Tex-Fin, Inc. and Texas Workforce Commission v. Gustavo E. Ducharne

Opinion

ACCEPTED 14-15-00267-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 9/25/2015 8:23:30 AM CHRISTOPHER PRINE CLERK

NO. 14-15-00267-CV

FILED IN 14th COURT OF APPEALS IN THE FOURTEENTH DISTRICT COURT OF APPEALS HOUSTON, TEXAS HOUSTON, TEXAS 9/25/2015 8:23:30 AM ___________________________________________________ CHRISTOPHER A. PRINE Clerk

TEX-FIN, INC., and TEXAS WORKFORCE COMMISSION

Appellants,

v.

GUSTAVO E. DUCHARNE

Appellee. ___________________________________________________

Appeal from the 129th Judicial District Court Harris County, Texas Trial Court Cause No. 2010-64089 ___________________________________________________

APPELLEE’S BRIEF

LAW OFFICE OF G. SCOTT FIDDLER, P.C.

G. Scott Fiddler State Bar No. 06957750 1004 Congress, 2nd Floor Houston, Texas 77002 Tel.: (713) 228-0070 Fax: (713) 228-0078

SEPTEMBER 24, 2015 ATTORNEY FOR APPELLEE

ORAL ARGUMENT REQUESTED RECORD REFERENCES

The record will be referred to as follows:

Clerk’s Record “CR. [Page #]”

Appendix “App. [Tab # CR. : Page #]”

No Reporter’s Record was requested

-ii- TABLE OF CONTENTS

Record References .................................................................................................... ii

Table of Contents ..................................................................................................... iii

Index of Authorities .................................................................................................. v

Statement Regarding Oral Argument ....................................................................... x

Statement of the Case ............................................................................................... x

Issues Presented ....................................................................................................... xi

I. Statement of Facts .......................................................................................... 1

II. Summary of Argument ................................................................................... 3

III. Argument ........................................................................................................ 4

A. Standard of Review – Trial de Novo, Applying the Substantial Evidence Rule ...................................................................................... 4 B. Texas Payday Act and Interpretation of Contracts .............................. 7 C. The TWC Did Not Apply the Correct Legal Standard to the Undisputed Facts .................................................................................. 8

IV. Trial Court’s Remand ................................................................................... 18

A. The Trial Court Was Within Its Power to Enter Judgment ................ 18 B. Because the Trial Court Reversed the TWC, the Trial Court was Required to Render Judgment in Ducharne’s Favor .......................... 21

V. Tex-Fin’s Objections .................................................................................... 23

A. References in Ducharne’s Affidavit to “Bonus/Commissions” Do Not Violate the Parol Evidence Rule ........................................................ 23 B. Ducharne’s Testimony Regarding the Amount Earned Does Not Violate the Parol Evidence Rule ........................................................ 24 C. Ducharne’s Testimony Regarding the Amount Earned Does Not Violate the Best Evidence Rule.......................................................... 25

-iii- D. Ducharne’s Testimony Regarding the Amount of Sales Is Relevant.............................................................................................. 26 E. Ducharne’s Testimony Regarding the Amount of Bonus/Commissions Earned Is Not an Inadmissible Legal or Factual Conclusion ............. 27 F. Ducharne’s Exhibit 1B Does Not Violate the Parol Evidence Rule .................................................................................................... 28 G. Ducharne’s Exhibit 1B Is Relevant .................................................... 28 H. Exhibit 1B Does Not Violate the Best Evidence Rule ....................... 29 I. Exhibit 1B Does Not Contain Inadmissible Hearsay ......................... 29 J. Exhibit 1B Is Not Inadmissible on the Issue of “Credibility” ............ 29

VI. Conclusion .................................................................................................... 30

Prayer ...................................................................................................................... 31

Certificate of Service .............................................................................................. 32

Certificate of Compliance ....................................................................................... 33

Appendix................................................................................................................. 34

-iv- INDEX OF AUTHORITIES

Cases

Allstate Ins. Co. v. D’Entremont, No. 11-98-00239-CV, 1999 WL 33748043 (Tex. App.—Eastland, Nov. 24, 1999, no pet. ).................................. 8, 14, 17

Anderson v. Snider, 808 S.W.2d 54 (Tex. 1991) .......................................................................... 27

Arrellano v. Tex. Emp't Comm’n, 810 S.W.2d 767 (Tex. App.—San Antonio 1991, writ denied) .............................................. 16

Bd. of Ins. Comm’rs v. Guardian Life Ins. Co. of Tex., 180 S.W.2d 906 (1944) ................................................................................ 18

