                                                                                             ACCEPTED
                                                                                        07-14-00435-cv
                                                                            SEVENTH COURT OF APPEALS
                                                                                     AMARILLO, TEXAS
                                                                                  2/20/2015 9:52:32 AM
                                                                                      Vivian Long, Clerk


                               No. 07-14-00435-CV

                                     IN THE
                                                                       FILED IN
                                                                7th COURT OF APPEALS
                       SEVENTH COURT OF APPEALS                   AMARILLO, TEXAS
                                                                2/19/2015 9:52:32 AM
                             Sitting in Amarillo, Texas              VIVIAN LONG
                           __________________________                   CLERK


ASHLEY DENHAM as parent and legal guardian of FREEDOM LYNN JEAN BURRIS, a
                                minor child,
                                    Appellant,
                                        v.
                  TEXAS MUTUAL INSURANCE COMPANY
                                    Appellee.
                             _____________________

                         Appeal in Cause No. 98,186-A
                      th
            from the 47 District Court in and for Potter County, Texas
  ________________________________________________________________________

    BRIEF OF APPELLANT, ASHLEY DENHAM as parent and legal guardian of
                 FREEDOM LYNN JEAN BURRIS, a minor child
  ________________________________________________________________________

                                             THE WARNER LAW FIRM

                                             101 S.E. 11th, Ste. 301
                                             Amarillo, Texas 79101
                                             Tele: 806.372.2595
                                             Fax: 866.397.9054
                                             e-mail: mike@thewarnerlawfirm.com
                                             e-mail: brent@thewarnerlawfirm.com

                                             Michael A. Warner
                                             Texas Bar No. 20872700
                                             Brent C. Huckabay
                                             Texas Bar No. 24085879



                                     APPELLANT REQUESTS ORAL ARGUMENT
                              No. 07-14-00435-CV

ASHLEY DENHAM as parent and legal guardian of FREEDOM LYNN JEAN BURRIS, a
                                minor child,

                                    Appellant,

                                        v.

                  TEXAS MUTUAL INSURANCE COMPANY

                                  Appellee.
      ________________________________________________________________

                     IDENTITY OF PARTIES & COUNSEL
      ________________________________________________________________

     APPELLANT:        Ashley Denham as legal guardian of Freedom Lynn Jean Burris, a
                       minor children
                       1117 Parr St.
                       Amarillo, Texas 79106

     ATTORNEYS FOR Michael A. Warner               TSB# 20872700
     APPELLANT:    The Warner Law Firm             Tele: 806.372.2595
                   101 S.E. 11th, Ste. 301         Fax: 866.397.9054
                   Amarillo, Texas 79101           e-mail:
                                                   mike@thewarnerlawfirm.com

                       Brent C. Huckabay           TSB# 24085879
                       The Warner Law Firm         Tele: 806.372.2595
                       101 S.E. 11th, Ste. 301     Fax: 866.397.9054
                       Amarillo, Texas 79101       e-mail:
                                                   brent@thewarnerlawfirm.com

     APPELLEE:         Texas Mutual Insurance Company
                       P.O. Box 12029
                       Austin, Texas 78711-2029

     ATTORNEY FOR      Arleen Matthews             TSB#: 24026868
     APPELLEE:         Crenshaw, Dupree, &         Tele: 806.762.5281
                       Milam, L.L.P.               Fax: 806.762.3510
                       P.O. Box 1499               e-mail:
                       Lubbock, Texas 79408        amatthews@cdmlaw.com
                                       i
                                                    TABLE OF CONTENTS

IDENTITY OF PARTIES & COUNSEL ......................................................                            i

INDEX OF AUTHORITIES .........................................................................                  iii

           Cases………………………………………………………………..                                                                      iii
           Statutes……………………………………………………………...                                                                   iv

STATEMENT OF THE CASE .....................................................................                     1

Issue 1: Whether the trial court erred in granting Defendant’s Motion for
         Summary Judgment ………………………………………….……                                                                   3

