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                                                OPINION

                                         No. 04-08-00107-CV

                           STATE OFFICE OF RISK MANAGEMENT,
                                        Appellant

                                                   v.

                                         Edna A. MARTINEZ,
                                               Appellee

                      From the 37th Judicial District Court, Bexar County, Texas
                                   Trial Court No. 2001-CI-17102
                        Honorable David A. Berchelmann, Jr., Judge Presiding

                    OPINION ON APPELLEE’S MOTION FOR REHEARING

Opinion by:       Phylis J. Speedlin, Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Phylis J. Speedlin, Justice

Delivered and Filed: June 24, 2009

REVERSED AND REMANDED

           The motion for rehearing filed by appellee Edna A. Martinez is denied. This court’s opinion

and judgment dated April 1, 2009, are withdrawn, and this opinion and judgment are substituted.

           In this workers’ compensation case, the State Office of Risk Management appeals the trial

court’s pre-trial directed verdict in favor of Edna A. Martinez, an employee of the Texas Department
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of Protective and Regulatory Services. We reverse the judgment of the trial court and remand for

further proceedings.

                                FACTUAL AND PROCEDURAL BACKGROUND

         Martinez, a child protective services caseworker employed by the Texas Department of

Protective and Regulatory Services, fell while at home on Saturday, June 9, 2001, sustaining injuries

to her head, neck, and left shoulder. Martinez immediately sought emergency room treatment at a

local hospital. The following Monday, Martinez reported her injury to her supervisor and filed a

claim for workers’ compensation on the basis that her injury occurred “while she was working on

generic service plans in the kitchen area” at home. When Martinez later submitted her time to her

supervisor for approval, he told her that the hours for June 9, 2001 would not be approved and that

her workers’ compensation claim would be denied because she did not have prior approval to work

at home. Subsequently, the State Office of Risk Management denied compensability for Martinez

on the ground that she did not sustain the injury in the course and scope of employment. An

informal dispute resolution proceeding and a contested case hearing ensued.1 The contested case

hearing officer entered findings of fact including that Martinez “was furthering the business and

affairs of the Employer by making a [sic] reports and service plans that she needed to present in court

on June 11, 2001” but concluded the injury was not compensable because the accident did not

involve an instrumentality inherent to the employment. Martinez appealed.2 The appeals panel



         1
          … The Texas W orkers’ Compensation Act provides an administrative process for parties to resolve disputed
issues. The first step is a benefit review conference. T EX . L AB . C O D E A N N . §§ 410.021, 410.023, 410.024 (Vernon
2006). If issues remain between the parties after the benefit review conference, the parties proceed to a contested case
hearing. Id. § 410.151 (Vernon 2006).

         2
          … A party has fifteen days to appeal the decision of the contested case hearing officer to the division appeals
panel. Id. § 410.202(a) (Vernon 2006).

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agreed with Martinez and concluded that Martinez “fell and sustained injuries while working at

home on June 9, 2001,” there existed “evidence to support the hearing officer’s decision that

claimant had authority to work at home,” Martinez was in the “course and scope of her employment

furthering the business affairs of her employer at the time,” and there existed a causal connection

between the employment and her injuries.

         The State Office of Risk Management then initiated this suit for judicial review.3 Prior to

trial, Martinez filed both a traditional and no-evidence motion for summary judgment; both were

denied.4 On the day the parties appeared for trial on the merits, Martinez filed a motion for “pre-

trial” directed verdict and argued it was timely because: (1) the State Office of Risk Management’s

only basis for denying that Martinez was acting in the course and scope of her employment at the

time she was injured, i.e., that she did not have permission to work at home, was irrelevant as a

matter of law;5 and (2) the evidence conclusively established that the State Office of Risk

Management was untimely in contesting compensability, thereby waiving that defense. After a

hearing on the issues, the trial court granted the directed verdict on all grounds prior to any evidence

being heard. The State Office of Risk Management now appeals, arguing that the trial court erred




         3
           … Once the appeals panel issues its ruling, the parties have forty days to file a request for review in district
court. Id. § 410.252(a) (Vernon 2006).

