                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-10-00419-CV


MICHAEL M. BLANCHARD                                             APPELLANT

                                      V.

BRAZOS FOREST PRODUCTS,                                          APPELLEES
L.P. AND TEXAS WORKFORCE
COMMISSION


                                   ----------

        FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

                                   ----------

                                 OPINION
                                   ----------

                               I. Introduction

      Appellant Michael M. Blanchard appeals the trial court’s summary

judgment in favor of Appellees Brazos Forest Products, L.P. (Brazos) and Texas

Workforce Commission (TWC). Blanchard contends in two issues that the trial

court erred by granting summary judgment against him because it applied the
wrong summary judgment standard and made incorrect evidentiary rulings. We

affirm.

                                  II. Background

      Blanchard was employed as a truck driver for Brazos, but Brazos

terminated Blanchard’s employment on June 17, 2008, because he allegedly

treated a customer inappropriately. Blanchard sought unemployment benefits,

but the TWC appeal tribunal denied his claim. The TWC affirmed the denial, and

Blanchard appealed to district court. Brazos and TWC filed a joint motion for

summary judgment, which the trial court granted after overruling most of

Blanchard’s objections to Brazos and TWC’s summary judgment evidence.

      In support of their joint motion for summary judgment, Brazos and TWC

presented affidavits by Helen Nguyen, Randy Nguyen, Kyle Arterburn, and Daren

Schirico.   Ms. Nguyen stated in her affidavit that Blanchard delivered wood

supplies to RD Shutters, Inc. on June 17, 2008, and that she was familiar with

Blanchard from prior deliveries. She related that Blanchard typically entered the

front office when he arrived for deliveries so that RD Shutters employees could

assist him, but she said that Blanchard did not do so that day, that he instead

began unloading the wood supplies himself, that he began throwing the supplies

onto the loading dock, and that Blanchard had been rude and disrespectful

during at least one prior delivery.

      Mr. Nguyen was also employed by RD Shutters on June 17, 2008. He

stated by affidavit that he was present during Blanchard’s delivery on that date,


                                        2
that he personally witnessed Blanchard throwing wood supplies onto the loading

dock, that he personally asked Blanchard to stop throwing the supplies and wait

until someone could assist him, but that Blanchard continued throwing the

supplies onto the loading dock. Mr. Nguyen also stated that he called Brazos

after the incident, complaining of Blanchard’s ―rude and destructive behavior‖ and

asking that Blanchard not make any further deliveries to RD Shutters.

      Arterburn is Brazos’s human resources manager. He stated in his affidavit

that Blanchard’s employment with Brazos was terminated on June 17, 2008, after

RD Shutters complained about Blanchard’s conduct during the delivery. Schirico

is one of Brazos’s assistant general managers. Shirico stated by affidavit that he

presented Blanchard with a termination notice on June 17, 2008, and informed

Blanchard that he was being fired as a result of the customer complaint.

      Blanchard filed a written response to Brazos and TWC’s joint motion for

summary judgment, and he asserted objections to Brazos and TWC’s summary

judgment evidence and presented evidence contradicting much of Brazos and

TWC’s summary judgment evidence. In his affidavit, Blanchard stated that he

went into the RD Shutters office when he arrived for the June 17, 2008 delivery

but that no one was there. He averred that he then began unloading the wood

bundles by sliding them from the truck to the loading dock and that this was

permissible because he had done so during previous deliveries.          Blanchard

further stated that Mr. Nguyen approached him as he was unloading the last

bundle onto the dock and that Mr. Nguyen was upset with him for not asking RD


                                        3
Shutters workers to assist with the delivery. Blanchard said, however, that he

explained that there was no one in the office when he arrived, that he was not

rude or disrespectful to Mr. Nguyen, that he gave Mr. Nguyen the opportunity to

inspect the bundles, that Mr. Nguyen did so, and that Mr. Nguyen signed the

delivery invoice without indicating any damage to the product. Blanchard further

stated that he has a back problem and is physically unable to throw the wood

supplies onto a loading dock. Finally, Blanchard denied seeing or having any

interaction with Ms. Nguyen on June 17, 2008.

      Mark Gilbert testified in his deposition that he was Blanchard’s direct

supervisor at Brazos, that sliding the wood product from the truck onto the

loading dock is a permissible way to unload without damaging the product, and

that he recalled providing Blanchard with a hook to assist him in sliding the wood

product off the bed of a delivery truck.

                             III. Standard of Review

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).