BFI Waste Sys. of N. Am., Inc. v. Martinez Envt’l Grp., 93 S.W.3d 570 (Tex. App.—Austin 2002, pet. denied) ........................................................ 20

Bigham Auto. & Electric Co. v. Tex. Workforce Comm’n, No. 07-09-0149-CV, 2010 WL 4105661 (Tex. App.—Amarillo 2010, no pet.) ....................................................... 9, 10

City of Houston v. Tippy, 991 S.W.2d 330 (Tex. App.—Houston [1st Dist.] 1999, no pet.) ......................................... 5, 6

Collingsworth Gen. Hosp. v. Hunnicut, 988 S.W.2d 706 (Tex. 1998) .................................................................. 15, 16

David J. Sacks, P.C. v. Haden, 266 S.W.3d 447 (Tex. 2008) ........................................................................ 24

Elfer v. Tex. Workforce Comm’n, 169 F. App’x. 378 (5th Cir. 2006)........................................................... 13, 21 -v- Firemen’s & Policemen’s Civ. Serv. v. Brinkmeyer, 662 S.W.2d 953 (Tex. 1984) ....................................................................... 5, 9

Ford Motor Co. v. Butnaru, 157 S.W.3d 142 (Tex. App.—Austin 2005, no pet.) ............................................................... 20

Fujimoto v. Rio Grande Pickle Co., ...................................................................................... 414 F.2d 648 (5th Cir. 1969) ............................................... 8, 10, 13G.E. Am. v. Galveston Cent. Appraisal Dist., 979 S.W.2d 761 (Tex. App.—Houston [14th Dist.] 1998, no pet.) ............... 4, 5, 22, 23, 27, 28

Haggar Co. v. Rutkiewicz, 405 S.W.2d 462 (Tex. Civ. App.—Waco 1966, writ ref’d n.r.e.) ................................. 8, 10, 13

Hernandez v. Tex. Workforce Comm’n, 18 S.W.3d. 678 (Tex. App.—San Antonio 2000, no pet.) ........................................................ 6

Igal v. Brightstar Info Grp., Inc., 50 S.W.3d 78 (Tex. 2008) ...................................................................... 22, 23

Imperial Am. Resources Fund, Inc. v. R.R. Comm’n, 557 S.W.2d 280 (Tex. 1977) ........................................................................... 5

In re Brookshire Grocery Co., 250 S.W.3d 66 (Tex. 2008) .......................................................................... 19

Jackman v. Jackman, 533 S.W.2d 361 (Tex. Civ. App.—San Antonio 1975, no writ) ............................................. 26

Jones Bros. Dirt. & Paving Contractors, 92 S.W.3d 477 (Tex. 2002) .......................................................................... 20

Levelland Ind. Sch. Dist. v. Contreras, -vi- 865 S.W.2d 474 (Tex. App.—Amarillo 1993, writ denied) ...................................................... 5

Lohmuller v. Tex. Workforce Comm’n, No. 14-00-00008-CV, 2000 WL 1862824, (Tex. App.—Houston [14th Dist.] Dec. 21, 2000, no pet.) ......................................................... 13, 17, 21, 26, 28

Mercer v. Ross, 701 S.W.2d 830 (Tex. 1986) ................................................................. 5, 6, 13

MCI Telecomms. Corp. v. Tyler, 796 S.W.2d 772 (Tex. App.—Dallas 1990, writ denied) .......................................................... 7

Miller v. Riata Cadillac Co., 517 S.W.2d 773 (Tex. 1974) .............................................................. 8, 10, 13

Nuernberg v. Tex. Emp’t Comm’n, 858 S.W.2d 364 (Tex. 1993) ........................................................................... 5

Pipkin v. Kroger Tex., L.P., 383 S.W.3d 655 (Tex. App.—Houston [14th Dist.] 2012, pet. denied) .................................. 28

Robinson v. Reliable Life Ins. Co., 569 S.W.2d 28 (Tex. 1978) .......................................................................... 21

R&R Assocs., Inc. v. Visual Scene, Inc., 726 F.2d 36 (1st Cir. 1984) .......................................................................... 26

Sturm v. Muens, 224 S.W.3d 758 (Tex. App—Houston [14th Dist.] 2007, no pet.) ................................... 25, 28

Tex. Dep’t of Pub. Safety v. Axt, 292 S.W.3d 736 (Tex. App.—Fort Worth 2009, no pet. )..................................................... 8, 9 Tex. Dep’t of Pub. Safety v. Benoit, -vii- 994 S.W.2d 212 (Tex. App.—Corpus Christi 1999, pet. denied) ........................................... 19

