                           NUMBER 13-12-00498-CV

                          COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

JUAN ALFREDO MARTINEZ,                                               Appellant,

                                         v.


ARTHUR BECKWITH AND BENTON
BECKWITH D/B/A B&B FARMS,                                            Appellees.


                   On appeal from the 93rd District Court
                        of Hidalgo County, Texas.


                       MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      By three issues, appellant, Juan Alfredo Martinez, appeals the trial court’s

summary judgment in favor of appellee, Arthur Beckwith. We affirm.
                                        I. BACKGROUND

       On June 17, 2008, Martinez filed suit against Arthur Beckwith and Benton

Beckwith d/b/a B&B Farms for injuries he allegedly sustained while working at their

farm. On August 6, 2008, Arthur Beckwith filed a general denial.1 On March 30, 2009,

Arthur Beckwith filed his first amended answer, alleging the affirmative defense

provided by the Texas Workers’ Compensation Act (“TWCA”). See TEX. LABOR CODE

ANN. § 408.001(a) (West 2006).

       On October 6, 2011, Arthur Beckwith filed his amended motion for summary

judgment. On March 7, 2012, Martinez filed his response to Arthur Beckwith’s amended

motion for summary judgment. On April 12, 2012, Arthur Beckwith filed his reply to

Martinez’s response to his amended motion for summary judgment.

       On April 16, 2012, the trial court entered an order granting Arthur Beckwith’s

amended motion for summary judgment. In the order, the trial court stated that it was

“satisfied that due notice of [Arthur Beckwith’s amended] motion [for summary

judgment] and [the] hearing was given to all parties.” The trial court indicated that a

hearing was held on April 16, 2012.           The trial court stated that Arthur Beckwith’s

amended motion for summary judgment was granted and that all claims asserted

against Arthur Beckwith were thereby dismissed with prejudice. The trial court did not

state the basis for its ruling. The trial court did not purport to rule on any claims alleged

against Benton Beckwith.        The trial court did not state that the order was a final,

appealable order.




       1
           The record does not show that Benton Beckwith was served with citation. Benton Beckwith
never filed an answer.

                                                2
       On May 2, 2012, Martinez filed a motion to reconsider, requesting that the trial

court vacate its order granting Arthur Beckwith’s amended motion for summary

judgment. Among other things, Martinez argued that he did not receive notice of the

date and time of the summary judgment hearing.            The trial court did not rule on

Martinez’s motion. This appeal ensued.

                                      II. JURISDICTION

       “Neither party argues to this Court that the summary judgment was not a final,

appealable order.”    M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004).

“Nevertheless, we are obligated to review sua sponte issues affecting jurisdiction.” Id.

“In Lehmann v. Har-Con Corp., [the Texas Supreme Court] clarified the longstanding

general rule that ‘[a] judgment is final for purposes of appeal if it disposes of all pending

parties and claims in the record.’” Id. (citing Lehmann v. Har-Con Corp., 39 S.W.3d

191, 195 (Tex. 2001)).

       In Youngstown Sheet & Tube Co. v. Penn, the trial court’s order granting

summary judgment disposed of all parties named in the petition except one.

Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962).                   The

remaining party was never served with citation and did not file an answer, and nothing

in the record indicated that the plaintiff in the case ever expected to obtain service upon

the remaining party.      Id.   The Texas Supreme Court therefore held, “In these

circumstances the case stands as if there had been a discontinuance as to [the

unserved party], and the judgment is to be regarded as final for the purposes of appeal.”

Id.




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       “This holding in Penn was not overruled, expressly or otherwise, by Lehmann.”

M.O. Dental, 139 S.W.3d at 674. “[The Texas Supreme Court] said in Lehmann that ‘to

determine whether an order disposes of all pending claims and parties, it may of course

be necessary for the appellate court to look to the record in the case.’” Id. (quoting

Lehmann, 39 S.W.3d at 205–06). “[The Texas Supreme Court] continued, ‘If the record

reveals that there is only one plaintiff and only one defendant, X, the order is final, but if

the record reveals the existence of parties or claims not mentioned in the order, the

order is not final,’ unless it is made final by its own language.” Id. (quoting Lehmann, 39

S.W.3d at 206). “In Penn, an examination of the record revealed no intent that the

plaintiff expected to serve the unserved defendant, and [the Texas Supreme] Court

correctly regarded the judgment as final.” Id.