         4
          … The record reflects that M artinez’s motions for summary judgment were denied by the Honorable John
Gabriel, presiding judge of the 131st Judicial District Court, Bexar County, Texas.

         5
          … Martinez also filed a motion in limine seeking to preclude all testimony about whether Martinez did or did
not have permission to work at home at the time she was injured because such testimony was not relevant to course and
scope. The trial court appeared inclined to grant the motion in limine, but did not render an oral or written ruling. See
S&A Restaurant Corp. v. Leal, 892 S.W .2d 855, 858 (Tex. 1995) (per curiam) (words used by trial court must convey
the present intent to render judgment); Comet Aluminum Co. v. Dibrell, 450 S.W .2d 56, 58 (Tex.1970) (judgment’s
“rendition is judicial act by which the court settles and declares the decision of the law upon the matters at issue”).

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 in granting the pre-trial motion for directed verdict. In one issue on cross-appeal, Martinez asserts

 that the trial court erred in denying her no-evidence and traditional motions for summary judgment.

                                              ANALYSIS

       The State Office of Risk Management first argues it was procedurally improper for the trial

court to grant Martinez’s motion for pre-trial directed verdict before it had an opportunity to present

evidence. We agree that “[o]rdinarily, a directed verdict should not be granted against a party before

the party has had a full opportunity to present its case and has rested.” Tana Oil & Gas Corp. v.

McCall, 104 S.W.3d 80, 82 (Tex. 2003). In fact, it is generally reversible error for the trial court to

direct a verdict without allowing the plaintiff to present all of its evidence. See Wedgeworth v.

Kirskey, 985 S.W.2d 115, 116 (Tex. App.—San Antonio 1998, pet. denied). However, in at least one

instance, the Texas Supreme Court has held that a procedural error in granting a directed verdict

before the close of evidence did not require reversal where no harm was shown. See Tana Oil & Gas

Corp., 104 S.W.3d at 82 (holding that directed verdict granted during first witness’s testimony was

“irregular” but harmless because proof of all claims would still not entitle plaintiffs to the only

damages sought). Accordingly, we must examine Martinez’s responsive arguments supporting the

trial court’s pretrial directed verdict. We review a directed verdict in the light most favorable to the

nonmovant disregarding all contrary evidence and inferences in order to determine whether there

exists probative evidence in the record to raise a fact issue on the matter. Szczepanik v. First Southern

Trust Co., 883 S.W.2d 648, 649 (Tex. 1994). If there exists evidence of probative value on any

theory of recovery, an instructed verdict is improper and the case must be reversed and remanded for

jury determination. Id.




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         Martinez contends the trial court’s directed verdict was neither premature nor improper. She

argues the trial court initially and correctly determined that the only evidence the State Office of Risk

Management could offer on the issue of whether Martinez was acting in the course and scope of her

employment when she sustained her injuries (i.e., testimony by her supervisor that Martinez did not

have prior approval to work at home) was irrelevant and inadmissible as a matter of law. We disagree

with Martinez’s basic premise that the State Office of Risk Management had no other evidence. The

record confirms that counsel for the State Office of Risk Management sought, but because of the

directed verdict, was denied the right to call Martinez as an adverse witness. Thus, the trial court’s

actions effectively precluded the State Office of Risk Management from cross-examining Martinez’s

version of the facts.        Generally, a party’s testimony raises an issue of credibility for jury

determination, thereby precluding a directed verdict. See Collora v. Navarro, 574 S.W.2d 65, 69

(Tex. 1978). In fact, as our Supreme Court has noted, there exist cases “where the credibility of an

interested witness or party is so suspect that it must go to the jury, even though the testimony is

uncontradicted.” Id. Here, the premature granting of a directed verdict improperly denied the State

Office of Risk Management the right to cross-examine Martinez and thereby challenge her credibility

on disputed fact issues relevant to whether she sustained a compensable injury.6

         Alternatively, Martinez argues that even if the directed verdict was premature, it should

nonetheless be affirmed because it essentially restated the grounds for, and expressly incorporated,

Martinez’s prior motions for traditional and no-evidence summary judgment. In support of this

          6
           … The W orkers’ Compensation Act defines a “compensable injury” as one “that arises out of and in the course
 and scope of employment for which compensation is payable under [the Act].” T EX . L AB . C O D E A N N . § 401.011(10)
 (Vernon 2006). Accordingly, determining whether an employee has sustained a compensable injury involves a two-prong
 test: (1) whether the injury occurred in the course and scope of employment; and (2) whether the injury arose from
 employment. See Tex. Workers’ Compensation Ins. Fund. v. Simon, 980 S.W .2d 730, 734 (Tex. App.— San Antonio
 1998, no pet.).

