, but states that the document “was delivered to Sara Care by certified mail more than 30 days before expiration of the policy and that it informed Sara Care that its policy would expire on August 4, 2002.”

Assuming for argument’s sake that a reference to a trial exhibit is sufficient to demonstrate that a genuine issue of material fact exists for summary judgment purposes, we disagree that the document referenced raises such a fact issue. Based on the description of the document as provided in TMI’s brief, the description seems to refer to the insurer’s June 6, 2002, letter to Sara Care which was included in TMI’s summary judgment response as Exhibit 3. The letter was sent via certified mail, and stated:

Dear Policyholder:
It has been our privilege to serve as your workers’ compensation carrier. Our records indicate your policy will expire on 8/04/2002. Please note: this is only a notice of your upcoming expiration, not a cancellation.
Texas Mutual Insurance Company greatly values your business and looks forward to continuing to serve as your workers’ compensation carrier. As Texas’ model provider of workers’ compensation insurance in the state, we strive to set the benchmark for service, communication, and ease of doing business. We have notified your agent of the upcoming expiration date and will be working with him/her to obtain the necessary information to provide you with your renewal quotation. In the meantime, if you have any questions, please contact your agent, or call us at....
Thank you again for allowing us to be your workers’ compensation carrier. We look forward to continuing this relationship with you and your agent during the next policy term. [Emphasis in original].

TMI contends this letter, in the least, raises a genuine issue of material fact that it satisfied the statutory notice requirements because the letter was: (1) sent by certified mail to the insured; and (2) notified the policyholder of the upcoming expiration, giving the insured “ample time to secure replacement coverage.” See Tex. Lab.Code Ann. § 406.008(a)(1). TMI also notes that the summary judgment record demonstrates its compliance with the Commission’s notice receipt requirement, as the appeals panel decision notes that the Commission received a “Notice of Nonre-newal or Cancellation” on June 6, 2002. See Tex.Lab.Code Ann. § 406.008(b).

We express no opinion on whether this letter constituted sufficient notice of non-renewal or cancellation to the policyholder under Section 406.008(a)(1). Instead, we turn to the issue of TMI’s compliance with Section 406.008(a)(2)(C). Subparagraph (a)(2)(C), which was also addressed as a basis for its coverage decision by the appeals panel, requires an insurer to provide notice, in the same form and to the same recipients as required under (a)(1), no later than “the 10th day before the date on which the cancellation or nonrenewal takes effect if the insurance company cancels or does not renew ...” due to a policyholder’s failure to pay a premium when due. See Tex.Lab.Code Ann. § 406.008(a). Whatever the due date for Sara Care’s 2002-2003 policy payment, there is no evidence in the record before us of any notice to either Sara Care, or the Commission of TMI’s intent not to renew Sara Care’s policy for non-payment as required by the statute. TMI does not point to any other evidence in support of its contention that a fact issue remains regarding its compliance with Section 406.008. Therefore, having previously concluded that TMI did not preserve its argument that Section 406.008 was not applicable to extend Sara Care’s coverage, we overrule Issue One, and affirm the trial court’s summary judgment on TMI’s petition for judicial review.

Issues Two and Three address the trial court’s denial of TMI’s motion for summary judgment, and simultaneous grant of Sara Care’s motion as to liability on its breach of contract, Insurance Code, DTPA, and promissory estoppel claims. In the face of cross-motions for summary judgment, we apply the same standards of de novo review as when reviewing a trial court’s ruling on a singular motion. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005). When the trial court grants one motion and denied the other, we must consider all the grounds presented by both sides, and in the case of an improper judgment, render the judgment the trial court should have rendered. Id.

In Issue Three, TMI’s argument that the trial court erred by not granting its motion for summary judgment is based entirely on its argument that Sara Care was not covered by the policy at the time of Ms. Martinez’s injury. Given our conclusion affirming the trial court’s summary judgment on TMI’s petition for judicial review, TMI’s argument that it was entitled to summary judgment due to lack of coverage must also fail. As the insurer has not presented any additional or alternative grounds for summary judgment in its favor, Issue Three is overruled. See Ellis, 68 S.W.3d at 898. The trial court’s ruling denying TMI’s motion for summary judgment will be affirmed.