       In M.O. Dental, the Texas Supreme Court concluded that “an examination of the

record affirmatively reveals that the order granting summary judgment was final.” Id.

The Texas Supreme Court noted that, “Rape, in her original petition, stated ‘the location

for service of Defendant Charlie Smith is unknown at this time, so no citation is

requested.’” Id. Furthermore, “[a]fter the trial court granted summary judgment, Rape

appealed, but did not indicate in either the trial court or the court of appeals that she

expected to serve Smith and, therefore, that the summary judgment was not final.” Id.

“Additionally, both Rape and M.O. Dental Lab agreed in their briefs to the court of

appeals that Smith was never served with process in this case.” Id.

       “[The Texas Supreme Court’s] decision in Park Place Hospital v. Estate of Milo is

not inconsistent with Penn regarding defendants who have not been served.” Id. at 675

(citing Park Place Hospital v. Estate of Milo, 909 S.W.2d 508 (Tex. 1995)). “In Milo a



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summary judgment did not dispose of claims against a defendant who had not been

served or against another defendant that the plaintiff had non-suited.” Id. (citing Milo,

909 S.W.2d at 510). “No order dismissing the suit as to the latter defendant had been

signed, and the summary judgment did not contain a ‘Mother Hubbard’ clause.” Id.

“[The Texas Supreme Court] held that ‘the appellate timetable could not be triggered

until a signed, written order of the court dismissed [the nonsuited defendant].’”     Id.

(quoting Milo, 909 S.W.2d at 510). “[The Texas Supreme Court] continued, ‘Until the

trial court rendered its severance order, the summary judgment for the hospital, [a

physician, and a nurse] did not become final and appealable.’” Id. (quoting Milo, 909

S.W.2d at 510).    “[The Texas Supreme Court] did not discuss whether the plaintiff

expected to serve the defendant who had not been served or whether the summary

judgment could or could not have become final without severance as to that defendant.”

Id.

       Based on the foregoing authority, we conclude that the summary judgment in this

case is a final, appealable order.

                                       III. NOTICE

       In his first issue, Martinez argues that the trial court erred in granting summary

judgment because he did not receive notice of the summary judgment hearing.




A. Applicable Law

       The right to summary judgment exists only when the requirements of Rule 166a

are satisfied. See Tanksley v. CitiCapital Commercial Corp., 145 S.W.3d 760, 763



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(Tex. App.—Dallas 2004, pet. denied) (citing TEX. R. CIV. P. 166a(c)). “Proper notice to

the nonmovant of the summary judgment hearing is a prerequisite to summary

judgment.” Id. The rules of civil procedure provide that the nonmovant must receive 21

days’ notice before a summary judgment hearing. TEX. R. CIV. P. 166a(c). A notice

may be served on a party by delivering a copy via certified or registered mail to the

party’s last known address. TEX. R. CIV. P. 21a. A certificate by a party or an attorney

of record is prima facie evidence of the fact of service. Miller v. Prosperity Bank, N.A.,

239 S.W.3d 440, 442 (Tex. App.—Dallas 2007, no pet.).            As noted by the Texas

Supreme Court, “notice properly sent pursuant to Rule 21a raises a presumption that

notice was received.”     Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005).

“However, the opposing party may rebut this presumption by offering proof that the

notice or document was not received.” Miller, 239 S.W.3d at 442. “Lack of notice to the

nonmovant of the summary judgment hearing violates the nonmovant’s due process

rights.” Etheredge v. Hidden Valley Airpark Ass’n, 169 S.W.3d 378, 381 (Tex. App.—

Fort Worth 2005, pet. denied).

B. Discussion

       In this case, notice of the hearing was not served with the motion for summary

judgment. Thus, although the motion for summary judgment includes a certificate of

service, the certificate of service is for the motion for summary judgment, not for the

notice of the hearing. See Tanksley, 145 S.W.3d at 763 (“If the motion for summary

judgment is served separately from the notice of hearing, the notice must contain a

certificate of service and it must be served at least 24 days before the hearing.”). As the

party moving for summary judgment, Arthur Beckwith was required to serve notice of



                                            6
the hearing on Martinez as a prerequisite to summary judgment. See id. There is no

evidence that Arthur Beckwith sent notice of the hearing to Martinez. Furthermore, “we

cannot presume that notice was properly sent.” Mathis, 166 S.W.3d at 745.

