Opinion filed October 20, 2016




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-15-00123-CV
                                     __________

         LIBERTY INSURANCE CORPORATION, Appellant
                                          V.
         MARY ANN TARANGO, SURVIVING SPOUSE OF
           MANUEL TARANGO, DECEASED, Appellee

                     On Appeal from the 118th District Court
                                 Martin County, Texas
                            Trial Court Cause No. 6349


                      MEMORANDUM OPINION
      This is an appeal from the judicial review of an administrative decision by a
Texas Division of Workers’ Compensation Appeals Panel that affirmed the hearing
officer’s denial of workers’ compensation benefits to Mary Ann Tarango, the
surviving spouse of Manuel “Benny” Tarango, a deceased employee. After a bench
trial, the trial court entered judgment in which it reversed the appeals panel decision
and ordered that Mary Ann was the proper legal beneficiary of Benny and that she
was entitled to workers’ compensation death benefits. Because we hold that the trial
court improperly placed the burden of proof on Liberty Insurance Corporation to
prove that Mary Ann abandoned Benny, we reverse and remand.
      Benny sustained fatal injuries at work due to an explosion and fire. His
surviving spouse, Mary Ann, filed a claim for death benefits. Liberty disputed Mary
Ann’s claim. Liberty contended that Mary Ann was not the proper legal beneficiary
because she abandoned Benny for more than one year preceding his death. A
workers’ compensation hearing officer determined that Mary Ann was not the proper
legal beneficiary, and the appeals panel affirmed the hearing officer’s decision.
Mary Ann sought judicial review, and after a bench trial, the trial court entered
judgment in favor of Mary Ann.
      Liberty presents eight issues for our review. In its first issue, Liberty contends
that the trial court misapplied Rule 132.3 of the Texas Workers’ Compensation
Administrative Rules when it determined that Mary Ann was the proper legal
beneficiary of Benny. Liberty argues in its second issue that the trial court erred
when it placed the burden of proof on Liberty to prove abandonment when
Section 410.303 of the Texas Labor Code provides that the burden of proof is on the
party seeking judicial review of a decision of a Division of Workers’ Compensation
Appeals Panel. Liberty asserts in its third issue that the trial court erred when it
determined that abandonment was an affirmative defense that must be pleaded. In
its fourth and fifth issues, Liberty challenges the legal and factual sufficiency of the
evidence regarding the trial court’s finding that Mary Ann had good cause for her
abandonment of Benny. In its sixth and seventh issues, Liberty challenges the legal
and factual sufficiency of the evidence regarding the trial court’s finding that Mary
Ann did not abandon Benny for more than one year preceding Benny’s death. And,
in its eighth and final issue, Liberty argues that the trial court abused its discretion