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argument, Martinez notes that Rule 166a of the Texas Rules of Civil Procedure does not limit the

number of times a motion for summary judgment may be filed or considered by the trial court. TEX .

R. CIV . P. 166a. Therefore, Martinez contends that the trial court could have granted the directed

verdict based on its reconsideration of the grounds set forth in her summary judgment motions. See

Winn v. Martin Homebuilders, Inc., 153 S.W.3d 553, 555 (Tex. App.—Amarillo 2004, pet. denied)

(denial of motion for summary judgment is an interlocutory ruling subject to change without further

motion or prior notice to the parties until final judgment is rendered). However, as Martinez’s

argument implicitly acknowledges, nothing in the record before us indicates that Martinez intended,

or the trial court construed, her motion for directed verdict as a re-urging of her summary judgment

motions. In fact, the orders denying summary judgment remain undisturbed. Accordingly, we reject

Martinez’s arguments in support of the directed verdict and sustain the State Office of Risk

Management’s first issue.

       In its second issue on appeal, the State Office of Risk Management argues that the trial court

erred in granting the motion for pre-trial directed verdict on the basis of a so-called “Downs waiver.”

In her motion for pre-trial directed verdict, Martinez argued that “a carrier who fails to either begin

benefits or file a notice of refusal on or before the seventh day after receiving first written notice of

injury is barred from later contesting compensability on any ground, unless based on newly

discovered evidence.” TEX . LAB. CODE ANN . §§ 409.021, .022 (Vernon 1996); Continental Cas. Co.

v. Downs, 81 S.W.3d 803 (Tex. 2002). The Downs waiver, however, is no longer a viable argument

for Martinez in light of the Texas Supreme Court’s recent decision in Southwestern Bell Telephone

Co., L.P. v. Mitchell, 276 S.W.3d 443 (Tex. 2008). Downs held that section 409.021(a) of the Texas

Labor Code required insurance carriers to either initiate compensation benefits or contest them within

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seven days of receiving notice of injury, and that failure to do so waived the right to contest

compensability. See id. at 448. The Legislature promptly amended the Labor Code to make clear that

this interpretation of the Code was incorrect. Id. Finding Downs to be “an anomaly in the law,” the

court stated that cases falling within the “gap,” i.e., between the holding in Downs and the effective

date of the amendment to the Labor Code, should not be held to the erroneous standard pronounced

in Downs. Id. This case falls within that gap. Accordingly, the Downs waiver does not apply, and

the State Office of Risk Management’s second issue is sustained.

       In one issue on cross-appeal, Martinez asserts that we may affirm the trial court’s judgment

on the ground that her no-evidence and traditional motions for summary judgment were erroneously

denied. Martinez contends that the trial court erred in denying her no-evidence and traditional

motions for summary judgment because the State Office of Risk Management had no probative

evidence that Martinez did not sustain her injury in the course and scope of employment, and because

the evidence conclusively established as a matter of law that the State Office of Risk Management

did not timely contest the compensability of her injury. Generally, an order denying a motion for

summary judgment, whether traditional or no-evidence, is interlocutory and not appealable. See

Novak v. Stevens, 596 S.W.2d 848, 849 (Tex. 1980); see also TEX . R. CIV . P. 166a(i), 1997 Comment.

Because this case does not come within an exception to the general rule that a denial of summary

judgment is interlocutory and not appealable, we conclude that Martinez’s cross-issue is not

reviewable on appeal.




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                                            CONCLUSION

       Based on the foregoing analysis, we reverse the judgment of the trial court and remand the

cause to the trial court for further proceedings.



                                                          Phylis J. Speedlin, Justice




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