       Arthur Beckwith contends that the trial court’s order conclusively establishes that

Martinez received notice of the summary judgment hearing. Although the trial court’s

order states that the trial court was “satisfied that due notice of [Arthur Beckwith’s

amended] motion [for summary judgment] and [the] hearing was given to all parties,” it

is unclear what basis the trial court had for making such a finding. Neither Martinez nor

his counsel appeared at the hearing. Under these circumstances, it was inappropriate

for the trial court to presume that notice of the hearing was properly sent. See id.

       Finally, Arthur Beckwith contends that the trial court’s order dated March 15,

2012 is proof that notice was sent. In the order, the trial court states that it is setting the

summary judgment hearing for April 16, 2012. At the bottom of the order, the word

“copies” appears next to the names and addresses of all counsel of record. Arthur

Beckwith contends that this is sufficient to create a presumption that notice was properly

sent to Martinez. We disagree.

       “It is true that notice properly sent pursuant to Rule 21a raises a presumption that

notice was received.” Id. In relevant part, Rule 21a states, “A certificate by a party or

an attorney of record, or the return of the officer, or the affidavit of any person showing

service of a notice shall be prima facie evidence of the fact of service.” TEX. R. CIV. P.

21a. In this case, the trial court’s order does not include a certificate of service, the

return of an officer, or the affidavit of any person showing service of the notice.

Therefore, the order is not sufficient to create a presumption that notice was properly



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sent or received.    Accordingly, we conclude that the trial court erred in granting

summary judgment without notice of the hearing being given to Martinez.

       Next, we must determine whether the error is reversible. See TEX. R. APP. P.

44.1. The error is not reversible unless it either “(1) probably caused the rendition of an

improper judgment; or (2) probably prevented the appellant from properly presenting the

case to the court of appeals.” Id.

       “A trial court must give notice of the submission date for a motion for summary

judgment, because this date determines the date the nonmovant’s response is due.”

Aguirre v. Phillips Props., Inc., 111 S.W.3d 328, 332 (Tex. App.—Corpus Christi 2003,

pet. denied) (op. on reh’g). “The failure to give notice of the submission date for a

motion for summary judgment constitutes error; but, such error is rendered harmless

when the trial court considers the nonmovant’s response and reconfirms its ruling.” Id.

In this case, Martinez was not prevented from timely filing a response. Therefore, we

cannot conclude that the alleged lack of notice probably caused the rendition of an

improper judgment or probably prevented him from properly presenting the case on

appeal. See Whiteside v. Ford Motor Credit Co., 220 S.W.3d 191, 194–95 (Tex. App.—

Dallas 2007, no pet.) (“Given that appellant timely filed a summary judgment response,

he has not shown any harm, and he has no apparent meritorious defense, we cannot

conclude that the alleged lack of notice probably caused the rendition of an improper

judgment or probably prevented him from properly presenting the case on appeal.”); see

also Martin v. Martin, Martin & Richards, Inc., 989 S.W.2d 357, 359 (Tex. 1998) (holding

“that notice of submission is required, and that the lack of notice in this case was not

reversible error because the district court considered [the nonmovant’s] response and



                                            8
reconfirmed its ruling”); Aguirre, 111 S.W.3d at 335 (holding that “the failure to provide

notice prevented [nonmovant] from presenting any response to defendant’s motion for

summary judgment . . . [and was therefore] error [that] was not rendered harmless”).

       Martinez’s first issue is overruled.

                                         IV. WAIVER

       In his second issue, Martinez contends that Arthur Beckwith waived his defense

under the TWCA by failing to plead it in his original answer.

A. Applicable Law

       Rule 94 of Texas Rules of Civil Procedure, “Affirmative Defenses,” provides in

relevant part:

       In pleading to a preceding pleading, a party shall set forth affirmatively
       accord and satisfaction, arbitration and award, assumption of risk,
       contributory negligence, discharge in bankruptcy, duress, estoppel, failure
       of consideration, fraud, illegality, injury by fellow servant, laches, license,
       payment, release, res judicata, statute of frauds, statute of limitations,
       waiver, and any other matter constituting an avoidance or affirmative
       defense.

TEX. R. CIV. P. 94.