In Issue Two, TMI argues the trial court erred by granting Sara Care’s motion for partial summary judgment as to liability on the affirmative claims contained in Sara Care’s Original Petition because there was no coverage, and therefore no basis for liability; or because the issue of coverage was not sufficiently clear to serve as a basis for summary judgment. TMI’s first argument fails, again, based on our decision affirming the appeals panel decision regarding its coverage liability. TMI’s remaining arguments in Issue Two, are limited to Sara Care’s statutory causes of action. TMI does not present any alternative arguments to demonstrate the partial summary judgment on these claims was entered in error. Accordingly, the trial court’s liability summary judgment on Sara Care’s common law causes of action (breach of contract, breach of the duty of good faith and fair dealing, and the relief granted under the doctrine of promissory estoppel) will be affirmed. See Ellis, 68 S.W.3d at 898.

The only point remaining in Issue Two, is TMI’s challenge to the trial court’s summary judgment on Sara Care’s statutory claims under the Texas Insurance Code, and the Texas Deceptive Trade Practices Act. TMI argues its liability for these claims could not be determined as a matter of law because Sara Care cannot establish the insurer’s coverage liability was “reasonably clear” as a matter of law.

An insurer’s liability under former Article 21.21 of the Texas Insurance Code, and the Texas Deceptive Trade Practices Act, incorporate the common-law bad faith standard developed as part of the elements of a claim for breach of the duty of good faith and fair dealing. See Progressive County Mut. Ins. Co. v. Boyd, 177 S.W.3d 919, 922-23 (Tex.2005)(per curiam). Unless the facts of a case are such that there is no conflict in the evidence on the issue, whether coverage of a claim is “reasonably clear” is a question of fact. See Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56 (Tex.1997). It was Sara Care’s burden to establish coverage was reasonably clear as part of its case for liability under the Insurance Code and the DTPA. See Boyd, 177 S.W.3d at 922-23.

Sara Care argues that the appeals panel decision determining coverage negates the any fact issue on this element. However, Sara Care has failed to cite, and we have been unable to locate legal authority establishing an exception to the Texas Supreme Court’s statement in Giles. Sara Care relies on the appeals panel decision as conclusive proof of coverage. We are unpersuaded by this argument. Although the appeals panel decision could be introduced as evidence to demonstrate TMI’s coverage liability was reasonably clear for the purposes of the Insurance Code and DTPA claims, it is merely persuasive evidence, not binding on the fact finder. See Weeks, 259 S.W.3d at 339. As such, the administrative decision alone cannot serve as a basis for summary judgment on the issue of liability.

In its alternative, no-evidence, ground for summary judgment, Sara Care argues that TMI presented “no evidence” that the appeals panel erroneously determined the coverage issue in its favor. The burden of proof on Sara Care’s claims for affirmative relief under the Insurance Code and DTPA fell on Sara Care. See Tex.Ins.Code Ann. § 541.003 (Vernon 2009); Tex.Bus. & Com.Code Ann. §§ 17.43, 17.50 (Vernon 2002 and Vernon Supp.2009). A no-evidence summary judgment motion can only be addressed to a claim or defense for which the non-movant would have the burden of proof at trial. See Tex.R.Civ.P. 166a(i). Because Sara Care moved for no-evidence summary judgment on a claim for which it would have the burden of proof, the no-evidence ground was not a proper basis for summary judgment.

In summary, the trial court’s partial summary judgment on Sara Care’s common-law claims will be affirmed, and Issue Two is overruled as to those claims. However, because a fact issue remains regarding whether TMI’s coverage liability was reasonably clear for purposes of Sara Care’s Insurance Code and DTPA claims, Issue Two is sustained as to the statutory claims.

