Affirmed; Opinion Filed April 20, 2018.




                                               In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-16-01032-CV

                     EARNEST WILLIAMS, Appellant
                                V.
 FLEXFRAC TRANSPORT, LLC; FLEX CAPITAL TRANSPORT, LLC; FLEXFRAC
 OILFIELD, LLC; FLEXFRAC PROPANT SAND SUPPLIERS, LLC; ANDY ADAMS
                     AND MICAH TORRES, Appellees

                       On Appeal from the 192nd Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-14-08615

                              MEMORANDUM OPINION
                           Before Justices Bridges, Myers, and Schenck
                                   Opinion by Justice Schenck
       On the Court’s own motion, we withdraw our February 5, 2018 opinion and judgment of

 that date, and substitute this opinion in its place. Earnest Williams appeals a judgment in favor

 of FlexFrac Transport LLC (FlexFrac) and Flex Capital Transport LLC (Flex Capital)

 (collectively the “Flex Entities”) on his wrongful termination claim. In four issues, Williams

 challenges the jury’s finding against him on causation, and asserts the trial court erred (1) in

 excluding portions of the Department of Labor’s (DOL) investigative report, (2) in granting

 FlexFrac a new trial after default, and (3) in denying his request to set aside his nonsuit of certain

 claims. We affirm the trial court’s judgment. Because all issues are settled in law, we issue this

 memorandum opinion. TEX. R. APP. P. 47.4.
                                          BACKGROUND

       Williams was employed as a truck driver for the Flex Entities, delivering frac sand and

supplies to oil and gas well sites. His employment began on June 27, 2012, and ended on or about

August 12, 2012. During his employment, Williams received at least three pay checks. Williams

admits that the first two pay checks were issued in the proper amount. Williams contends that the

third pay check was short by $1,600.

       On or about August 10, 2012, Williams complained to the Flex Entities about his third pay

check. The Flex Entities, through Human Resources Manager Jennifer Adkins and Operations

Manager Corey Oseman informed Williams that his pay was proper and calculated in the same

manner as the previous payments. Williams contends that his employment was terminated on or

about August 12, 2012, in response to his complaint about his pay. The Flex Entities contend they

did not fire Williams, but rather, Williams quit. Alternatively, the Flex Entities contend that if

they had in fact fired Williams, by virtue of the statements allegedly made by employee Vincent

Willis, they did so because he was a poor employee with a poor record for performance, not

because he complained about his pay.

       Several months after his employment ended, Williams filed a complaint with the

Department of Labor alleging that he had been retaliated against for complaining about his wages.

Williams had previously filed complaints with the DOL claiming at least two of his former

employers had underpaid his wages. The DOL conducted an investigation and issued a report with

its findings. The DOL found there had been a violation of the Fair Labor Standard Act’s (FLSA)

anti-retaliation provision and calculated back wages of $63,554 in its case.

       Williams filed his lawsuit against FlexFrac, Andy Adams (President of FlexFrac), and

Micah Torres (a managing member of FlexFrac) on August 5, 2014. On November 13, 2014, the

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trial court granted Williams’ motion for default judgment against FlexFrac. At that time, Adams

and Torres had not been served. Williams non-suited his claims against them, making the default

judgment against FlexFrac a final judgment. On December 10, 2014, FlexFrac filed a motion for

new trial seeking to set aside the default judgment. On January 22, 2015, the trial court granted

FlexFrac’s motion. On December 3, 2015, almost a year later, Williams served his original petition

on Adams, without reinstating him as a party. Adams filed an answer within the time specified in

the citation. On February 17, 2016, Williams filed a first amended petition, adding as defendants,

Flex Capital, FlexFrac Oilfield LLC, and FlexFrac Proppant Sand Suppliers LLC. On February

22, 2016, Adams filed a motion for summary judgment asserting Williams had no live pleading

naming him as a defendant when he was served, and Williams’ claims against him are barred by

limitations. Williams then filed a motion to set aside the nonsuit and reinstate Adams as a

defendant in the case. On March 22, 2016, the trial court denied Williams’ motion, mooting

Adams’ motion for summary judgment.