       Rule 63 of the Texas Rules of Civil Procedure, “Amendments and Responsive

Pleadings,” provides:

       Parties may amend their pleadings, respond to pleadings on file of other
       parties, file suggestions of death and make representative parties, and file
       such other pleas as they may desire by filing such pleas with the clerk at
       such time as not to operate as a surprise to the opposite party; provided,
       that any pleadings, responses or pleas offered for filing within seven days
       of the date of trial or thereafter, or after such time as may be ordered by
       the judge under Rule 166, shall be filed only after leave of the judge is
       obtained, which leave shall be granted by the judge unless there is a
       showing that such filing will operate as a surprise to the opposite party.

TEX. R. CIV. P. 63.



                                              9
B. Discussion

      Martinez argues that Arthur Beckwith waived his affirmative defense under the

TWCA by failing to plead it in his original answer. According to Martinez, the trial court

therefore erred in granting summary judgment to Arthur Beckwith based on his

affirmative defense. We disagree.

      As set forth above, Rule 63 of the Texas Rules of Civil Procedure provides that

parties are allowed to amend their pleadings. See id. In this case, Arthur Beckwith filed

an amended answer on March 30, 2009, asserting an affirmative defense under the

TWCA. On October 6, 2011, Arthur Beckwith filed his amended motion for summary

judgment on his affirmative defense. Thus, at the time Arthur Beckwith moved for

summary judgment, he had pled his affirmative defense. Accordingly, we conclude that

Martinez has not demonstrated that Arthur Beckwith waived his affirmative defense

under the TWCA.

      Martinez’s second issue is overruled.

                                 V. SUMMARY JUDGMENT

      In his third issue, Martinez argues that the trial court erred in granting summary

judgment in favor of Arthur Beckwith.

A. Standard of Review

      We review summary judgments de novo. Alejandro v. Bell, 84 S.W.3d 383, 390

(Tex. App.—Corpus Christi 2002, no pet.).         In a traditional motion for summary

judgment, the movant has the burden of showing both that there is no genuine issue of

material fact and entitlement to judgment as a matter of law. TEX. R. CIV. P. 166a(C);

see also Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); Ortega v. City Nat’l Bank,



                                           10
97 S.W.3d 765, 772 (Tex. App.—Corpus Christi 2003, no pet.). In deciding whether

there is a genuine issue of material fact, evidence favorable to the nonmovant is taken

as true, and all reasonable inferences are made, and all doubts are resolved, in favor of

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

Summary judgment is proper if the movant disproves at least one element of each of

the plaintiff’s claims or affirmatively establishes each element of an affirmative defense

to each claim. Id.; see also Duvall v. Tex. Dep’t of Human Servs., 82 S.W.3d 474, 477

(Tex. App.—Austin 2002, no pet.) (“A defendant who moves for [traditional] summary

judgment must disprove at least one essential element of the plaintiff’s causes of

action.”). The nonmovant has no burden to respond to a traditional summary judgment

motion unless the movant conclusively establishes its cause of action or defense.

Swilley, 488 S.W.2d at 68.

B. Applicable Law

      The TWCA states that “[r]ecovery of workers’ compensation benefits is the

exclusive remedy of an employee covered by workers’ compensation insurance

coverage or a legal beneficiary against the employer . . . for the death of or a work-

related injury sustained by the employee.” See TEX. LABOR CODE ANN. § 408.001(a).

“The exclusive remedy provision is an affirmative defense that the defendant must plead

and prove.” Warnke v. Nabors Drilling USA, L.P., 358 S.W.3d 338, 343 (Tex. App.—

Houston [1st Dist.] 2011, no pet.); see also Exxon Corp. v. Perez, 842 S.W.2d 629, 630

(Tex. 1992) (“[U]nless an employee gives timely notice of his reservation of common-

law claim, an employer who pleads and proves subscriber status is immune from liability

for common-law negligence and the employee’s exclusive remedy is under the



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[TWCA].”). “[I]n light of the TWCA’s definitions of employer and employee the plaintiff’s

claims are barred by the exclusive remedy provision if the defendant] establishes: (1) it

was the plaintiff’s employer within the meaning of the TWCA, and (2) it was covered by

a workers’ compensation insurance policy.”                     Western Steel Co. v. Altenburg, 206

S.W.3d 121, 123 (Tex. 2006).

C. Grounds for Summary Judgment

          In his amended motion for summary judgment, Arthur Beckwith argued that he

was entitled to judgment as a matter of law because his summary judgment evidence

conclusively established both elements of his affirmative defense:                    (1) he was

Martinez’s employer; and (2) he was covered by a workers’ compensation insurance

policy.