Our dispositions of Issue Two also impacts TMI’s contention, in Issue Four that the evidence was legally and factually insufficient to support the trial court’s fact finding that TMI acted “knowingly” in its alleged deceptive practices. A claimant who successfully establishes liability under Chapter 541 of the Insurance Code, and simultaneously the DTPA, may be entitled to “additional damages” if the claimant can also establish the insurer committed the statutory violations “knowingly.” See Tex. Ins.Code Ann. § 541.152(b)(Vernon 2009); Tex.Bus. & Com.Code Ann. § 17.50 (Vernon Supp.2009); see also Texas Mut. Ins. Co. v. Morris, 287 S.W.3d 401, 433-34 (Tex.App.-Houston [14th Dist.] 2009, pet. filed)(comparing the provisions for “additional damages” in light of a finding that an insurer acted knowingly under the Insurance Code and the DTPA).

In this case, the “knowingly” question was tried to the bench. The court ultimately determined the insurer did act “knowingly,” entitling Sara Care to treble damages in accordance with the Insurance Code and the DTPA. This finding was expressly predicated, however, on the court’s summary judgment decision holding TMI liable for violations of the Insurance Code and the DTPA as a matter of law. Given our conclusion that the court’s decision to grant Sara Care’s liability-only summary judgment on its statutory claims was in error, there is no longer a legal basis for the court’s determination that the insurer acted “knowingly” in its alleged statutory violations. See Tex.Ins.Code Ann. § 541.152(b); Tex.Bus. & Com.Code Ann. § 17.50. Accordingly, further discussion of TMI’s legal and factual sufficiency challenges is not necessary, and Issue Four is sustained.

In Issue Five, TMI challenges the trial court’s attorneys’ fees award. In the final judgment, the trial court awarded Sara Care $26,711.51, plus post judgment interest; and awarded Ms. Martinez $22,400, plus post judgment interest. The court also made contingent awards in the case of appeals to this Court, and the Texas Supreme Court.

An attorney’s fees award will not be disturbed absent an abuse of discretion. Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex.1990). In the attorney’s fees context, whether a particular award constitutes an abuse of discretion is determined by a two-step analysis: (1) did the trial court have sufficient information upon which to exercise its discretion; and, if so (2) did the court err in the exercise of its discretion? Alford v. Johnston, 224 S.W.3d 291, 298 (Tex.App.-El Paso 2005, pet. denied). A court exercises its discretion erroneously when it acts without reference to guiding rules and principles. See F-Star Socorro, L.P. v. City of El Paso, 281 S.W.3d 103, 106 (Tex.App.-El Paso 2008, no pet.).

In its Original Petition, Sara Care requested attorney’s fees pursuant to the Texas Insurance Code and the DTPA. In the preliminary motion for summary judgment, Sara Care petitioned for attorney’s fees under Section 408.221(c) of the Texas Labor Code, and 38.001 of the Civil Practice and Remedies Code. In its liability-only motion for summary judgment, Sara Care requested attorney’s fees, again, under Section 408.221(c), and 38.001. Ms. Martinez relied on Section 408.221(c) for her attorney’s fee request in her Original Answer to TMI’s Petition for Judicial Review.

TMI argues that neither Sara Care nor Ms. Martinez are entitled to recovery attorney’s fees under any of the asserted bases, rendering the trial court’s award an abuse of discretion. Primarily, TMI contends the cited Labor Code provision cannot support the awards because Section 408.221(c), limits recovery of attorney’s fees to the “prevailing party” in Insurance Code and DTPA violations cases.

Labor Code Section 408.221(c) provides in relevant part, that an insurer who seeks judicial review of a final decision of the appeals panel is liable for the reasonable and necessary attorney’s fees the claimant incurs defending the appeal, “[i]f the claimant prevails on an issue on which judicial review is sought by the insurance carrier....” Tex.Lab.Code Ann. § 408.221(c). Sara Care has successfully defended the appeals panel decision through the judicial review process and therefore meets the “prevailing party” requirement of Section 408.221. TMI’s argument that the claimants’ status as a “prevailing party” is dependant on Sara Care’s success on its statutory claims is not supported by the plain language of the statute, and fails to demonstrate the trial court abused its discretion by awarding attorneys’ fees based on this statute.

