Reversed and Remanded and Majority and Dissenting Opinions filed January
22, 2015.




                                    In The

                   Fourteenth Court of Appeals

                             NO. 14-13-01105-CV

                      ISABEL CAMPBELL, Appellant

                                      V.

  AMANDA DUFFY MABRY, INDIVIDUALLY AND AS INDEPENDENT
    EXECUTRIX OF THE ESTATE OF AUSTIN R. DUFFY, Appellee

                   On Appeal from the Probate Court No. 1
                            Harris County, Texas
                     Trial Court Cause No. 410,842-401

                               OPINION


      In this case concerning claims of unpaid wages, the trial court granted
summary judgment in the employer’s favor on the ground that the employee’s
wage claim before the Texas Workforce Commission (“the TWC”) is entitled to
res judicata effect, precluding a subsequent wage claim in a civil court. In its
summary-judgment motion, the employer addressed a prior version of the law,
under which the TWC had subject-matter jurisdiction over all of the employee’s
wage claims. Because the TWC now lacks subject-matter jurisdiction over claims
for wages due more than 180 days before the complaint is filed, the employer
failed to establish the extent to which the agency’s decision is a final judgment on
the merits. We reverse and remand without addressing the remaining elements of
the employer’s res judicata defense.

                  I. FACTUAL AND PROCEDURAL BACKGROUND

      On July 24, 2012, Isabel Campbell filed a wage claim with the Texas
Workforce Commission seeking unpaid wages of $698,880.00. She alleged that
she worked for Don and Amanda Duffy Mabry, providing private home health care
for one of her employer’s parents from August 28, 2006 through February 28,
2012. She represented that she agreed to work twenty-four hours a day, seven days
a week; that her rate of pay was $14.00 per hour; and that the Mabrys breached a
promise to pay her overtime at the rate of $21.00 per hour. The TWC found that
(a) it lacked jurisdiction to rule on Campbell’s claim for unpaid overtime wages
that were due more than 180 days before she filed her complaint, and
(b) Campbell’s employment was exempt from the overtime provisions of the Fair
Labor Standards Act. The TWC accordingly dismissed the claim. Campbell
contested the ruling, but then voluntarily dismissed the appeal.

      A few weeks later, Campbell filed suit against Amanda Mabry, individually
and as executrix of the estate of Mabry’s father Austin R. Duffy, for breach of a
written employment contract and fraud in inducing Campbell to enter into the
contract. Campbell later amended the petition to assert a claim in quantum meruit
for the value of the services she rendered.        Overtime is not mentioned in
Campbell’s pleadings.

      Mabry moved for traditional summary judgment on the ground of res
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judicata, arguing that the TWC already had ruled on the same claims against the
same parties. The trial court granted the motion. In a single issue, Campbell
challenges that ruling.

                             II. STANDARD OF REVIEW

      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).            If the movant initially
establishes a right to summary judgment on the issues expressly presented in the
motion, then the burden shifts to the nonmovant to present to the trial court any
issues or evidence that would preclude summary judgment. See City of Houston v.
Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). On appeal, the
movant for traditional summary judgment still bears 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. See Rhône-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).
We review the judgment by considering all 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).

                                    III. ANALYSIS

      To obtain summary judgment on the ground that the plaintiff’s claims are
barred by res judicata, a defendant must establish that (a) a court of competent
jurisdiction already has rendered a final judgment on the merits in an action, (b) the
prior action was between the same parties or those in privity with them, and (c) the
claims now being raised are the same as those that were litigated or that could have
been litigated in the earlier action. See Igal v. Brightstar Info. Tech. Grp., Inc., 250
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S.W.3d 78, 86 (Tex. 2008), superseded by statute on other grounds, Act of April
28, 2009, 81st Leg., R.S., ch. 21, §§ 1–2, 2009 TEX. GEN. LAWS 40, 40 (codified at
TEX. LAB. CODE ANN. § 61.052(b-1) (West Supp. 2014) and as an amendment to
TEX. LAB. CODE ANN. § 61.051(c)), as recognized in Prairie View A&M Univ. v.
Chatha, 381 S.W.3d 500, 512 n.17 (Tex. 2012).          In her summary-judgment
motion, Mabry asserted that the entirety of the TWC’s ruling in Campbell’s earlier
wage claim was a final judgment on the merits; that the parties in this action are
the same as those in the TWC action; and that the claims in both proceedings are
the same. We conclude, however, that Mabry failed to establish these assertions as
a matter of law, and thus, the burden never shifted to Campbell to raise a genuine
issue of material fact.

