                                                                                          ACCEPTED
                                                                                     07-15-00113-CV
                                                                        SEVENTH COURT OF APPEALS
                                                                                  AMARILLO, TEXAS
                                                                                6/22/2015 9:45:58 AM
                                                                                    Vivian Long, Clerk

                      Cause 07-15-00113-CV

                               In the
                                                                     FILED IN
                                                              7th COURT OF APPEALS
                                                                AMARILLO, TEXAS
     ~ebentb 1!)istritt (![ourt of ~ppeaIs                    6/22/2015 9:45:58 AM
                                                                   VIVIAN LONG
                          Amarillo, Texas                             CLERK




Mohammed Fawwaz Shoukfeh, M.D., PA; d/b/a Texas Cardiac Center,

                             Appellant,

                                 v.

       James G. Grattan and Texas Workforce Commission,

                             Appellees



                      From Cause 2014-510,479
          In the 99th District Court, Lubbock County, Texas
          The Honorable William Sowder, Judge Presiding


          BRIEF OF APPELLEE JAMES G. GRATTAN


               ORAL ARGUMENT REQUESTED



                               SPLAWN SIMPSON PITTS
                               907 Texas Avenue (79401)
                               P.o. Box 1376
                               Lubbock, TX 79408-1376
                               Telephone: (806) 765-8048
                               Facsimile: (806) 765-5308
                               John Simpson     SBN 18411500
                               John@ssplubbocklaw.com
                               Attorneys for Appellee James G. Grattan
                       TABLE OF CONTENTS

                                           Page

TABLE OF AUTHORITIES                              iii

STATEMENT OF THE CASE                         1

STATEMENT CONCERNING ORAL ARGillvfENT         2

ISSUES PRESENTED                              2

STATEMENT OF FACTS                            2

SUMMARY OF THE ARGUMENT                       4

ARGUMENT                                      5

PRAYER                                       12

CERTIFICATE OF SERVICE                       13

CERTIFICATE OF COMPLIANCE                    13




                                11
                       TABLE OF AUTHORITIES

Statutes and Codes:

Tex. Lab. Code Ann. § 212.202 (2014);                                         6


Cases:

Edwards v. TexasEmployment Comm 'n, 936 S.W.2d 462,465
     (Tex. App.-Fort Worth 1996, no writ)                                     6

Fire Department of City of Fort Worth v. City of Fort Worth,
      217 S.W.2d 664,665 (Tex. 1949)                                      6, 12

Fireman's and Policemen's Civil Service Comm'n v. Brinkmeyer,
     672 S.W.2d 953, 956 (Tex. 1984)                                       6, 9

Levelland I.S.D. v Contreras, 865 S.W.2d 474, 476
      (Tex. App.-Amarillo 1993, writ denied)                             7, 8, 9

Mercer v. Ross, 701 S.W.2d 830, 831 (Tex. 1986);                              6

Olivarez v. Aluminum Corp. 0/ America, 693 S.W.2d 931, 932 (Tex. 1985)        6

Texas Employment Comm 'n v. Hodges, 732 S.W.2d 427,428
      (Tex. App.-Dallas 1987, no writ)                                        7

Texas Employment Comm 'n v. Ryan, 481 S.W.2d 172, 175
      (Tex. Civ. App.-Texarkana 1972, no writ)                                7




                                        III
TO THE HONORABLE              COURT OF APPEALS:

        This appeal arose from the granting of a summary judgment for James G.

Grattan and the Texas Workforce Commission and the denial of a motion for

summary judgment for Mohammed Fawwaz Shoukfeh, M.D., P.A. d/b/a Texas

Cardiac Center. The primary issue is a contested wage claim or Pay Day claim of

James G. Grattan, employee, against his employer, Mohammed Fawwaz

Shoukfeh, M.D., P.A. d/b/a Texas Cardiac Center, which was submitted to and

decided by the Texas Workforce Commission pursuant to Chapter 61, Texas Labor

Code.

        The Commission rendered its decision in favor of Grattan and Shoukfeh

appealed to the District Court of Lubbock County, Texas. Competing summary

judgments were filed in the proceeding in the 99th District Court.

        James G. Grattan asks the Court of Appeals to affirm the decision of the trial

court because there is substantial evidence in the TWC record to support the

decision of the Commission and the decision of the Commission is not arbitrary or

caprIcIous.


                          STATEMENT OF THE CASE

        Nature of the Case. James G. Grattan brought a wage claim against his

employer under the authority of Chapter 61, Texas Labor Code. A telephonic

hearing was held. The administrative law judge rendered her decision and it was
                                           1
published to all parties. Both sides, Grattan and Shoukfeh, appealed that decision

to the full Commission.