STATEMENT OF FACTS............................................................................                  3

SUMMARY OF THE ARGUMENT............................................................                             4

ARGUMENT.................................................................................................       4

           A.         Standard for Review………………………………………..                                                      4
           B.         A Material Issue of Fact Exits with Regard to Decedent’s
                      Intoxication…………………………………………………                                                           5
           C.         The Affidavit of Dr. Robert J. Philips was based on
                      Personal Knowledge………………………………………..                                                       6

PRAYER ......................................................................................................   7

CERTIFICATE OF SERVICE .....................................................................                    9

CERTIFICATE OF COMPLIANCE WITH TARP 9.4(i),……...………….                                                           9

APPENDIX…………………………………………………………………                                                                               10




                                                                      ii
                               INDEX OF AUTHORITIES

                                         CASES


Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 258
(Tex. App. - Corpus Christi 1997, n.w.h.)………………………………….                 6

Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 115
(Tex.App.-Beaumont 2005, pet. denied)…………………………………...                   6

Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex. 1994)…………...    7

Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997)………….       5

Burroughs Welcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)//…….     5

Collins v. County of El Paso, 954 S.W.2d 137, 145
(Tex. App. - El Paso 1997, n.w.h.)…………………………………………                      6

DR Partners v. Floyd, 228 S.W.3d 493, 497
(Tex. App.—Texarkana 2007, pet. denied)………………………………...                  5

Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952)……………………             6

Keenan v. Gibraltar Sav. Ass'n, 754 S.W.2d 392, 394
(Tex. App.--Houston [14th Dist.] 1988, no writ)…………………………..             7

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003)…………        5

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)……………        4

Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)…   5

Progressive Cnty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 806
(Tex. 2009) (per curium)……………………………………………………                            5

Rizkallah v. Conner, 952 S.W.2d 580, 587
(Tex.App.-Houston [1st Dist.] 1997, no writ.)……………………………...             6

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)……..   4



                                            iii
                               STATUTES

Texas Labor Code Ann. §401.013…………………………………………           1, 2, 4

Texas Labor Code Ann. §401.013(a)(2)(B).……………………………….    3

Texas Labor Code Ann. §401.013(c)……..………………………………...     3

Texas Labor Code Ann. §406.032(1)(A)…..………………………………      3

Texas Health & Safety Code §481.002……………………………………..      4

Texas Rule of Civil Procedure 166a(i),……………………………………..   4

Texas Rule of Civil Procedure 166a(c)…….………………………………..   5




                                  iv
                                      No. 07-14-00435-CV

ASHLEY DENHAM as parent and legal guardian of FREEDOM LYNN JEAN BURRIS, a
                                minor child,

                                           Appellant,

                                                v.

                         TEXAS MUTUAL INSURANCE COMPANY

                                            Appellee.

         ________________________________________________________________

  APPELLANT, ASHLEY DENHAM as parent and legal guardian of FREEDOM LYNN
                     JEAN BURRIS, a minor child’s BRIEF
      ________________________________________________________________

       Appellant, ASHLEY DENHAM as parent and legal guardian of FREEDOM LYNN

JEAN BURRIS, a minor child, submits her brief to this Honorable Court. Appellant will be

referred to as “Appellant” or ASHLEY DENHAM as parent and legal guardian of

FREEDOM LYNN JEAN BURRIS, a minor child. Appellee, TEXAS MUTUAL

INSURANCE COMPANY will be referred to as “Appellee”.

                                STATEMENT OF THE CASE

       Nature of the case. This case was brought pursuant to a request for judicial review of a

determination by the Division of Worker’s Compensation of Texas Insurance Commission

Appeals Panel which rendered a decision that the claimed injury occurred while decedent was in a

state of intoxication as defined by Texas Labor Code §401.013 and the carrier is relieved of

liability for compensation.