       The case proceeded to trial before a jury. After the parties rested and closed, Williams

notified the trial court that he was no longer pursuing claims against FlexFrac Oilfield LLC and

FlexFrac Proppant Sand Suppliers LLC. Thus, the only claims submitted to the jury concerned

the Flex Entities. The jury found Williams was employed by both FlexFrac and Flex Capital, he

engaged in a protected activity under the FLSA, and he was terminated by his employers. In

response to a question as to whether Williams had shown by a preponderance of the evidence that

the Flex Entities would not have terminated him but for his engaging in an FLSA protected activity,

the jury answered “No.” The trial court entered judgment on the verdict and ordered that Williams

take nothing by his suit against the Flex Entities. The trial court denied Williams’ motion for a

new trial, and this appeal followed.




                                               –3–
                                              DISCUSSION

    I.      DOL Investigative Report

         In his first issue, Williams claims the trial court erred in excluding evidence of the DOL’s

final determination of his claim of unlawful termination in retaliation for participating in a

protected activity, and that he was substantially prejudiced by such exclusion.

         Williams sought to introduce, and appellees sought to exclude, the entire investigative

report of the DOL. The trial court admitted the report with the exception of the DOL’s conclusions.

To preserve error concerning the exclusion of evidence, the complaining party must actually offer

the evidence and secure an adverse ruling from the court. See Bobbora v. Unitrin Ins. Servs., 255

S.W.3d 331, 334 (Tex. App.—Dallas 2008, no pet.). Thus, when evidence is excluded by the trial

court, the proponent of the evidence must preserve the evidence in the record in order to complain

of the exclusion on appeal. TEX. R. EVID. 103(a),(b); Bobbora, 255 S.W.3d at 335. An offer of

proof preserves error for appeal if: (1) it is made before the court, the court reporter, and opposing

counsel, outside the presence of the jury; (2) it is preserved in the reporter’s record; and (3) it is

made before the charge is read to the jury. Bobbora, 255 S.W.3d at 335. When no offer of proof

is made before the trial court, the party must introduce the excluded testimony into the record by

a formal bill of exception. See Sw. Country Enters., Inc. v. Lucky Lady Oil Co., 991 S.W.2d 490,

494–95 (Tex. App.—Fort Worth 1999, pet. denied). A formal bill of exception must be presented

to the trial court for its approval, and, if the parties agree to the contents of the bill, the trial court

must sign the bill and file it with the trial court clerk. TEX. R. APP. P. 33.2(c); Bryan v. Watumull,

230 S.W.3d 503, 516 (Tex. App.—Dallas 2007, pet. denied). Failure to demonstrate the substance

of the excluded evidence results in waiver. TEX. R. APP. P. 33.1(a)(1)(B); Sw. Country Enters.,

Inc., 991 S.W.2d at 494.

                                                   –4–
           In this case, Williams did not make an offer of proof or bill of exception regarding the

excluded evidence. Therefore, Williams did not assure the DOL report was included in the trial

record itself, although it was attached to an earlier response to a motion for summary judgment

and was discussed outside the presence of the jury during the trial.1 In all events, we need not

decide whether Williams preserved his complaint concerning the DOL report and potentially

create new law on the issue of error preservation, because Williams has failed to demonstrate that

any error in excluding the DOL’s conclusion would have been harmful. That is, the exclusion was

calculated to cause and probably did cause the rendition of an improper judgment. TEX. R. APP.

P. 44.1(a); Mentis v. Barnard, 870 S.W.2d 14, 15 (Tex. 1994). Williams asserts that the DOL

concluded the Flex Entities terminated his employment in retaliation of his complaint to the DOL

and that exclusion of the conclusion was improper and harmful.                                            A “successful challenge

to evidentiary rulings usually requires the complaining party to show that the judgment turns on

the particular evidence excluded or admitted.” Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617

(Tex. 2000).

           The jury’s verdict and the trial court’s judgment turned on the question of whether

Williams proved by a preponderance of the evidence that the Flex Entities would not have

terminated him but for his engaging in an FLSA-protected activity. The focus of the DOL report was

whether Williams had engaged in a protected activity and whether he was terminated. During the

investigation, the Flex Entities maintained that Williams’ employment had not been terminated,

but rather he voluntarily quit when his demands for additional payment were not met. Like the

DOL, the jury found against the Flex Entities on that issue. But the jury had to also decide whether

the Flex Entities would not have terminated Williams “but for” his engaging in the protected



     1
       While the summary judgment evidence is part of the record on appeal, it is not a proper bill of exception or an offer of proof. Malone v.
Foster, 956 S.W.2d 573, 577–78 (Tex. App.—Dallas 1997), aff’d, 977 S.W.2d 562 (Tex. 1998).