      The Commission rendered a final decision on February 6, 2014. Shoukfeh

appealed the decision in accordance with the Texas Labor Code by filing suit in the

99th District Court of Lubbock County, Texas. The appeal is a substantial evidence

appeal. All parties filed motions for summaryjudgment.

      The Underlying Disposition. The trial court granted Grattan's and the

Texas Workforce Commission's motions and denied Shoukfeh's motion finding

that there was substantial evidence to support the decision of the Commission.

             STATEMENT CONCERNING ORAL ARGUMENT

      Grattan requests oral argument under the authority of Texas Rule of

Appellate Procedure 39.1.

                             ISSUES PRESENTED

      Whether the trial court correctly granted the motions for summary

judgments of Grattan and the Commission and denied the motion for summary

judgment of Shoukfeh because there was substantial evidence in the TWC record

to support the decision of the Commission in favor of Grattan.

                            STATEMENT OF FACTS

      Chapter 61, Texas Labor Code provides a claims procedure and adjudication

system for wage disputes between employees and employers. James Grattan was

                                         2
an employee of Mohammed Fawwaz Shoukfeh, M.D., P.A. d/b/a Texas Cardiac

Center from 2006 until 2013. Upon his departure a dispute arose over the amount

of compensation due to him as an employee. Grattan filed a claim under Chapter

61, Texas Labor Code, Texas Pay Day Statute. Shoukfeh disputed the claim or

claims of Grattan. The issues were highly contested.

      A telephonic hearing was held and the administrative law judge rendered a

decision partially favorable to Grattan. Both Grattan and Shoukfeh appealed the

administrative law judge's decision. The full Commission considered the appeals

and rendered a final decision favorable to Grattan. Pursuant to Chapter 61, Texas

Labor Code, Shoukfeh appealed to the district court of Lubbock County, Texas.

All parties, including the Texas Workforce        Commission,   filed motions for

summary judgment.

      The trial court reviewed the motions, the TWC Record, the evidence and the

argument of counsel. The trial court rendered its judgment in favor of Grattan

finding that there was substantial       evidence to support the decision of the

Commission and that the decision was not arbitrary and capricious.

      Shoukfeh appeals to this Court urging that the decision of the Commission is

not supported by substantial evidence.




                                           3
                     SUMMARY OF THE ARGUMENT

      Grattan would show that the issues herein have been highly contested from

the fling of the original TWC claim. Both sides presented many documents to

support their respective positions. Both sides were so confident in their positions

that each appealed the decision of the administrative law judge.

      The sole issue before the trial court was whether there was substantial

evidence to support the decision of the Commission. The record of the

Commission and other affidavit evidence was presented to the trial court. The

judgment holds that the trial court found there to be substantial evidence to support

the decision of the Commission. Grattan would show that the trial court was

correct because there is substantial and significant evidence to support the decision

of the Commission.

      Grattan asks the Court of Appeals to affirm the judgment of the trial court.




                                          4
                                 ARGUMENT

      Grattan would show that this cause is brought by the Plaintiff ("Shoukfeh")

as an appeal from a decision of the Texas Workforce Commission, Chapter 61,

Texas Labor Code. The cause was filed on February 28, 2014. The Texas

Workforce Commission and Grattan answered therein. This is a substantial

evidence appeal and the Trial Court was confined to the "Record" before the

Commission in its analysis of this case. CR: 73-250

      Grattan was an employee of Mohammed Fawwaz Shoukfeh, MD, PA, for

several years, ending his employment on or about April 30, 2013. Grattan filed a

Wage Claim with the TWC on or about May 21, 2014. A preliminary

determination was made by the TWC awarding benefits to Grattan. An appeal of

this preliminary decision was taken by both parties. A telephonic heating was held

before Hearing Officer S. Dennis. The hearing officer issued her decision on

October 7, 2013. Grattan timely appealed the hearing officer's decision pursuant to

Chapter 61, Texas Labor Code, on or about October 21, 2013.

      On or about February 6, 2104, the Texas Workforce Commission rendered

its final decision awarding Grattan $125,988.91, finding that "The claimant's

original calculation of what he is owed is reasonable and supported by the weight

of the evidence." [TWC Record, TWC 000005/Grattan 00003] CR: 23-24, CR:

351-353

                                         5
                               Standard of Review

      Texas law dictates that courts review TWC unemployment benefit

determinations under the substantial evidence trial de novo standard. Tex. Lab.