      In arguing that the TWC’s ruling was a final judgment on the merits, Mabry
relied entirely on a case decided under a prior version of the law. See Igal, 250
S.W.3d at 84. Under the law as it existed when Igal was decided, the TWC had
concurrent jurisdiction with the civil courts over wage claims; thus, under the law
as it then existed, Campbell could have pursued the entirety of her wage claim
before either tribunal. See id. at 82. Wage claims brought before the TWC may be
adjudicated more quickly and inexpensively than similar claims brought in court.
See id. But the trade-off for bringing a wage claim before the TWC was that a
claimant had to file the claim within 180 days after the wages were due. See Act
of May 12, 1993, 73rd Leg., R.S., ch. 269 § 1, sec. 61.051(c), 1993 TEX. GEN.
LAWS 987, 1014 (“A wage claim must be filed not later than the 180th day after
the date the wages claimed became due for payment.”). Although the TWC argued
that the 180-day filing requirement was jurisdictional, the Texas Supreme Court
rejected that argument. Igal, 250 S.W.3d at 89. The Igal court determined that
although the 180-day deadline was mandatory, it was not jurisdictional, but instead


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was in the nature of an affirmative limitations defense. See id. at 90. Thus, under
Igal, a final judgment by the TWC was a final judgment on the merits by a court of
competent jurisdiction entitled to res judicata effect. See id.

      The problem with Mabry’s reliance on Igal is that our state legislature
immediately responded by amending the statute. See Act of Apr. 28, 2009, 81st
Leg., R.S., ch. 21, §§ 1–2, 2009 TEX. GEN. LAWS 40, 40. For wage claims filed in
the TWC on or after September 1, 2009, “[t]he 180-day deadline is a matter of
jurisdiction.” TEX. LAB. CODE ANN. § 61.051(c); see also id. § 61.052(b-1) (“If a
wage claim is filed later than the date described by Section 61.051(c), the examiner
shall dismiss the wage claim for lack of jurisdiction.”).

      We presume that the legislature was aware of the Texas Supreme Court’s
ruling in Igal and that the legislature intended to change the law. See In re Allen,
366 S.W.3d 696, 706 (Tex. 2012) (orig. proceeding) (explaining that courts
presume the legislature “is aware of relevant case law when it enacts or modifies
statutes”); Ex parte Trahan, 591 S.W.2d 837, 842 (Tex. Crim. App. 1979) (“In
enacting an amendment the Legislature is presumed to have changed the law, and a
construction should be adopted that gives effect to the intended change, rather than
one that renders the amendment useless.” (citing Stolte v. Karren, 191 S.W. 600
(Tex. Civ. App.—San Antonio 1916, writ ref’d) (op. on reh’g))); Risner v. Harris
Cnty. Republican Party, 444 S.W.3d 327, 343 (Tex. App.—Houston [1st Dist.]
2014, [mand. denied]) (“[W]hen interpreting an amendment to a statute, we
presume that the legislature intends to change the law.”); see also Univ. of Tex. Sw.
Med. Ctr. at Dall. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004) (pointing out
that the legislature “is bound to know the consequences of making a requirement
jurisdictional”), superseded by statute on other grounds, Act of May 25, 2005,
79th Leg., R.S., ch. 1150, § 1, 2005 TEX. GEN. LAWS 3783, 3783 (current version

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at TEX. GOV’T CODE ANN. § 311.034 (West 2013)); S. COMM. ON ECON. DEV., BILL
ANALYSIS, Tex. S.B. 741, 81st Leg., R.S. (2009) (noting that the Texas Supreme
Court ruled that the TWC’s determination that a claimant’s wage claim was filed
after the 180-day deadline is a determination on the merits so that a claimant
thereafter could not bring the same wage claim in court, and stating that the bill
“amends current law relating to [TWC’s] jurisdiction over a wage claim filed after
the deadline”).