                                                                     –5–
activity. The DOL did not consider or reach that issue. Consequently, the excluded evidence did

not turn on the ultimate issue that resulted in a judgment against Williams. We overrule William’s

first issue.

    II.        “But For” Causation

           In his second issue, Williams claims the evidence is factually insufficient to support the

jury’s finding that he did not prove that but for his engaging in a protected activity he would not

have been terminated.

           In addressing a factual-sufficiency-of-the-evidence challenge upon a jury verdict, we must

consider and weigh all of the evidence, not just that evidence which supports the verdict. Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986); City of Princeton v. Abbott, 792 S.W.2d 161, 163 (Tex.

App.—Dallas 1990, writ denied). The verdict should be set aside only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. Cain, 709 S.W.2d at

176; Dyson v. Olin Corp., 692 S.W.2d 456, 457 (Tex. 1985). However, this Court is not a fact

finder, and we generally will not pass upon the credibility of the witnesses or substitute our

judgment for that of the trier of fact, even if a different answer could be reached upon review of

the evidence. Clancy v. Zale Corp., 705 S.W.2d 820, 826 (Tex. App.—Dallas 1986, writ ref’d

n.r.e.).

           Williams argues that at trial he established he engaged in a protected activity and was

terminated two days later without reason. He further urges that the Flex Entities failed to present

any evidence or explanation as to why he was terminated. The record reveals otherwise. Williams

relied on a purported telephone conversation between himself and Willis to establish his

employment had been terminated. The transcript of that phone conversation was admitted into

evidence as part of the DOL’s investigation report. During that phone conversation, Willis told

Williams that he was being let go because the Flex Entities had problems with him and he was not

                                                  –6–
a good fit. Thus, contrary to Williams’ argument, he was given a reason. Moreover, when

Williams confronted Willis saying you all are mad because I filed a claim with the DOL, Willis

responded “We don’t even care about that because we have everything documented on you.” The

record includes email documentation of internal communications concerning Flex’s concerns with

Williams’ job performance, beginning more than a month before Williams complained about his

pay. The jury also heard testimony that Williams was a poor employee, had a bad attitude, was

constantly late, was hard to reach, would not return phone calls, would not answer his phone in the

field, incessantly complained, and generally was not a good employee. Tony Koch, the individual

in charge of dispatch at FlexFrac during Williams’ employment, testified, in contradiction to

Williams, that he spoke with Williams two to three times in late July and early August of 2012

about complaints concerning his performance and availability, and that according to the

companies’ records Williams should have been available to take loads when he was non-

responsive.

       Williams argues that the record is replete with evidence that contradicts the Flex Entities’

version of the events, including his driver logs that show during the time he was purportedly non-

responsive, he was in a remote area out of range for his cell phone, on break, or asleep in his truck,

and he did in fact accept and deliver loads on the days referenced in the emails. The jury, as the

fact finder, was in the best position to judge of the credibility of the witnesses and the weight to

be given their testimony, including the validity of the logs Williams created. Leibovitz v. Sequoia

Real Estate Holdings, L.P., 465 S.W.3d 331, 350 (Tex. App.—Dallas 2015, no pet.). In this case,

the jury found the testimony of the Flex Entities’ witnesses and the internal emails documenting

issues with Williams, which began a full month before Williams complained about his pay, to be

more credible than the testimony of Williams and his account of why he did not respond to

dispatch.

                                                 –7–
              Considering and weighing all of the evidence in the record pertinent to the finding against

Williams on the causation issue, we determine that the finding is not contrary to the overwhelming

weight of all the evidence as to be clearly wrong and unjust. Accordingly, we conclude that the

evidence is factually sufficient to support the jury’s finding Williams did not show by a

preponderance of the evidence that the Flex Entities would not have terminated him but for his

engaging in an FLSA-protected activity. Accordingly, we overrule William’s second issue.

       III.        New Trial after Default

              In his third issue, Williams claims the trial court erred in granting FlexFrac’s motion for

new trial following the entry of a default judgment because FlexFrac failed to establish all the

factors set out in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (1939).