Code Ann. § 212.202 (2014); Mercer     v,   Ross, 701 S.W.2d 830, 831 (Tex. 1986);

Edwards v. Texas Employment Comm 'n, 936 S.W.2d 462, 465 (Tex. App.-Fort

Worth 1996, no writ). In conducting this limited review, the court only determines

whether the Commission's decision is reasonably supported by more than a mere

scintilla of evidence. See Olivarez v. Aluminum Corp. of America, 693 S.W.2d 931,

932 (Tex. 1985) ("Although substantial evidence must be more than a mere

scintilla, it need not be a preponderance. In fact, the evidence may be substantial

and yet greatly preponderate the other way."). Further, the substantial evidence

inquiry presents only a question of law to the court. Fireman's and Policemen's

Civil Service Comm'n v. Brinkmeyer, 672 S.W.2d 953, 956 (Tex. 1984). The Texas

Supreme Court described the standard as follows:

      Although the statute [a civil service act] provides for a trial de novo,
      this term as applied to reviews of administrative orders has come to
      have a well-defined significance in the decisions of this state, and as a
      rule has been taken to mean a trial to determine only the issues of
      whether the agency's ruling is free of the taint of any illegality and is
      reasonably supported by substantial evidence.

Fire Department of City of Fort Worth v. City of Fort Worth, 217 S.W.2d 664, 665

(Tex. 1949).



                                            6
      Because no issues of fact exist, the trial court may not substitute its

judgment for that ofTWC on disputed issues of fact and must defer to TWC's fact-

finding authority. Brinkmeyer, 662 S.W.2d 953 at 956. Evidence at trial may be

conflicting and even preponderate against an employer, employee, or TWC, and

yet still amount to substantial evidence. Olivarez, 693 S.W.2d at 932.

      The trial de novo aspect of the standard only means that evidence must be

independently admitted, as in any other civil case. Therefore, the Texas Rules of

Evidence and the Texas Rules of Civil Procedure govern what evidence is

admissible at trial or on summary judgment. Levelland LSD. v Contreras, 865

S.W.2d 474, 476 (Tex. App.-Amarillo 1993, writ denied). However, once a party

establishes a proper evidentiary predicate, then the Court simply determines if

substantial evidence is present. Edwards, 936 S.W.2d at 465-67.

      The Texas Supreme Court has held that substantial evidence exists if more

than a mere scintilla of evidence supports the agency's decision. Olivarez, 693

S.W.2d at 932. Further, Texas courts note that, unlike preponderance cases, no

weighing of the evidence occurs:

      No weighing of facts may be made by the courts, and as a result, the
      preponderance of the evidence is immaterial, as the courts cannot
      substitute their discretion for that of the Commission.

Texas Employment Comm 'n v. Ryan, 481 S.W.2d 172, 175 (Tex. Civ. App.-

Texarkana 1972, no writ); see also Texas Employment Comm 'n v. Hodges, 732

                                          7
S.W.2d 427, 428 (Tex. App.-Dallas       1987, no writ). ("Neither the trial court nor

the appellate court is permitted to determine whether the Commission's decision is

right or wrong, or to substitute its judgment for the Commission's.")

      Because it is acting under delegated authority, TWC's decision is presumed

to be correct. Mercer, 701 S.W.2d 830 at 831. Plaintiff bears the entire burden of

showing TWC's decision was unreasonable and was made without regard to the

law or the facts. Id; Levelland I.S.D. v Contreras, 865 S.W.2d 474. 477 (Tex.

App.-Amarillo    1993. writ denied.)

      There is abundant evidence in the TWC record to support the decision of the

Commission. This matter was highly contested from the beginning of the

proceeding. Prior to the preliminary decision, both parties submitted several pages

of documentation in support of their respective positions. It is important to note

that both parties appealed the preliminary decision. [TWC 000097/Grattan 00095]

CR: 97

      Numerous exhibits and documents were submitted to the Commission prior

to the Pay Day Hearing on October 1, 2014. Following the hearing both sides

submitted competing documentation of their respective positions. The hearing

officer awarded Grattan "$5,817.32." Both parties appealed.

      Reduced to the lowest common denominator, the critical dispute between

Shoukfeh and Grattan was whether the "overhead calculation" should be

                                           8
determined by dividing the total overhead by four doctors or by three. Shoukfeh

argued that the overhead should be divided by three doctors while Grattan argued

that the overhead should be divided by four.