      Because the TWC no longer has subject-matter jurisdiction to address the
merits of claims for unpaid wages that were due more than 180 days before the
claim was filed, it could not render a final judgment on the merits on that portion
of Campbell’s wage claim. See Igal, 250 S.W.3d at 82 (“Res judicata does not
apply when the initial tribunal lacks subject matter jurisdiction over the claim.”);
Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000) (sub. op.) (“[A]
judgment will never be considered final if the court lacked subject-matter
jurisdiction.”); see also In re Dep’t of Family & Protective Servs., 273 S.W.3d 637,
641 (Tex. 2009) (orig. proceeding) (explaining that if statutory dismissal dates
were jurisdictional, then the trial court’s orders after that date would be void).
Thus, to the extent that Campbell asserts claims for wages due more than 180 days
before she filed her claim with the TWC, those claims have not yet been
adjudicated and res judicata does not apply.

      Depending on the dates on which Campbell’s allegedly unpaid wages were
due, the TWC ruling could be a final judgment on the merits as to all of her wage
claim, part of it, or none of it. As the summary-judgment movant, Mabry bore the
burden to prove what part of Campbell’s current claim, if any, is barred by res
judicata. Mabry argued that the TWC ruling was a final judgment on the merits of
the entirety of Campbell’s current claims, but because the TWC now has

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jurisdiction only over claims for wages that allegedly were due not more than 180
days before the complaint was filed, Mabry’s argument could succeed only if she
established that all of the wages claimed in the TWC were due, if at all, not more
than 180 days before Campbell filed her complaint. See Montgomery v. Blue
Cross & Blue Shield of Tex., Inc., 923 S.W.2d 147, 151–52 (Tex. App.—Austin
1996, writ denied) (reversing summary judgment where the plaintiff’s extra-
contractual claims could not have been brought in an earlier action before an
agency that had subject-matter jurisdiction only over contractual claims). Mabry
did not attempt to do so.

      We also have considered whether Mabry established her entitlement to a
portion of the relief sought, that is, whether she asserted and proved that res
judicata applies to some identifiable portion of Campbell’s current wage claim. Cf.
McLernon v. Dynegy, Inc., 347 S.W.3d 315, 324–25 (Tex. App.—Houston [14th
Dist.] 2011, no pet.) (affirming summary judgment as modified where the movant
conclusively established its right to a portion of the amount allegedly due under a
promissory note, but failed to prove its entitlement to the full amount sought). But
in her summary-judgment motion, Mabry did not address Campbell’s wage-
payment schedule at all. Because Mabry has not established the extent to which
the claimed wages allegedly were due in the 180-day period before the TWC
complaint was filed, we cannot know if they were part of the TWC’s ruling on the
merits. Cf. Hernandez v. Del Ray Chem. Int’l, Inc., 56 S.W.3d 112, 114, 117 (Tex.
App.—Houston [14th Dist.] 2001, no pet.) (explaining that a case tried to a final
judgment in 1990 did not bar a party’s later claims under a 1987 promissory note
where the final payment on the note was not due until 1992, and thus, was not part
of the earlier suit). We therefore are unable to determine that the TWC ruling
precludes Campbell from pursuing any of the wages she claims in this suit. See


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Wilburn v. State, 824 S.W.2d 755, 766 (Tex. App.—Austin 1992, no writ) (sub.
op.) (holding that movant for traditional summary judgment failed to meet its
burden to establish the amount of contributions and penalties it was owed for
wages paid after March 15, 1986 where its summary-judgment evidence reflected
contributions and penalties due through March 30, 1986, and the portion due based
on wages paid after March 15, 1986 could not be determined from the evidence);
Moreno v. Alejandro, 775 S.W.2d 735, 738 (Tex. App.—San Antonio 1989, writ
denied) (explaining that where the appellee’s own summary-judgment evidence
showed that some of the damages awarded to him from a lawsuit were community
property, the appellee bore the burden to establish what portion of the damages
represented his separate property).

      In sum, Mabry failed to establish the first element of her affirmative defense.
She therefore did not meet her initial burden to establish her entitlement to
summary judgment, and the burden never shifted to Campbell. We accordingly
sustain the sole issue presented for our review.

                                 IV. CONCLUSION

      Because Mabry failed to establish, as a matter of law, the extent to which the
TWC’s ruling on Campbell’s wage claim is a final judgment on the merits rather
than a dismissal for lack of jurisdiction, we reverse the judgment and remand the
case without addressing the remaining elements of Mabry’s affirmative defense.



                                       /s/       Tracy Christopher
                                                 Justice


Panel consists of Chief Justice Frost and Justices Christopher and Busby (Frost,
C.J., dissenting).

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