Lechuga v. Texas Employers' Insurance Ass'n

791 S.W.2d 182, 1990 WL 51830
CourtCourt of Appeals of Texas
DecidedJune 26, 1990
Docket07-89-0243-CV
StatusPublished
Cited by17 cases

This text of 791 S.W.2d 182 (Lechuga v. Texas Employers' Insurance Ass'n) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lechuga v. Texas Employers' Insurance Ass'n, 791 S.W.2d 182, 1990 WL 51830 (Tex. Ct. App. 1990).

Opinions

BOYD, Justice.

Appellant Manuel Lechuga brings this appeal from a summary judgment in his workers’ compensation suit granted by the [183]*183140th District Court in Lubbock County, Texas, in favor of appellee Texas Employers’ Insurance Association. In one point, appellant argues the trial court erred in its decision to grant the motion for summary judgment. We affirm the trial court judgment.

In his petition, appellant alleged that on or about January 13, 1985, while working for Petersburgh (sic) Co-op Gin, appellant was taking samples from the presser when it shut down on him, crushing and severing his left arm and hand which resulted in his total incapacity. On February 8, 1988, the Industrial Accident Board (the Board), in its final award, found that appellant’s average weekly wage produced a compensation rate of $122.58 and ordered appellee to pay appellant that amount per week for 150 consecutive weeks for total loss of use of the hand. The Board received appellant’s Notice of Intention to Appeal the Award on February 16, 1988, and received appellee’s notice of such intention on February 26, 1988.

Appellant filed his Original Petition on March 11, 1988, to set aside the Board’s award. In this petition he alleged, inter alia, that his suit was filed within twenty (20) days from the service of appellant’s written notice of appeal pursuant to article 8307, section . 5 of the Texas Revised Civil Statutes Annotated (Vernon 1967). In its First Amended Original Answer, appellee alleged that appellant’s suit was not timely filed within twenty (20) days from the date appellant’s notice was served upon the Board thus depriving the trial court of jurisdiction to consider the suit. The answer was verified by the affidavit of appellee’s attorney which was based upon “information and belief.”

On January 13, 1989, appellee filed its “Motion for Summary Judgment Under First Amended Original Answer” arguing the trial court was without jurisdiction to consider the suit because appellant’s original petition was not timely filed. Attached to the motion, and incorporated in it by reference, were certified copies of appellant’s petition and of the administrative file of the Industrial Accident Board regarding appellant’s claim for workers’ compensation benefits. By amended order dated May 16, 1989, the trial court granted its summary judgment and dismissed the case with prejudice.

Under his point, appellant presents a two-pronged argument. First, he says that appellee failed to preserve the question whether his petition was timely filed because of the improper verification of appel-lee’s first amended original answer. Second, and in the alternative, if this court holds the question of timely filing was preserved, he argues that since his suit was filed within twenty days from the time that appellee filed its notice of intention to appeal, that sufficiently complies with the statutory requirements.

It is now axiomatic that a summary judgment is sustainable only if the movant has conclusively established that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law. Trial and appellate courts must resolve all doubts about the existence of a genuine issue as to a material fact against the movant. The evidence must be viewed in a light most favorable to the non-movant, conflicts in the evidence are ignored, and the evidence which tends to support the position of the non-movant is accepted as true. Great American R. Ins. Co. v. San Antonio Pl. Sup. Co., 391 S.W.2d 41, 47 (Tex.1965); Tex.R.Civ.P. 166a.

It is also axiomatic that in the absence of a properly verified denial, it is conclusively presumed that a suit such as this was filed in “legal time and manner.” Baca v. Transport Ins. Co., 538 S.W.2d 814, 815 (Tex.Civ.App.—El Paso 1976, writ ref’d n.r. e.); National Auto. & Cas. Ins. Co. v. Layman, 248 S.W.2d 993, 1000 (Tex.Civ.App.—Austin 1952, no writ); See also Tex.R.Civ.P. 93(13); Tex.Rev.Civ.Stat.Ann. art. 8307b (Vernon 1967).

Appellee’s verification consisted of an affidavit by its attorney which was “based on information and belief.” Generally, a verification upon information and belief is insufficient. Huddleston v. Western Nat. Bank, 577 S.W.2d 778, 781 (Tex.[184]*184Civ.App.—Amarillo 1979, writ ref’d n.r.e.). Indeed, Texas Rule of Civil Procedure 93(13)1, provides that only a denial of a notice of injury or that there was good cause for not filing a claim with the Board within the one year period provided by statute may be made on information and belief. Therefore, appellant concludes, the denial was improperly verified.

Pointing to the provision of Rule 93 that a verified pleading is not necessary to raise the issue of jurisdiction as to the timeliness of appellant’s suit where such lack of jurisdiction otherwise appears of record, appel-lee contends in the instant case, the truth of the matters asserted in its First Amended Original Answer appears of record. The basis of that contention is that a certified copy of the Industrial Accident Board’s entire file on appellant was attached to, and incorporated in, its motion for summary judgment. Appellee also attached a certified copy of appellant’s original petition to that instrument.

We must determine, then, if these documents were proper summary judgment evidence, and, if so, whether they show the trial court’s lack of jurisdiction of this suit. Rule 166a(e) provides:

Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.

Attached to the copy of the Board’s file was a sworn certification by the Secretary of the Board, Scott McAnally. Our Supreme Court has held that copies of documents which are attached to a properly prepared affidavit are sworn copies within the meaning of the rule. Republic Nat. Leasing Corp. v. Schindler, 717 S.W.2d 606, 607 (Tex.1986); Zarges v. Bevan, 652 S.W.2d 368, 369 (Tex.1983). The copy of appellant’s original petition was also certified by the District Clerk of Lubbock County. Therefore, both of these documents were proper summary judgment evidence. Since the Board’s file shows that appellant’s Notice of Intention to Appeal the Award was received on February 16, 1988, and the copy of his original petition was filed on March 11, 1988, the question as to the timeliness of the filing of appellant's petition appeared “of record,” and appel-lee’s pleading did not need to be verified to preserve that question.

Having made that decision, it now becomes necessary for us to decide if appellant correctly claims that he was entitled to use the date of appellee’s notice of intent, rather than the earlier date of his notice, in computing the twenty day time frame within which his petition must have been filed. Parenthetically, it is well established that both the giving of a proper notice of appeal and a timely filing of suit are necessary before a trial court acquires jurisdiction to determine a claimant’s appeal such as this.

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Lechuga v. Texas Employers' Insurance Ass'n
791 S.W.2d 182 (Court of Appeals of Texas, 1990)

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Bluebook (online)
791 S.W.2d 182, 1990 WL 51830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lechuga-v-texas-employers-insurance-assn-texapp-1990.