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                                 IV. Discussion

      Blanchard contends in his first issue that the trial court erred by granting

summary judgment for Brazos and TWC because he presented evidence raising

genuine issues of material fact. Specifically, Blanchard argues that the trial court

did not apply the traditional summary judgment standard when granting Brazos

and TWC’s joint motion for summary judgment. In his second issue, Blanchard

contends that the trial court abused its discretion by overruling his objections to

Brazos and TWC’s summary judgment evidence.

A. Summary Judgment

      Brazos and TWC moved for summary judgment on the ground that

Blanchard’s employment with Brazos was terminated for misconduct as defined

by labor code section 201.012, meaning that Blanchard was not entitled to

unemployment benefits pursuant to labor code section 207.044(a). See Tex.

Lab. Code Ann. §§ 201.012(a), 207.044(a) (West 2006).

      Blanchard argues that under the traditional standard for reviewing

summary judgments—requiring the movant to establish entitlement to summary

judgment as a matter of law, taking as true the nonmovant’s evidence, and

indulging every inference in the nonmovant’s favor—he presented evidence

creating genuine issues of material fact. To resolve Blanchard’s first issue, it is

first necessary to review the nature of an appeal to district court following TWC’s

administrative decision.




                                         5
      Judicial review of a TWC determination is by ―trial de novo based on the

substantial evidence rule.‖ Tex. Lab. Code Ann. § 212.202(a) (West 2006). The

trial court conducts an evidentiary trial to ―determine whether the agency’s ruling

is free of the taint of any illegality and is reasonably supported by substantial

evidence.‖ Edwards v. Tex. Emp’t Comm’n, 936 S.W.2d 462, 465 (Tex. App.—

Fort Worth 1996, no writ). In making this determination, the issue is not whether

TWC made the correct decision; it is instead ―whether the evidence introduced

before the trial court shows facts in existence at the time of the [agency’s]

decision that reasonably support the decision,‖ that is, whether reasonable minds

could have reached the same conclusion.            Collingsworth Gen. Hosp. v.

Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998); see Edwards, 936 S.W.2d at 465;

see also Tex. Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d

446, 452 (Tex. 1984) (―The true test is not whether the agency reached the

correct conclusion, but whether some reasonable basis exists in the record for

the action taken by the agency.‖). Because substantial evidence is more than a

mere scintilla of evidence but less than a preponderance of evidence, the

evidence may preponderate against the TWC decision but still amount to

substantial evidence.   City of Houston v. Tippy, 991 S.W.2d 330, 334 (Tex.

App.—Houston [1st Dist.] 1999, no pet.); see also Tex. Health Facilities Comm’n,

665 S.W.2d at 452.       TWC remains the primary factfinding body, and the

reviewing court may not substitute its judgment for TWC’s on controverted fact




                                        6
issues; the question before the trial court is one of law. Edwards, 936 S.W.2d at

465.

       Trial courts may grant summary judgments in cases tried under the

substantial evidence rule. Cruz v. City of San Antonio, 424 S.W.2d 45, 47 (Tex.

Civ. App.—San Antonio 1968, no writ); see Jimison v. Tex. Workforce Comm’n,

No. 02-09-00127-CV, 2010 WL 851418, at *3 (Tex. App.—Fort Worth Mar. 11,

2010, no pet.) (mem. op.). ―Indeed, appeals under substantial evidence review

are uniquely suited to summary judgment because the only issue before the

court is a question of law.‖ Arrellano v. Tex. Emp’t Comm’n, 810 S.W.2d 767,

771 (Tex. App.—San Antonio 1991, writ denied). We review the trial court’s

judgment by comparing the TWC decision with the evidence presented to the trial

court and the governing law. Potts v. Tex. Emp’t Comm’n, 884 S.W.2d 879, 882

(Tex. App.—Dallas 1994, no writ).       We determine whether the summary

judgment evidence established as a matter of law that substantial evidence

existed to support the TWC decision. Id. at 883.

       Thus, the trial court in this case was required to accept as true all of

Blanchard’s evidence, indulge every reasonable inference and resolve any

doubts in his favor, and determine whether the summary judgment evidence

showed, as a matter of law, that facts in existence at the time of TWC’s decision

reasonably supported the decision—i.e., whether reasonable minds could have

reached the same conclusion. See Collingsworth Gen. Hosp., 988 S.W.2d at




                                       7
708; Edwards, 936 S.W.2d at 465; Jimison, 2010 WL 851418, at *3–4; see also

Mann Frankfort, 289 S.W.3d at 848; 20801, Inc., 249 S.W.3d at 399.