              Generally, an order granting a motion for new trial within the trial court’s plenary power

“is not subject to review either by direct appeal from that order or from a final judgment rendered

after further proceedings in the trial court.” Cummins v. Paisan Constr. Co., 682 S.W.2d 235, 236

(Tex. 1984); see also In re Columbia Med. Ctr. of Las Colinas Subsidiary, L.P., 290 S.W.3d 204,

209 (Tex. 2009) (orig. proceeding). Two exceptions to the general rule have been recognized: (1)

when the trial court’s order is wholly void; and (2) when the trial court erroneously concluded that

the jury’s answers to special issues were irreconcilably in conflict. Wilkins v. Methodist Health

Care Sys., 160 S.W.3d 559, 563 (Tex. 2005). Neither exception applies in this case. Accordingly,

we overrule Williams’ third issue.

       IV.         Suit against Adams

              Finally, Williams claims the trial court erred by denying his request to set aside his non-

suit          of    Adams      and      to   reinstate    Adams    as   a    party    to    this   case.

A motion to reinstate the cause upon which the plaintiff has taken a nonsuit is directed to the sound

discretion of the trial judge, and his action will only be disturbed by an appellate court upon the

                                                         –8–
showing of a clear abuse of discretion. Chester v. Tex. Emp’rs Ins. Ass’n, 265 S.W.2d 648, 651

(Tex. Civ. App.—Texarkana 1954, writ ref’d n.r.e.); Butler v. Light Pub. Co., 112 S.W.2d 542, 543

(Tex. Civ. App.—San Antonio 1937, writ dism’d).

       Williams argues the trial court should have reinstated Adams as a party because doing so

would have eliminated the limitations issue and Adams filed an answer after being served.

Williams cites no authority to support his argument that his claim against Adams should be

reinstated because Adams filed an answer, and we find none. In support of his argument

concerning the limitations issue, Williams relies on the Texas Supreme Court 1891 decision in

Cotton v. Lyter, 81 Tex. 10 (1891). That case is distinguishable because there the trial court

refused to set aside the nonsuit and reinstate the plaintiff’s cause of action solely because the court

mistakenly thought doing so would not cure the limitations issue. Id. at 12. In this case, the trial

court did not specify the reason for its denial of Williams’ request. Williams concedes he non-

suited his claims against Adams and Torres on November 12, 2014, in order to make the default

judgment a final judgment.

       Notwithstanding the trial court’s granting of FlexFrac’s motion for new trial on January 5,

2015, Williams did not file his motion to reinstate Adams as a party to the lawsuit until March 14,

2016. Under these circumstance, we conclude the trial court did not abuse its discretion in

overruling Williams’ motion to reinstate. Moreover, Williams did not assert a claim against

Adams that was independent of his claims against the Flex Entities, upon which he did not prevail.

Consequently, had the trial court reinstated Williams’ claim against Adams, it would not have

impacted the judgment in this case. We overrule Williams’ fourth issue.




                                                 –9–
                                       CONCLUSION

       We affirm the trial court’s judgment.



                                               /David J. Schenck/
                                               DAVID J. SCHENCK
                                               JUSTICE



161032F.P05




                                           –10–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 EARNEST WILLIAMS, Appellant                         On Appeal from the 192nd Judicial District
                                                     Court, Dallas County, Texas
 No. 05-16-01032-CV          V.                      Trial Court Cause No. DC-14-08615.
                                                     Opinion delivered by Justice Schenck.
 FLEXFRAC TRANSPORT, LLC; FLEX                       Justices Bridges and Myers participating.
 CAPITAL TRANSPORT, LLC;
 FLEXFRAC OILFIELD, LLC;
 FLEXFRAC PROPANT SAND
 SUPPLIERS, LLC; ANDY ADAMS AND
 MICAH TORRES, Appellees

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellees FLEXFRAC TRANSPORT, LLC; FLEX CAPITAL
TRANSPORT, LLC; FLEXFRAC OILFIELD, LLC; FLEXFRAC PROPANT SAND
SUPPLIERS, LLC; ANDY ADAMS AND MICAH TORRES recover their costs of this appeal
from appellant EARNEST WILLIAMS.


Judgment entered this 20th day of April, 2018.




                                              –11–
