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


                 DISSENTING OPINION
      Appellant/plaintiff Isabel Campbell alleges appellee/defendant Amanda
Duffy Mabry, individually and as independent executrix of the estate of Austin R.
Duffy, is liable to Campbell for damages based on claims for breach of contract,
quantum meruit, and common law fraud. These claims arise from Campbell’s
employment as a caregiver for Mabry’s father.
      Mabry filed a traditional summary-judgment motion asserting that
Campbell’s claims are barred as a matter of law by res judicata because Campbell
earlier had asserted a wage claim with the Texas Workforce Commission. Before
filing this suit, Campbell filed a wage claim with the Commission on July 24, 2012
(the “Wage Claim Filing Date”), seeking to recover overtime pay alleged due and
not paid during her employment by Campbell from August 28, 2006 through
February 28, 2012. According to the employment contract in our record, Campbell
provided care at an hourly rate and was paid once every fourteen days. The
Commission determined that it did not have subject-matter jurisdiction over part of
Campbell’s claim because the wages allegedly were due to be paid more than 180
days before the Wage Claim Filing Date. As to the merits of the part of the claim
over which the Commission had jurisdiction, the Commission determined that
Mabry did not owe any overtime pay because Campbell fell within an exemption
from the overtime provisions of the Fair Labor Standards Act.

      The majority correctly concludes that the Commission did not have subject-
matter jurisdiction to address the merits of claims for unpaid wages that were due
for payment more than 180 days before the Wage Claim Filing Date and that res
judicata bars Campbell’s claims only to the extent that she seeks to recover wages
that became due for payment in the 180 days before the Wage Claim Filing Date.
See ante at pp. 6–7. Rather than reversing and remanding, this court should affirm
the trial court’s judgment to the extent that Campbell seeks to recover unpaid
wages that became due for payment in the 180 days before the Wage Claim Filing
Date, and to reverse and remand the remainder of Campbell’s claims. See PAS,
Inc. v. Engel, 350 S.W.3d 602, 616–17 (Tex. App.—Houston [14th Dist.] 2011, no
pet.) (affirming in part and reversing in part portion of summary judgment order on
fraud claim); Espeche v. Ritzell, 123 S.W.3d 657, 665–68 (Tex. App.—Houston


                                         2
[14th Dist.] 2003, pet. denied) (affirming summary judgment on claims barred by
res judicata and reversing and remanding claims not barred by res judicata).
Because the majority does not do so, I respectfully dissent.




                                       /s/       Kem Thompson Frost
                                                 Chief Justice



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




                                             3