      Blanchard’s contention is essentially that the trial court must have applied

the wrong evidentiary standard because he presented evidence creating genuine

issues of material fact in response to Brazos and TWC’s summary judgment

evidence. But Blanchard misinterprets the question to be decided by the trial

court on summary judgment. Rather than determine whether Brazos and TWC

proved as a matter of law that Blanchard engaged in misconduct as defined by

the labor code or whether fact issues precluded summary judgment, the trial

court was required to determine whether Brazos and TWC proved as a matter of

law that substantial evidence supported TWC’s decision to deny him

unemployment benefits. See Collingsworth Gen. Hosp., 988 S.W.2d at 708; Tex.

Health Facilities Comm’n, 665 S.W.2d at 452; Edwards, 936 S.W.2d at 465;

Potts, 884 S.W.2d at 883. As stated above, summary judgment is appropriate if

the summary judgment evidence proves as a matter of law that substantial

evidence—i.e., more than a scintilla but less than a preponderance—supports

the TWC decision, even though the summary judgment evidence preponderates

against the TWC decision to deny benefits. See Tippy, 991 S.W.2d at 334; see

also Tex. Health Facilities Comm’n, 665 S.W.2d at 452. With these principles in

mind, we turn to the merits of the trial court’s grant of summary judgment against

Blanchard.




                                        8
      A person is ―disqualified for benefits if [he] was discharged for misconduct

connected with [his] last work.‖ Tex. Lab. Code Ann. § 207.044(a). Labor code

section 201.012(a) defines ―misconduct‖ as ―mismanagement of a position of

employment by action or inaction, neglect that jeopardizes the life or property of

another, intentional wrongdoing or malfeasance, intentional violation of a law, or

violation of a policy or rule adopted to ensure the orderly work and the safety of

employees.‖ Tex. Lab. Code Ann. § 201.012(a). Brazos and TWC argued to the

trial court that Blanchard’s conduct constituted mismanagement of his position of

employment. Mismanagement under section 201.012(a) requires intent ―or such

a degree of carelessness as to evidence a disregard of the consequences,

whether manifested through action or inaction.‖ Mercer v. Ross, 701 S.W.2d

830, 831 (Tex. 1986).     However, ―[m]ere failure to perform the tasks to the

satisfaction of the employer, without more, does not constitute misconduct which

disqualifies an employee from benefits.‖     Tex. Emp’t Comm’n v. Torres, 804

S.W.2d 213, 215–16 (Tex. App.—Corpus Christi 1991, no pet.).

      Brazos and TWC presented summary judgment evidence that Blanchard

delivered wood supplies to RD Shutters on June 17, 2008; that he did not ask for

assistance in the front office as he had done on prior deliveries; that he unloaded

the wood supplies himself by throwing them onto the loading dock; that Mr.

Nguyen asked Blanchard to stop throwing the supplies and wait until someone

could assist him; but that Blanchard continued throwing the supplies onto the

loading dock. There is also evidence that Blanchard’s employment with Brazos


                                        9
was terminated because Mr. Nguyen called Brazos after the incident, complained

of Blanchard’s ―rude and destructive behavior,‖ and asked that Blanchard not

make any further deliveries to RD Shutters.        Blanchard presented summary

judgment evidence contradicting almost all of these facts.

      If the issue were simply whether genuine issues of material fact precluded

summary judgment on the question of Blanchard’s alleged mismanagement of

his position of employment, the summary judgment should have been denied.

But the issue is instead whether the summary judgment evidence proved as a

matter of law that substantial evidence supported TWC’s decision to deny

Blanchard benefits because it found that he mismanaged his position of

employment. See Tex. Lab. Code Ann. § 201.012(a); Collingsworth Gen. Hosp.,

988 S.W.2d at 708; Tex. Health Facilities Comm’n, 665 S.W.2d at 452; Edwards,

936 S.W.2d at 465; Potts, 884 S.W.2d at 883. Answering solely that question of

law, we hold that the trial court did not err by concluding, as a matter of law, that

reasonable minds could have determined that Blanchard mismanaged his

position of employment. The evidence, although conflicting, constitutes more

than a scintilla of evidence that Blanchard acted with carelessness with sufficient

disregard of the consequences as opposed to the mere failure to perform a task

to Brazos’s satisfaction. See Mercer, 701 S.W.2d at 831; Torres, 804 S.W.2d at

215–16. We overrule Blanchard’s first issue.




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B. Evidentiary Rulings

         Blanchard contends in his second issue that the trial court abused its

discretion by overruling his objections to Brazos and TWC’s summary judgment

evidence. We need not address Blanchard’s evidentiary objections, however,

because we have not relied on the objected-to evidence in determining that the

trial court did not err by finding that substantial evidence supported the TWC’s

decision.1 See Tex. R. App. P. 47.1. We therefore overrule Blanchard’s second

issue.