      Dr. Shoukfeh propounded the theory that a fourth doctor should not be

considered in dividing the overhead as between the doctors even though a fourth

doctor was practicing with the group. The TWC record contains the spreadsheet

calculations Dr. Grattan used in arriving at his "amount due" figure considering a

fourth doctor in the overhead calculation. [TWC 000163-173; James Grattan

00161-00171]     CR: 235-243 Clearly this is evidence that supported Grattan's

theory of the calculation. Plus, the TWC record discloses the documents and

evidence of a prior course of dealings between the patties whereby each doctor's

share of overhead was calculated on a pro rata basis over several years of practice,

using all of the doctors in the practice group. [TWC 000012-000016; James

Grattan 00010-00014]     CR: 84-88 This was still more evidence that supported

Dr. Grattan's position and represented substantial evidence that supported the

Commission's    final luling and final award. The Commission made its decision

based upon the evidence before it and there is substantial and material evidence to

support that decision in the TWC record.

       The proposition now before the Court is a matter of law only. Fireman's and

Policemen's Civil Service Comm'n v. Brinkmeyer, 672 S.W.2d 953, 956 (Tex.

                                           9
1984). Shoukfeh bears the entire burden of showing TWC's             decision was

unreasonable and was made without regard of the law or the facts. Levelland 1.S.D.

v Contreras, 865 S.W.2d 474,477 (Tex. App.-Amarillo 1993, writ denied.) Since

the Court's review is confined to the TWC's record, Grattan urges the Court to

review the record and confirm that there is adequate and substantial evidence to

support the ultimate and final award of the Commission. Upon review, it is clear

that Shoukfeh cannot meet the heavy burden of proof as required by the Contreras

case before the trial court or this Court.

      At page 11 of Appellant's Brief the issue is clearly defined - whether the

overhead was to be divided by three physicians or four physicians. Appellant says,

"Although the practice had typically employed four physicians, during times of

transition, three physicians divided the overhead expenses." Brief of the Appellant,

Page 11

      This describes the CIUX of the dispute. Grattan and the others never agreed to

divide the overhead by three instead of four physicians. The decision to do so was

made solely by Dr. Shoukfeh without consulting any other physician.

Dr. Quaddour was seeing patients and was billing for his services; he was getting

paid by the group; and was utilizing the equipment and staff of the group. It makes

perfect sense that the doctors would expect to divide the overhead by the number

of physicians in the group.

                                             10
      This factual dispute was clearly before the Commission. Dr. Shoukfeh made

his case. Dr. Grattan made his case for his interpretation. The Commission decided

the case in favor of Grattan's interpretation.

      The TWC decision herein is clear, calculated, reasoned, based upon the law

of the case, the facts of the case, and is not unreasonable. The TWC calculated its

award by using a base net receipt figure and subtracting from that number the

amounts paid to Grattan. Therefore, the award of the Commission is not arbitrary

or capricious.




                                            11
                                   PRAYER

      Wherefore, James G. Grattan prays that upon consideration of the TWC

record in accordance with Chapter 61, Texas Labor Code, as well as, the pleadings

in this case, the Court of Appeals affirm the judgment of the trial court which

affirmed the decision of the Texas Workforce Commission, dismiss the appeal of

Shoukfeh and enter a judgment in favor of Grattan.

                                     Respectfully submitted,

                                     SPLAWN SIMPSON PITTS
                                     907 Texas Avenue (79401)
                                     P.O. Box 1376
                                     Lubbock, TX 794081-1376
                                     (806) 765-8048
                                     (806) 765-5308 fax
                                     attorney@ssplubbocklaw.com



                                     By:   /s/ John Simpson
                                           John Simpson        SBN: 18411500
                                        Attorney for Appellee James G. Grattan




                                        12
                         CERTIFICATE       OF SERVICE

      On June 22, 2015, the undersigned certified that he electronically served a
copy of this brief on the attorneys of record of the parties:

Grady Terrill
Gary Bellaire
CRAIG, TERRll..L, HALE & GRANTHAM, L.L.P.
9816 Slide Road, Suite 201
Lubbock, TX 79424

Peter Laurie
ASSISTANTATTORNEYGENERAL
P.O. Box 12548
Austin, TX 78711-2548


                                             lsI John Simpson
                                      John Simpson


                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that this brief complies with the typeface and

length provisions of TEX. R. ApP. P. 9.4 because (1) I prepared this computer-

generated document in a proportionally-spaced typeface using the 14-point Times

New Roman font of Microsoft Word 2010; and (2) I relied on the word-count

feature of the computer program used to determine the brief contains 2,453 words,

exclusive of the parts exempted by TEX.R. APP. P. 9(i)(2)(B).


                                             lsI John Simpson
                                      SPLAWNSIMPSONPITTS



                                        13