TMI’s alternative arguments: (1) that Section 408.221 cannot support Sara Care’s award because the employer is a “subclaimant,” not a “claimant;” and (2) that the trial court’s findings of fact regarding Sara Care and Ms. Martinez’s right to recover attorney’s fees are nothing more than conclusory statements, unsupported by citation to proper authority. Because TMI has failed to provide this Court with adequate briefing in support of these arguments they are waived. See Tex.R.App.P. 38.1(i). Therefore, TMI has failed to demonstrate the trial court abused its discretion in its attorney’s fee award, and we overrule Issue Five.

In conclusion, we affirm the trial court’s judgment as to Appellant’s petition for judicial review, Appellant’s liability for Ap-pellees’ common law causes of action, and the court’s attorney’s fee award. The trial court’s judgment in Appellees’ favor on Appellees’ statutory claims is reversed and the case is remanded for proceedings consistent with this opinion.

LARSEN, J. (Sitting by Assignment).

      . Ms. Martinez filed an Original Answer to TMI's Petition for Judicial Review on September 9, 2005. She also filed an individual motion for summary judgment on July 21, 2006, in which she sought attorney’s fees and argued: ”[t]here is no evidence that Martha Martinez DID NOT sustain an injury in the course and scope of her employment with Sara Care on or about August 20, 2002.” [Emphasis in original]. The court denied Ms. Martinez’s motion on January 24, 2007.

      . As the parties explained during oral argument, the negligence cause of action was related to Sara Care’s allegations against the Treiber Group, the insurance agent who handled the policy. Although the Treiber Group was originally named as a defendant in the case, Sara Care ultimately entered into a set-dement agreement with the agent. Although the negligence cause of action was never formally stricken from the case, there is no further reference to the cause of action in the record, and it appears Sara Care abandoned the claim following the settlement. As the parties have not addressed the claim further, either in the trial court or in their briefing to this Court, there is no need to address the claim further in our consideration of this case.

      .With the exception of Issue Five, TMI makes no distinction between Sara Care and Ms. Martinez. As such, for the purposes of our discussion of the other issues, references to "Sara Care” include both Appellees when necessary.

      . The exhibit stickers marking TMI’s summary judgment exhibits are not legible as they appear in the appellate record. Because the parties have not clarified the proper identification for the exhibits, and for ease of reference, we will refer to the exhibits in numerical order as they appear in the record.

      . The only other issue addressed in the panel's decision was TMI's alleged Downs waiver due to the carrier’s failure to begin payment of benefits, or notify the Commission and the employee in writing of its refusal to pay no later than seven days after receipt of notice of the injury. See Continental Cas. Co. v. Downs, 81 S.W.3d 803, 805 (Tex.2002), citing former Tex.Lab.Code Ann. § 409.021(a)(current version at Tex.Lab.Code Ann. § 409.021 (Vernon 2006)).

      . TMI does not dispute Sara Care’s assertion that the question of Section 406.008’s applicability was not an issue raised or addressed in the administrative proceedings.

      . While we agree that the modified de novo standard does not bind the judicial review to the result rendered administrative decision, it also does not permit the parties to a new trial, independent of the case presented to the Commission. See Escalante, 162 S.W.3d at 626. By its terms, to conduct a “modified de novo review” contemplates a review, “from the beginning,” that which has been previously considered. Which in this instance are the issues and arguments presented to the appeals panel. See Tex.R.App.P. 33.1(a)(providing that a complaint is not preserved for appeal absent a demonstration that the complaint was made to the trial court); Tex.R.Civ.P. 166a(c)(generally limiting review of a summary judgment to those issues presented to the trial court); Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996)(noting that a de novo review in the summary judgment context is limited to the grounds presented to the trial court); Kutner v. Russell, 658 S.W.2d 585, 590 (Tex.Crim.App.1983)(en banc)(noting several translations of the Latin phrase "de novo ”).