Tex. Dep’t of Transp. v. Jauregui, 176 S.W.3d 846 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) .............................. 19, 20

Tex. Dep’t of Pub. Safety v. Lavender, 935 S.W.2d 925 (Tex. App.—Waco 1996, writ denied) ......................................................... 19

Tex. Dep’t of Pub. Safety v. Story, 115 S.W.3d 588 (Tex. App.—Corpus Christi 2003, no pet) ................................................... 19

Tex. Emp’t Comm’n v. Hays, 360 S.W.2d 525 (Tex. 1962) ........................................................................ 10

Tex. Emp’t Comm’n v. Torres, 804 S.W.2d 213 (Tex. App.—Corpus Christi 1991, no writ) .......................... 13, 17, 21, 27, 28

Trapp v. Shell Oil Co., 198 S.W.2d 424 (Tex. 1946) ..................................................................... 6, 17

White v. Bath, 825 S.W.2d 227 (Tex. App.—Houston [14th Dist.] 1992, writ denied) ................................. 25

Wilcox v. Marriott, 103 S.W.3d 469 (Tex. App.—San Antonio 2003, pet. denied) ......................................... 29, 30

-viii- Rules and Statutes

40 TAC § 821.26 .................................................................. 7, 10, 11, 12, 16, 24, 25

Restatement (Second) of Contracts § 214 (1981) ................................................... 25

TEX. GOV’T CODE § 311.011 ............................................................................ 18, 21

TEX. GOV’T CODE § 2001.174 ...................................................................... 9, 18, 21

TEX. LAB. CODE § 61.015 ............................................................................. 7, 11, 24

TEX. LAB. CODE § 212.202 ................................................................................. 4, 22

TEX. R. EVID. 801(e)(2)........................................................................................... 29

TEX. R. EVID. 803(6) ............................................................................................... 29

TEX. R. EVID. 1002 ........................................................................................... 25, 29

TEX. R. EVID. 1006 ................................................................................................. 28

-ix- STATEMENT REGARDING ORAL ARGUMENT

Appellee requests oral argument.

STATEMENT OF THE CASE

Appellee Gustavo E. Ducharne (“Ducharne”) filed his Plaintiff’s Petition for

Judicial Review on September 29, 2010, and his Plaintiff’s First Amended Petition

for Judicial Review on October 10, 2010. (CR. 5). Appellant Texas Workforce

Commission (“TWC”) filed its Original Answer of Defendant Texas Workforce

Commission on November 1, 2010. (CR. 31). Appellant Tex-Fin, Inc. (“Tex-Fin”)

filed its Answer and Counterclaim of Tex-Fin, Inc. on November 15, 2010.

(CR. 37).

The parties filed their respective cross motions for summary judgment, along

with responses to the same, between December 16, 2010, and February 18, 2011.

(CR. 42, 74, 117, 145, 176, 186). An oral hearing was conducted on the various

summary judgment motions on February 21, 2011. Subsequently, Tex-Fin and

Ducharne submitted their post-hearing briefs, along with responses to the same.

(CR. 191, 195, 202, 206).

-x- On January 25, 2015, Judge Michael Gomez denied the summary judgment

motions of Tex-Fin and the TWC and granted in part Ducharne’s summary

judgment motion. (CR. 211). In doing so, the trial court reversed and set aside the

TWC’s decision and ordered the case remanded to the TWC for further

proceedings to determine the amount of wages due to Ducharne. (CR. 211).

On April 1, 2015, the trial court entered an order denying Tex-Fin and the

TWC’s motions for new trial. (CR. 248).

On April 20, 2015, the trial court overruled Tex-Fin’s objections to

Ducharne’s summary judgment evidence. (CR. 258; App. 3:258).

ISSUES PRESENTED

1. Whether the TWC’s decision was supported by substantial evidence or whether the decision was made without regard to the law or the facts and was therefore unreasonable, arbitrary, or capricious, and not supported by substantial evidence.

2. Whether the trial court erred in remanding the proceeding to the TWC for a determination of the amount of commissions owed or whether the trial court was required to reverse and enter judgment.

3. Whether the trial court erred in overruling Tex-Fin’s objections to Ducharne’s summary judgment evidence.

-xi- I. STATEMENT OF FACTS

Ducharne began working for Tex-Fin in 2004 as a sales representative for

Latin America, selling parts for heat exchangers and air coolers in refineries and

petrochemical plants. (CR. 127). Ducharne initially worked on a salary. (CR. 127).

On June 11, 2008, Ducharne signed a written agreement (the “Contract”)

changing his compensation structure, effective January 2008, to an annual salary of

$75,400, plus a bonus (in effect a commission) of .5 percent on all Latin American

and international sales in which Ducharne participated. (CR. 127; CR. 130; App.

