Affirmed in part, Reversed and Remanded in part, and Memorandum
Opinion filed August 23, 2016.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-15-00674-CV

                            LAURIE POE, Appellant
                                        V.

                 OMNI FLOW COMPUTERS, INC., Appellee

                    On Appeal from the 11th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2014-33603

                  MEMORANDUM OPINION
      Appellant Laurie Poe filed a wage claim with the Texas Workforce
Commission (TWC) in an unsuccessful effort to recover unpaid commissions from
appellee Omni Flow Computers, Inc. She later filed suit in district court to recover
the commissions, and the court granted summary judgment in favor of Omni Flow
on the ground that Poe’s suit was untimely. We conclude that the suit was time
barred as to the commissions addressed by the TWC, but not as to the commissions
the TWC lacked jurisdiction to address. We therefore affirm in part and reverse in
part.

                                    BACKGROUND

        Poe contends that under the terms of her employment agreement with Omni
Flow, it owes her additional commissions for work performed in 2012. In February
2013, Poe filed a wage claim with the TWC for $241,367.41 in unpaid
commissions. The TWC issued a Preliminary Wage Determination Order
dismissing Poe’s wage claim and finding that (1) she was not entitled to additional
commissions of $201,509.41 for the last three quarters of 2012 because Omni Flow
had paid the correct amount for those quarters, and (2) it lacked jurisdiction over
her claim for unpaid commissions for the first quarter of 2012 because they would
have been due more than 180 days before Poe filed her claim. Poe appealed this
decision and the Wage Claim Appeal Tribunal affirmed, issuing a Texas Payday
Law Decision explaining its reasoning. The decision was mailed on October 15,
2013, and became final fourteen days later.

        On June 11, 2014, Poe filed a petition in state district court, pleading claims
against Omni Flow for breach of contract and promissory estoppel based on the
same unpaid commissions. Omni Flow filed a traditional motion for summary
judgment on the sole ground that Poe’s claims were untimely under section 61.062
of the Texas Labor Code. The trial court granted summary judgment, and Poe
timely filed this appeal.

                                      ANALYSIS

        In a single issue, Poe contends that the trial court erred in granting summary
judgment in favor of Omni Flow. We review a trial court’s grant of summary
judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.


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2010). We consider all of the evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if a reasonable
factfinder could, and disregarding contrary evidence unless a reasonable factfinder
could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

      A movant for traditional summary judgment has the burden of showing that
there is no genuine issue of material fact and that it is entitled to judgment as a
matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc.
v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When the movant is a defendant, a
trial court should grant summary judgment only if the defendant (1) negates at least
one element of each of the plaintiff’s causes of action, or (2) conclusively
establishes each element of an affirmative defense. Clark v. ConocoPhillips Co.,
465 S.W.3d 720, 724 (Tex. App.—Houston [14th Dist.] 2015, no pet.). A
defendant moving for summary judgment on the affirmative defense of limitations
must conclusively prove that defense as a matter of law. Id. The nonmovant has no
burden to respond to a summary judgment motion unless the movant conclusively
establishes each element of its cause of action or defense as a matter of law.
Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999).

      A party who has exhausted remedies under the Texas Labor Code may file
suit to appeal the TWC’s final administrative order not later than the thirtieth day
after the date the order is mailed. Tex. Lab. Code Ann. § 61.062 (West 2015).
When a claimant chooses to file a wage claim under the statute, she is required to
abide by the statute’s provisions. See Holmans v. Transource Polymers, Inc., 914
S.W.2d 189, 193 (Tex. App.—Fort Worth 1995, writ denied). Thus, “[t]o pursue
common-law remedies after filing a claim under the Payday Law, a claimant must
withdraw his claim with the TWC before its decision becomes final.” Tricon Tool
& Supply, Inc. v. Thumann, 226 S.W.3d 494, 511 (Tex. App.—Houston [1st Dist.]

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2006, pet. denied); see Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 88–
89 (Tex. 2008).

      Omni Flow’s summary-judgment evidence shows that the TWC’s Texas
Payday Law Decision was mailed on October 15, 2013, and it became final
fourteen days later on October 29, 2013. See Tex. Lab. Code Ann. § 61.061(c)
(West 2015). Poe filed suit on June 11, 2014. Because Poe’s suit for unpaid
commissions was not filed within thirty days after the date the TWC’s order
became final, it was untimely. See id. § 61.062. As to the commissions addressed
in the TWC’s order, therefore, the trial court correctly granted summary judgment
and dismissed Poe’s claims.

      The TWC determined, however, that Poe’s claim for commissions from the
first quarter of 2012 were outside its jurisdiction because they would have been
due more than 180 days before she filed her claim. See id. § 61.051(c); Campbell v.
Mabry, 457 S.W.3d 173, 176 (Tex. App.—Houston [14th Dist.] 2015, no pet.).
Therefore, the statute requiring suit to be filed within thirty days of the decision
being mailed did not apply to claims based on the first-quarter commissions. See
Campbell, 457 S.W.3d at 176. Poe’s breach of contract and promissory estoppel
claims regarding unpaid commissions for the first quarter of 2012 fall under the
general four-year statute of limitations, and Omni Flow does not contend that this
statute bars the claims. See Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (West
2014).

      Omni Flow argues on appeal that although the TWC did not have
jurisdiction over Poe’s first-quarter claims, her suit for those claims is barred by
res judicata in light of statements in the Appeal Tribunal’s decision. This argument
cannot provide a basis for affirmance, however, because Omni Flow did not move
for summary judgment based on res judicata. See Olmstead v. Napoli, 383 S.W.3d

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650, 652 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“When reviewing a
summary judgment motion, we cannot read between the lines or infer from the
pleadings or evidence any grounds for summary judgment other than those
expressly set forth before the trial court.”). Moreover, for res judicata to apply, the
previous determination of the claim must have been rendered by a court of
competent jurisdiction. Travelers Ins. Co., 315 S.W.3d at 862. In its decision, the
Appeal Tribunal expressly stated it did not have jurisdiction over Poe’s first-
quarter claims. Any indication in the decision that Poe had been properly paid for
her first-quarter claims therefore has no preclusive effect. See Campbell, 457
S.W.3d at 176. We sustain Poe’s issue in part and hold that the trial court erred in
granting summary judgment as to Poe’s claims for first-quarter commissions.

                                    CONCLUSION
      Omni Flow only established its right to summary judgment on Poe’s claims
over which the TWC had jurisdiction. Accordingly, we affirm the summary
judgment in part as to those claims, and we reverse the judgment in part and
remand for further proceedings on Poe’s claims for first-quarter 2012
commissions.




                                        /s/       J. Brett Busby
                                                  Justice


Panel consists of Justices Christopher, McCally, and Busby.




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