      . Article 21.21 is now codified as Chapter 541 of the Texas Insurance Code titled "Unfair Methods Of Competition And Unfair Or Deceptive Acts Or Practices.” See Tex.Ins.Code Ann. §§ 541.001, 541.003 (Vernon 2009).


author: Justice MOSELEY.

text:
    In re The FROST NATIONAL BANK, N.A., Relator.
    No. 05-10-01097-CV.
    Court of Appeals of Texas, Dallas.
    Sept. 22, 2010.
    James W. Walker, Daniel Lee Gus, Walker Sewell, LLP, Dallas, TX, Michael D. Warner, Emily S. Chou, Cole, Schotz, Meisel, Foreman & Leonard, P.A., Fort Worth, TX, for Relator.
    Robert A. Simon, Henry W. Simon, Jr., Barlow Garsek & Simon, LLP, Fort Worth, TX, for Real Party in Interest.
    Before Justices MOSELEY, LANG, and MYERS.
   OPINION

Opinion by

Justice MOSELEY.

Relator filed this mandamus proceeding after the trial court orally granted real party in interest’s motion to reconsider prior judges’ rulings on the parties’ respective motions as to the right to a jury trial. We conclude the trial court abused its discretion in finding that a jury waiver contained in a contract between the parties was not applicable. We therefore conditionally grant the petition for writ of mandamus.

To obtain mandamus relief, relator must show both that the trial court has abused its discretion and that it has no adequate appellate remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135-36 (Tex.2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992) (orig. proceeding). This Court has previously found, based on Prudential, that there is no adequate remedy at law when a trial court fails to enforce a valid jury waiver. See In re C-Span Entertainment, Inc., 162 S.W.3d 422, 425 (Tex.App.-Dallas 2005, orig. proceeding). Accordingly, the only issue we must address is whether the trial court abused its discretion in finding the jury waiver inapplicable to this case. We conclude that it did.

In 2004, relator lent money to two limited partnerships for commercial real estate projects. Real party in interest was the principal of both limited partnerships and the guarantor on both loans. One of the documents for each loan is entitled, “Arbitration and Notice of Final Agreement.” That document provides, under the heading “Arbitration,” that either party may choose to arbitrate any claim or controversy. In a different section of the agreement, under the heading “Waiver of Right to Trial by Jury,” the document provides, in all caps:

The parties to this agreement hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the parties hereto against the other to enforce this agreement, or which in any other way arise out of, are connected to or are related to this agreement or the subject matter of this agreement. Any such action shall be tried by the judge without a jury.

Real party in interest signed this document with respect to both loans, both on behalf of the limited partnership and as “other obligor.”

After the limited partnerships allegedly defaulted, relator sued real party in interest under the guaranties. Real party in interest requested a jury trial, and relator objected based on the above waiver language. Real party argued, and the trial court agreed, that the waiver only applied to the arbitration agreement and not to the underlying loans. We disagree.

On its face, the waiver applies to any action “to enforce this agreement, or which ... [is] related to this agreement or the subject matter of this agreement.” The subject matter of the “Arbitration and Notice of Final Agreement” is the underlying loan transaction. This action, to enforce a guaranty of the loan, is clearly related to that subject matter, and it was an abuse of discretion for the trial court to rule otherwise.

Accordingly, we conditionally grant relator’s petition for writ of mandamus. A writ will issue only in the event the trial court fails to vacate the portion of its June 25, 2010 ruling setting this case for a jury trial and to enter an order denying defendant’s amended motion to reconsider prior judges’ rulings on the parties’ respective motions as to the right to a jury trial.


text:
    Arthur Lee STEWART, Appellant, v. EL PASO COUNTY SHERIFF’S DEPARTMENT and Health Care Provider, et al., Appellees.
    No. 08-09-00270-CV.
    Court of Appeals of Texas, El Paso.
    Sept. 22, 2010.
    Rehearing Overruled Nov. 4, 2010.