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when it excluded the testimony of Florencia “Flo” Ortiz Stone and Elizabeth Perez
regarding Benny’s divorce and marriage.
      We will first address Liberty’s third issue in which it claims that the trial court
erred when it determined that abandonment is an affirmative defense that must be
pleaded. Mary Ann objected to Liberty asking any questions about or presenting
any evidence of the issue of abandonment because Liberty had not pleaded the issue
as an affirmative defense. Although the trial court found that abandonment was an
affirmative defense that should be specifically pleaded, the trial court also noted that
Mary Ann specifically addressed the issue of abandonment in her original petition.
Because the trial court found that Mary Ann anticipated the defense of abandonment,
it overruled Mary Ann’s objection and considered the issue of abandonment in its
determination of whether Mary Ann was the proper legal beneficiary. Ultimately,
the trial court found that Mary Ann did not abandon Benny or, if so, that she
abandoned him with good cause. Thus, while Liberty’s argument may have merit
based on our disposition of Liberty’s second issue that we discuss below, the issue
of abandonment was litigated by the parties and was decided by the trial court.
Therefore, at this juncture, the issue is moot. We overrule Liberty’s third issue.
      In Liberty’s second issue, it claims that the trial court improperly placed the
burden on Liberty to prove that Mary Ann abandoned Benny.                    We agree.
Section 410.303 of the Texas Labor Code provides that a party that seeks judicial
review of an administrative decision by the Texas Division of Workers’
Compensation has the burden of proof by a preponderance of the evidence on the
issue that the party is appealing. TEX. LAB. CODE ANN. § 410.303 (West 2015); see
also LAB. § 410.302(b) (“A trial under this subchapter is limited to issues decided
by the appeals panel and on which judicial review is sought. The pleadings must
specifically set forth the determinations of the appeals panel by which the party is
aggrieved.”); Morales v. Liberty Mut. Ins. Co., 241 S.W.3d 514, 516 (Tex. 2007)
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(“the appealing party bears the burden of proof by a preponderance of the
evidence”). Mary Ann argues that Rule 132.3 of the Texas Workers’ Compensation
Administrative Rules and Section 408.182 of the Labor Code place the burden of
proof of abandonment on the party asserting abandonment. Mary Ann further asserts
that, after she established a legal marriage, Liberty was required to establish that
Mary Ann had abandoned Benny and that only if Liberty presented clear evidence
of abandonment did the burden shift to Mary Ann to present evidence to rebut
Liberty’s evidence that she abandoned Benny. Mary Ann contends that the question
before the trial court was whether Mary Ann was the proper legal beneficiary, not
whether Mary Ann abandoned Benny.
      The trial court’s judgment provides that “[t]he issue decided at the
administrative level below and on which Judicial Review was sought by [Mary Ann]
herein is as follows: Is Mary Ann Tarango the proper legal beneficiary of the
deceased, Manuel Tarango, entitling her to death benefits?” Section 408.182 defines
“eligible spouse” as “the surviving spouse of a deceased employee unless the spouse
abandoned the employee for longer than the year immediately preceding the death
without good cause, as determined by the division.” LAB. § 408.182(f)(3). Although
Rule 132.3(b)(3) provides that “[t]he burden is on a person who opposes the claim
of a surviving spouse to prove the spouse abandoned the deceased employee,”
Section 410.303 expressly provides that it is the party who seeks judicial review who
has the burden to prove the issue. See 28 TEX. ADMIN. CODE § 132.3 (Tex. Dep’t of
Ins., Div. of Workers’ Comp.); LAB. § 410.303; Morales, 241 S.W.3d at 516. Here,
the hearing officer specifically found that Mary Ann abandoned the marriage for
more than one year immediately preceding Benny’s death, without good cause, and
that she was not an eligible beneficiary for death benefits. The appeals panel
affirmed the hearing officer’s decision.


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      As the trial court noted in its ruling on Mary Ann’s affirmative defense
objection, Mary Ann specifically challenged the issue of abandonment in her
original petition. In her original petition, she states that “[t]he adverse determination
that Mary Ann Tarango disputes is the erroneous finding that she abandoned the
Decedent for more than one year immediately preceding Decedent’s death without
good cause.” Thus, the finding that Mary Ann specifically challenged was the
finding that she abandoned Benny, and it was this issue that Mary Ann had the
burden to prove by a preponderance of the evidence. The issue of whether Mary
Ann was the proper legal beneficiary of Benny necessarily encompasses the issue of
whether she abandoned Benny without good cause. See LAB. § 408.182 (a surviving
spouse is an eligible spouse unless the spouse abandoned the employee).
      The trial court specifically found that the burden of proof on the issue of
abandonment was on Liberty. In addition, the trial court’s third conclusion of law
was as follows: “Liberty Insurance Corporation did not prove by a preponderance of
the evidence that Mary Ann Tarango abandoned her husband, Manuel “Benny”
Tarango, within the meaning of 28 Tex. Admin. Code, Rule 132.3.” Because the
burden of proof should have been placed on Mary Ann and not Liberty, the trial
court erred.
      We must next determine whether such error requires reversal. “No judgment
may be reversed on appeal . . . unless the court of appeals concludes that the error
complained of: (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.” TEX. R. APP. P. 44.1. Here, the trial court erred when it placed the
burden of proof on the wrong party, with the result that the trial court could not make
appropriate findings of facts and conclusions of law. The trial court’s findings and
conclusions were made based on the incorrect determination that Liberty had the
burden of proof. Furthermore, the trial court’s error affected the judgment because
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the trial court ruled in favor of Mary Ann based upon its determination that Liberty’s
evidence did not meet a burden of proof that it did not have. We cannot speculate
as to whether the trial court would have entered the same findings and conclusions,
and ultimately the same judgment, if the burden of proof had been properly placed
on Mary Ann. Therefore, we sustain Liberty’s second issue.
      Our disposition of this issue makes it unnecessary for us to review Liberty’s
other issues on appeal. See TEX. R. APP. P. 47.1. Although generally we would also
determine whether the evidence was legally sufficient to support the challenged
findings because a finding of legally insufficient evidence would require rendition
instead of remand, we cannot do so in this case because the party with the burden of
proof was not required to prove her case by a preponderance of the evidence.
      We reverse the judgment of the trial court and remand this cause to the trial
court for further proceedings not inconsistent with this opinion.




                                                     JIM R. WRIGHT
                                                     CHIEF JUSTICE


October 20, 2016
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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