                                 NO. 07-08-0451-CV

                           IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                   AT AMARILLO

                                      PANEL C

                               OCTOBER 20, 2009
                        ______________________________


                                  BRYAN S. HALL,

                                                                  Appellant

                                          v.

            XCEL ENERGY, INC., SOUTHWESTERN PUBLIC SERVICE
             COMPANY d/b/a XCEL ENERGY and DWAYNE MARCHBANKS,

                                                                  Appellees

                      _________________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

               NO. 94392-A; HON. RICHARD DAMBOLD, PRESIDING

                       _______________________________

                             On Motion for Rehearing
                        ______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

      Pending before the court is the motion for rehearing of Bryan S. Hall. The latter

contends that we erred in concluding that he failed to address, on appeal, each ground

upon which the trial court could have based its summary judgment. The ground that we

noted as being unaddressed involved whether the Workers’ Compensation Act provided
him his exclusive remedy against Xcel Energy, Inc. Hall now posits that he covered the

matter via one sentence appearing in a footnote on page two of his brief. The footnote in

question states:

        Although the state of the summary judgment record is not altogether clear
        on this point, for purposes of this appeal, Hall concedes that he did indeed
        receive workers compensation benefits and that these benefits were likely
        paid on behalf of his likely employer, SPS. Accordingly, Hall is not
        contesting the applicability of the ‘exclusivity bar’ as to SPS and Marchbanks
        and agrees with Appellees’ contention that the bar would and could not
        otherwise be applied to Xcel Energy, Inc. – as it has no employees.


(Emphasis added). We find this footnote and the basis underlying his motion for rehearing

insufficient reason to change our prior decision.

        First, and at the very least, Hall implicitly concedes the accuracy of one aspect of

our opinion. To the extent he “agree[d] with Appellee’s contention that the bar would and

could not otherwise be applied to Xcel Energy, Inc.,” he recognized, by the time he filed his

appellate brief, that the argument was a ground asserted in the motion for summary

judgment. Having so recognized it, he had the duty to explain why it could not have formed

the basis for the trial court’s decision. Lyco Acquisition 1984 Ltd. Partnership v. First Nat'l

Bank, 860 S.W.2d 117, 119 (Tex. App.–Amarillo 1993, writ denied).

        Second, and at best, the footnote can be read as a somewhat equivocal comment

that the Workers’ Compensation Act did not apply to Xcel Energy.1 Yet, that purported

concession came during appeal. By then, Hall already had expended great effort in trying



        1
         W e consider the com m ent som ewhat equivocal because it was preceded by the statem ent that the
workers’ com pensation benefits he received were “likely” paid on behalf of his “likely” em ployer, SPS. Saying
that he was “likely” paid by his “likely” em ployer, SPS, is hardly a non-equivocal adm ission that Xcel did not
em ploy him .

                                                       2
to convince the trial court that he was indeed an employee of Xcel. So too had he provided

the trial court with a litany of “evidence” to bolster that proposition. Much of that evidence

was reiterated in his appellate brief, and included such things as the company’s name

being on his pay stubs and the representations contained in the letter offering him

employment. And, as acknowledged in our original opinion, that summary judgment

evidence and argument he proffered may well have induced the trial court to accept Xcel’s

contention that his sole means of redress was through Xcel’s workers’ compensation policy

since he actually was an Xcel employee. This potentiality, in turn, obligated him to prove

to us why the trial court would have been wrong had it so concluded.

       Simply put, acknowledging, on appeal, that an opponent may be right does not

necessarily make the trial court’s decision wrong. Indeed, there have been instances

where we affirmed a trial court’s application of the law even though both parties agreed that

it was wrong. E.g. Finney v. State, No. 07-99-0427-CR, 2000 Tex. App. LEXIS 3909 (Tex.

App.–Amarillo June 14, 2000, no pet.) (not designated for publication). So, by attempting

to prove though admirable effort a pivotal aspect of his opponent’s argument (i.e. that he

was an employee of Xcel which in turn subjected him to Xcel’s workers’ compensation

policy), Hall assumed the appellate burden of showing as a matter of law why the trial court

would have been wrong in accepting his own contention. And that, he did not do.

       Accordingly, we deny his motion for rehearing.



                                                  Brian Quinn
                                                  Chief Justice




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