      Arthur Lee Stewart, Huntsville, TX, pro se.
    Naomi R. Gonzalez, Assistant County Attorney, Henry J. Paoli, Scott, Hulse, Marshall, Feuille, Finger & Thurmond, P.C., El Paso, TX, for Appellees.
    Before CHEW, C.J., McCLURE, and RIVERA, JJ.
   OPINION

DAVID WELLINGTON CHEW, Chief Justice.

Mr. Stewart appeals the trial court’s decision to grant Defendants El Paso County Sheriffs Department and Health Care Provider, et al.’s motions to dismiss his case under Chapter 14 of the Texas Civil Practices and Remedies Code. Mr. Stewart has, however, inadequately briefed his arguments according to the requirements established in Rule 38.1 of the Texas Rules of Appellate Procedure, we will affirm the trial court’s judgment.

Mr. Stewart, an inmate incarcerated at O.B. Ellis Unit, Huntsville, Texas, filed a pro se negligence suit against the El Paso County Sheriffs Department, and a second entity which Mr. Stewart identifies as “Health Care Provider.” Mr. Stewart alleged that he was inadequately treated for injuries to his back sustained from a fall while in the care of the El Paso County Sheriffs Department and the “Health Care Provider.” Both defendants filed motions to dismiss the case. The court granted both motions to dismiss on August 27, 2009, finding that the claim asserted by Mr. Stewart was “frivolous or malicious within the meaning of section 14.003 of the Civil Practice & Remedies Code.”

Mr. Stewart has appealed the trial court’s dismissal orders. The “Points Presented for Review” section of his brief allege two points of error. In what we take to be Issue One, Mr. Stewart states the trial court erred in dismissing with prejudice his action. We find Issue Two to be Mr. Stewart’s contention that the trial court “should [not] have dismissed the appellant’s claim without reviewing the to-tility [sic] the claims merits, and all the evidance [sic] which was presented....” In the argument section of his brief, Mr. Stewart focuses exclusively on the arguments he made in the trial court regarding the merits of his claim. The brief fails to address at all the propriety of the trial court’s ruling dismissing his original suit.

Under Section 38.1(h) of the Texas Rules of Appellate Procedure, an appellant’s brief:

[M]ust contain a succinct, clear, and accurate statement of the arguments made in the body of the brief. This summary must not merely repeat the issues or points presented for review.

Tex.R.App.P. 38.1(h).

Mr. Stewart’s brief contains a detailed explanation of his injuries, what has happened after sustaining these injuries, and the remedies he expects due to these injuries. However, Mr. Stewart’s brief makes no argument regarding what legal analysis supports his specific contentions. His brief does not include a clear and concise analysis supporting his argument that the trial court erred in dismissing his claim with prejudice. Furthermore, Mr. Stewart fails to provide appropriate citations to authorities or to reference any passage or documentation in the record demonstrating that the trial court did not review “the totility [sic] the claims merits, and all the evidance [sic] which was presented.... ”

The Rules of Appellate Procedure require that an appellant’s brief contain “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Tex.R.App.P. 38.1(i). Although appellate courts liberally construe briefs by pro se litigants, we must hold them to the same standards as licensed attorneys and require them to comply with all applicable laws and rules of procedure. See Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989). When a party fails to cite to the record or to legal authority in their brief, nothing is presented for review. Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex.2004); Valadez v. Avitia, 238 S.W.3d 843, 844-45 (Tex.App.-El Paso 2007, no pet.). Because Mr. Stewart’s brief fails to comply with several sections of Rule 38.1 of the Texas Rules of Appellate Procedure, we overrule Mr. Stewart’s Issues One and Two as inadequately briefed.

We must therefore affirm the trial court’s judgment.