       Course of Proceedings ASHLEY DENHAM as parent and legal guardian of

                                                1
FREEDOM LYNN JEAN BURRIS, a minor child, filed a workers’ compensation claim on

behalf of her minor child after decedent, Donnie Lee Burris, was killed in a motor vehicle

accident on August 8, 2008, while in the course and scope of his employment. At the time of the

accident, Decedent and another employee were in an employee-owned vehicle traveling to a job

site in Clovis, New Mexico. Decedent was driving at the time of the accident. Plaintiff prevailed

in the initial Contested Case Hearing (CCH) wherein the Hearing Officer’s Decision and Order

determined that Decedent was in the course and scope of his employment at the time of the

accident. Defendant appealed that decision to the Appeals Panel and the case was remanded back

to the Hearing Officer for further consideration and an additional issue of intoxication was added.

       On July 28, 2009, a second CCH was held and the Hearing Officer determined that the

claimed injury did not occur while Decedent was in a state of intoxication as defined by Texas

Labor Code Ann. §401.013 and Defendant was not relieved of liability from compensation to the

minor child beneficiary, Freedom Lynn Jean Burris, for the death of her father while in the course

and scope of his employment with Panhandle Fire Protection, LLC on August 4, 2008 (CR 10-

13). Defendant again appealed the adverse ruling of the Hearing Officer to Appeals Panel No.

091309 which reversed the Decision and Order of the Hearing Officer on October 30, 2009 (CR

14-19). Plaintiff filed her Request for Judicial Review of the Appeals Panel decision on

December 8, 2009 (CR 4-9). Defendant filed a Motion for Summary Judgment on September 4,

2014 (CR 24-27). Plaintiff filed Plaintiff’s Memorandum in Response to Defendant’s Motion for

Summary Judgment on October 3, 2014 (CR 28-46). Defendant filed Defendant’s Objections to

Plaintiff’s Summary Judgment Evidence and Reply to Plaintiff’s Memorandum in Response to

                                                 2
Defendant’s Motion for Summary Judgment on October 23, 2014 and (CR 47-54).

       Trial court disposition. The trial court signed the Defendant’s Motion for Summary

Judgment on November 19, 2014 and the Order was filed on November 20, 2014 (CR 55). There

was no mention in the Court’s Order as to whether the Court was granting Traditional Motion for

Summary Judgment or a No-Evidence Motion for Summary Judgment.

                                  ISSUE PRESENTED FOR REVIEW

Issue 1: Whether the trial court erred in Defendant’s Motion for Summary Judgment.

                                       STATEMENT OF FACTS

       Appellee is the Carrier for Panhandle Fire Protection LLC. It is undisputed that Decedent,

Donnie Lee Burris, was an employee of Panhandle Fire Protection LLC and was killed in a motor

vehicle accident while in the course and scope of his employment. At issue in the underlying

administrative proceedings and on appeal to the trial court was whether or not Decedent was

intoxicated at the time of the accident. Texas Labor Code §406.032(1)(A) provides that the

Carrier (Appellee) is not liable for compensation if the injury occurred while the employee was in

a state of intoxication. Texas Labor Code §401.013(a)(2)(B) defines intoxication as not having

the normal use of mental or physical faculties resulting from the voluntary introduction into the

body of a controlled substance or controlled substance analogue as defined by Section 481.002 of

the Texas Health & Safety Code. Texas Labor Code Section 401.013(c), amended effective

September 1, 2005, provides that on the voluntary introduction into the body of any substance

listed under Subsection (a)(2)(B), based on a blood test or urinalysis, forms a rebuttable

presumption that a person is intoxicated and does not have the normal use of mental or physical

                                                 3
faculties. The burden of proof then shifts to the claimant beneficiary, the minor child, to prove

that Decedent was not intoxicated at the time of the injury (i.e. at the time of death).

                               SUMMARY OF THE ARGUMENT

       Appellant contends that the trial court erred in granting a traditional summary judgment or,

in the alternative, a no-evidence summary judgment because there is a genuine dispute of a

material issue of fact whether the claimed injury (i.e., Decedent’s death) occurred while the

Decedent, Donnie Lee Burris, was in a state of intoxication as defined in Texas Labor Code Ann.