                                  V. Conclusion

         Having overruled each of Blanchard’s issues, we affirm the trial court’s

judgment.




                                                   ANNE GARDNER
                                                   JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DAUPHINOT, J., filed a concurring opinion.

DELIVERED: October 27, 2011




         1
        Blanchard objected to evidence of the TWC appeal tribunal decision and
TWC final decision, Brazos employee conduct policies, the portion of Shirico’s
affidavit detailing the complaint he received from Ms. Nguyen, e-mails from Ms.
Nguyen to Shirico, and the portion of Ms. Nguyen’s affidavit detailing statements
made by RD Shutters employee Ana Saucedo.


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                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00419-CV


MICHAEL M. BLANCHARD                                               APPELLANT

                                       V.

BRAZOS FOREST PRODUCTS,                                            APPELLEES
L.P. AND TEXAS WORKFORCE
COMMISSION
                                   ------------

          FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

                                   ------------

                         CONCURRING OPINION
                                    ----------

      The majority correctly recites the standard of review appropriate for a

traditional summary judgment1 but then essentially holds that it is irrelevant

because there is no real appeal from the determination of the Texas Workforce

Commission (TWC), stating,


      1
       Majority op. at 4; see Tex. R. Civ. P. 166a(b)–(c); Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); 20801, Inc. v.
Parker, 249 S.W.3d 392, 399 (Tex. 2008).
      Rather than determine whether Brazos and TWC proved as a matter
      of law that Blanchard engaged in misconduct as defined by the labor
      code or whether fact issues precluded summary judgment, the trial
      court was required to determine whether Brazos and TWC proved as
      a matter of law that substantial evidence supported TWC’s decision
      to deny him unemployment benefits.2

      No matter that we must take the allegations of the nonmovant as true and

determine whether any issue of material fact exists in a true traditional summary

judgment review,3 if there was any evidence amounting to more than a scintilla

before the TWC that supports its decision, the entire appeal process is a sham

because as a matter of law the TWC cannot be reversed.4 Here, the nonmovant

showed substantial conflicting evidence. If we take it as true, summary judgment

is not proper.5 But, despite the standard of review to which we must give lip

service, all that conflicting evidence must be ignored in this case because, in

determining appeals from a TWC ruling, factual allegations of the nonmovant are




      2
       Majority op. at 8.
      3
       Tex. R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848.
      4
         See majority op. at 8; City of Houston v. Tippy, 991 S.W.2d 330, 334 (Tex.
App.—Houston [1st Dist.] 1999, no pet.); Edwards v. Tex. Emp’t Comm’n, 936
S.W.2d 462, 465 (Tex. App.—Fort Worth 1996, no writ); see also Tex. Health
Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452–53 (Tex.
1984) (noting that if there is substantial evidence, that is, more than a mere
scintilla, supporting the agency findings, the decision must be upheld even if the
evidence preponderates against it).
      5
       See Tex. R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848.


                                        2
irrelevant if there was any evidence amounting to more than a mere scintilla

before the TWC that supports its ruling.6

      If this is what the legislature intends, then the Supreme Court of Texas

should come up with a new standard of review to be applied to summary

judgment cases involving appeals from administrative decisions based on

substantial evidence, and that standard of review should make sense in light of

the law that we are obligated to follow. I would suggest that the standard first

look to whether there was substantial evidence to support the administrative

ruling. Then I would ask whether the nonmovant has produced evidence either

below or as newly discovered evidence to show as a matter of law that the

administrative ruling cannot stand or that reasonable persons could not disagree

that the veracity or reliability of the evidence supporting the administrative ruling

was so lacking that a reasonable person could not rely on the evidence below. If

there is a question regarding when the nonmovant became aware of this

evidence, it would go to the propriety of granting or denying the motion for

summary judgment. That is, the burden would be on the proponent of the newly

discovered evidence in the same manner as in a motion for new trial based on

newly discovered evidence.7



      6
       See majority op. at 7; Edwards, 936 S.W.2d at 465.
      7
     See Fantasy Ranch, Inc. v. City of Arlington, 193 S.W.3d 605, 615 (Tex.
App.—Fort Worth 2006, pet. denied).


                                            3
      The majority has correctly addressed the issues before us as the law now

stands. I respectfully ask the Supreme Court of Texas to reconsider the standard

of review for summary judgments in cases involving appeals from administrative

rulings based on substantial evidence.




                                                 LEE ANN DAUPHINOT
                                                 JUSTICE

DELIVERED: October 27, 2011




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