D. Response

          In his response, Martinez argued that summary judgment was improper because

there were genuine issues of material fact.2 First, according to Martinez, his injuries

were sustained at a location several miles west of the covered locations specified in the

policy relied upon by Arthur Beckwith. Second, according to Martinez, his injuries were

sustained while he was working as a tractor operator, and the policy relied upon by

Arthur Beckwith does not cover tractor operators because it is limited to only two

classifications of workers: (1) “farm: gardening-market or truck & drivers” and (2)

          2
              Specifically, Martinez stated as follows:

                   In the alternative, the Court [should] deny Defendant’s Amended Motion for
          Summary Judgment because of the genuine issues of material facts and other
          arguments, argued in Plaintiff’s First Amended Response to Defendant’s Motion for
          Summary Judgment, file[d] with the court on September 10, 2009 and incorporated
          here[in] by reference in its entirety with exhibits attached thereto.

        Accordingly, in deciding Martinez’s third issue, we use the arguments made by Martinez in his
First Amended Response to Defendant’s Motion for Summary Judgment.

                                                          12
“clerical office employees.” Third, according to Martinez, even if the policy covered his

injuries, Arthur Beckwith “failed to inform [him] of any such alleged medical insurance

coverage.”

E. Discussion

      We conclude that Arthur Beckwith met his burden to “conclusively establish[ that

he] . . . subscribed to workers’ compensation insurance, that [Martinez] was an

employee, and that he suffered a work-related injury.” Port Elevator-Brownsville, L.L.C.

v. Casados, 358 S.W.3d 238, 240 (Tex. 2012).         Accordingly, the burden shifted to

Martinez to raise a genuine issue of material fact precluding summary judgment. See

Swilley, 488 S.W.2d at 68.

      In his response, Martinez argued that he was not covered by any job

classification code in Arthur Beckwith’s workers’ compensation insurance policy. As the

Texas Supreme Court held in Port Elevator-Brownsville, however, “the rule against split

workforces requires that all employees be covered—absent a limited statutory or

common-law exception.” Id. at 244. There is no evidence that any exception to the rule

against splitting workforces applies here:      (1) Arthur Beckwith operated only one

business known as B&B Farms; (2) Martinez was not an officer of B&B Farms; and (3)

Martinez was an employee. See id. at 243. “Because no exception applies, it does not

matter whether [Martinez] was covered by a code classification.” Id. at 244.

      In addition, Martinez argued that his injuries were sustained at a location that

was not specified in Arthur Beckwith’s workers’ compensation insurance policy. On

appeal, Martinez has not cited any authority in support of his contention. See Slagle v.

Prickett, 345 S.W.3d 693, 700 (Tex. App.—El Paso 2011, no pet.) (“When a litigant fails



                                           13
to cite any authority for his position, the issue is inadequately briefed, and we have

discretion to deem the argument waived.”) (citing TEX. R. APP. P. 38.1(i)). Martinez has

also failed to provide an argument. See Stephens v. Dolcefino, 126 S.W.3d 120, 126

n.5 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that issue was

inadequately briefed when party merely cited to the summary-judgment proof and

standard of review without providing any argument or analysis). Therefore, the issue is

inadequately briefed. See Slagle, 345 S.W.3d at 700. As such, it is waived. See id.

      Finally, Martinez also argued that there was a genuine issue of material fact

about whether he had notice that Arthur Beckwith was a subscriber to workers’

compensation insurance. “However, the case law construing the current Texas Labor

Code provision applicable to this case does not require employers to provide affirmative

notice of workers’ compensation coverage to the employee for the exclusive remedy

provision to apply.” Wesby v. Act Pipe & Supply, Inc., 199 S.W.3d 614, 619 (Tex.

App.—Dallas 2006, no pet.). “Failure to notify an employee of coverage constitutes an

administrative violation, punishable only by a fine.” Id. “Neither workers’ compensation

coverage nor the exclusivity bar of the workers’ compensation statute hinges on

whether notice has been provided to employees.” Id.

      Martinez’s third issue is overruled.




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                                    VI. CONCLUSION

      The judgment of the trial court is affirmed.



                                                _______________________
                                                NORA L. LONGORIA
                                                Justice

Delivered and filed the
18th day of April, 2013.




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