§401.013, which would relieve Appellee of liability from compensation.

       Appellee objected to the affidavit of Dr. Robert J. Philips, but did not obtain a written

ruling on same or file a Motion to Strike Dr. Philips’ affidavit. The trial court’s order did not

address the affidavit of Dr. Philips or any evidentiary matters specifically. The crux of Appellee’s

argument appears to center on Dr. Philips’ affidavit contending that the affidavit failed to contain

some sort of magic language involving “personal knowledge.”

                                ARGUMENT & AUTHORITIES

       A.      Standard of Review

       Appellate courts review the granting of a motion for summary judgment de novo. See

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a movant files a no-

evidence motion in proper form under Texas Rule of Civil Procedure 166a(i), the burden shifts to

the non-movant to defeat the motion by presenting evidence that raises an issue of material fact

regarding the elements challenged by the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572,

                                                   4
582 (Tex. 2006). In other words, the non-movant must respond to a no-evidence motion by

presenting more than a scintilla of probative evidence on each challenged element. See King

Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); DR Partners v. Floyd, 228 S.W.3d

493, 497 (Tex. App.—Texarkana 2007, pet. denied).

       More than a scintilla of evidence exists when the evidence, as a whole, "rises to a level

that would enable reasonable and fair-minded people to differ in their conclusions." Merrell Dow

Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Welcome Co. v.

Crye, 907 S.W.2d 497, 499 (Tex. 1995)). The movant in a traditional motion for summary

judgment, filed pursuant to Rule 166a(c), has the burden of showing that no genuine issue of

material fact exists and that it is entitled to a summary judgment as a matter of law. See Am.

Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). The trial court must indulge every

reasonable inference in favor of the non-movant and resolve all doubts in his favor. Id. When, as

here, the trial court's order granting summary judgment does not specify the grounds relied upon,

the summary judgment may be affirmed if any of the summary judgment grounds are meritorious.

Progressive Cnty. Mut. Ins. Co. v. Kelley, 284 S.W.3d 805, 806 (Tex. 2009) (per curium).

       B.      A Material Issue of Fact Exits with Regard to Decedent’s Intoxication

       At the CCH on July 28, 2009, both Appellant and Appellee brought forth testimony from

expert witnesses for the Hearing Officer. All parties were allowed the opportunity to cross

examine witnesses. The Hearing Officer rendered his Decision and Order finding in favor of

Appellant and it was this initial ruling in Appellant’s favor that was appealed by the Appellee to

the Appeals Panel. In cases involving controlled substances, there is no level or test defined by the

                                                 5
statute that establishes per se if a person has lost use of his or her physical and mental faculties.

Am. Interstate Ins. Co. v. Hinson, 172 S.W.3d 108, 115 (Tex.App.-Beaumont 2005, pet. denied).

A fact issue should arise as a matter of law with regard to intoxication because there is no level or

test which determines even a minimum threshold level of marijuana metabolites or other

controlled substance(s) present to indicate intoxication or whether or not a person has lost control

of his or her physical and mental faculties.

        See Gulbenkian v. Penn, 252 S.W.2d 929, 931 (Tex. 1952) (noting that the purpose of

summary judgment Rule 166a is not to deprive litigants of their right to trial when there is an

issue of fact); Collins v. County of El Paso, 954 S.W.2d 137, 145 (Tex. App. - El Paso 1997,

n.w.h.); Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 258 (Tex. App. - Corpus Christi

1997, n.w.h.). The issue as to whether or not Decedent was intoxicated at the time of the accident

is a decision for the jury to decide.

        C.      The Affidavit of Dr. Robert J. Philips was based on Personal Knowledge

        The affidavit of Dr. Robert J. Philips was based on his personal knowledge of the case

derived from Dr. Philips’ testifying at the CCH on the review of the underlying facts and his own

personal research substantiating his opinion in his letter which was made a part of the

administrative record and also in the trial court. See Rizkallah v. Conner, 952 S.W.2d 580, 587

(Tex.App.-Houston [1st Dist.] 1997, no writ.). Dr. Philips specifically mentions in his verification

that he opined (“personally”) in the underlying administrative hearing that in his expert opinion

the postmortem drug levels found in Decedent’s drug screens were “totally invalid due to the

rapid redistribution from storage tissues.” Dr. Philips’ letter makes specific mention that he hopes

                                                   6
that his explanation is helpful in this case and if further explanation was needed, to “let him

know.”

         A verification, attached to the motion or response, that the contents are within the affiant's

knowledge and are both true and correct does not constitute a proper affidavit in support of

summary judgment under Rule 166a(f). Am. Petrofina, Inc. v. Allen, 887 S.W.2d 829, 830 (Tex.

1994) (citing Keenan v. Gibraltar Sav. Ass'n, 754 S.W.2d 392, 394 (Tex. App.--Houston [14th

Dist.] 1988, no writ) (referring to what was then Rule 166a(e)). The affidavit must itself set forth

facts and show the affiant's competency, and the allegations contained in the affidavit must be

direct, unequivocal and such that perjury is assignable. Keenan, 754 S.W.2d at 394. There is no

particulars required of an affidavit, the affidavit just must show that it is based on the personal

knowledge of the affiant. The affidavit of Dr. Phillips meets all these requirements, thus is proper

evidence in response to the Defendant’s Motion for Summary Judgment.

                          CONCLUSION AND PRAYER FOR RELIEF

         The trial court incorrectly erred by granting summary judgment to Appellee because there

were material issues of fact regarding Decedent’s intoxication at the time of his death and thus,

the Court should reverse the trial court’s decision granting Summary Judgment in this case.

Appellant prays that this Honorable Court reverse the ruling of the trial court and remand this case

back to the trial court to proceed to trial on the merits.




                                                7
Respectfully submitted,

THE WARNER LAW FIRM


/s/ Michael A. Warner
MICHAEL A. WARNER
State Bar No. 20872700
E-mail: mike@thewarnerlawfirm.com
BRENT C. HUCKABAY
State Bar No. 24085879
E-mail: brent@thewarnerlawfirm.com

101 S.E. 11th, Suite 301
Amarillo, Texas 79101
Tele: 806.372.2595
Fax: 866.397.9054

ATTORNEYS FOR APPELLANT




   8
                                       Certificate of Service

         I certify that a true copy of this the Brief of Appellant, Ashley Denham as parent and legal

guardian of Freedom Lynn Jean Burris, a minor child was served in accordance with rule 9.5 of the

Texas Rules of Appellate Procedure on each party or that party's lead counsel as follows:

TEXAS MUTUAL INSURANCE COMPANY, represented by

Arlene Matthews, Crenshaw, Dupree & Milam, L.L.P.

P.O. Box 1499                          Certified mail          Delivery service

Lubbock, Texas 79408-1499              _______________         _______________

Tele: 806.762.5281                     Fax transfer            Personal delivery

Fax:     806.762.3510                  #_____X____             _______________

Date of service: February 19, 2015

                                       Signed this 19th day of February, 2015.

                                       /s/ Michael A. Warner
                                       Michael A. Warner


                    CERTIFICATE OF COMPLIANCE WITH TARP 9.4(i)

         I certify that the Appellant’s Brief is in compliance with Texas Appellate Rule of

Procedure 9.4(i). The total word count for the document is 3284. The Total page length is 18

pages.

                                       Signed this 19th day of February, 2015

                                       /s/ Michael A. Warner
                                       Michael A. Warner


                                                  9
                          APPENDIX

Affidavit of Dr. Phillips…………………………………………………….   A

Dr. Phillips Letter for CCH…………………………………………………   B




                             10
EXHIBIT A
EXHIBIT B