1:130). The Contract did not require Ducharne be employed the entire year to

receive the bonus/commission. (CR. 130; App. 1:130). The Contract was signed by

Ducharne and Sean Hall, Sales Manager for Tex-Fin. (CR. 130; App. 1:130). The

Contract was never modified or superseded. (CR. 127). Pursuant to the Contract,

Ducharne was paid a bonus/commission in 2008. (CR. 127).

On April 22, 2009, Tex-Fin terminated Ducharne. (CR. 127). At the time of

his termination, for 2009, Ducharne had generated $4,584,591.37 in sales, which

entitled him to a bonus/commission payment of $22,922.96. (CR. 127; C.R. 131).

On May 4, 2009, Ducharne sent Sean Hall an email requesting payment.

(CR. 127; CR. 132). Tex-Fin responded the same day stating in part:

Commissions: Commissions are calculated and paid in December and commissions are only paid on collected invoices. Commissions are not paid on outstanding invoices or pending orders and commissions will not be paid early. (CR. 128; CR. 133; App. 2:133). The email response did not say that any

bonus/commission was not owed if Ducharne only worked a partial year, but only

indicated it would not be paid prior to December. (CR. 133; App. 2:133).

On or about August 7, 2009, Ducharne filed a Texas Payday Act claim

(“Payday Claim”) against Tex-Fin with the TWC, which included a claim for

unpaid commissions. (CR. 61). Ducharne was not represented by an attorney. (CR.

128).

On January 21, 2010, the TWC dismissed Ducharne’s Payday Claim. (CR.

128; CR. 134).

On February 5, 2010, Ducharne appealed the decision to the TWC’s Wage

Claim Appeal Tribunal and, on April 6, 2010, a hearing was held on the claim.

(CR. 128). Tex-Fin was represented by an attorney. (CR. 128). Ducharne was not

represented by an attorney and required an interpreter/translator. (CR. 128).

On April 19, 2010, the TWC’s Wage Claim Appeal Tribunal affirmed the

January 21, 2010 decision to dismiss Ducharne’s Payday Claim. (CR. 128; CR.

135). Ducharne then filed an appeal to the TWC. (CR. 128).

-2- On September 23, 2010, the TWC issued a Findings and Decisions of

Commission Upon Review of Claims for Wages, affirming the decision of the

TWC’s Wage Claim Appeal Tribunal and adopting its findings of fact and

conclusions of law. (CR. 128; CR. 138). Commissioner Ronald G. Congleton

dissented from the decision. (CR. 138).

Ducharne timely filed a petition for judicial review on September 29, 2010,

pursuant to Texas Labor Code, section 61.062. (CR. 5).

II. SUMMARY OF ARGUMENT

The trial court was correct in reversing the TWC’s decision because the

TWC decision was made without regard to the law or the facts and was therefore

unreasonable, arbitrary, or capricious. Thus, the decision of the TWC was not

supported by substantial evidence.

The TWC decision was not made with regard to relevant statutory and

common law regarding agreements for the payments of commissions and the

interpretation of contracts. The Contract did not require Ducharne be employed at

the time the commission was calculated. The Contract was never superseded in

writing by another agreement requiring Ducharne be employed for a full fiscal

year.

-3- The Contract made the basis of Ducharne’s wage claim and the regulations

applicable to Texas Payday Act claims are dispositive of the claim as a matter of

law. The TWC’s failure to follow that law required the trial court to grant summary

judgment in Ducharne’s favor.

The trial court erred by remanding the claim to the TWC for further

proceedings regarding the amount of damages owed. The trial court had the

authority to enter judgment in Ducharne’s favor.

The trial court was correct in overruling Tex-Fin’s objections to Ducharne’s

summary judgment evidence.

III. ARGUMENT

A. Standard of Review – Trial de Novo, Applying the Substantial Evidence Rule

The standard of judicial review in an appeal from a TWC decision is by trial

de novo, applying the substantial evidence rule. TEX. LAB. CODE § 212.202(a).

(App. 3). Substantial evidence de novo review is a hybrid of the substantial

evidence and de novo review standards. G.E. Am. v. Galveston Cent. Appraisal

Dist., 979 S.W.2d 761, 764 (Tex. App.—Houston [14th Dist.] 1998, no pet.). Under

pure trial de novo review, the court conducts an independent fact-finding

proceeding, automatically vacating and substituting its decision for that of the

TWC. Id. Conversely, under pure substantial evidence review, the court looks only

-4- to the records before the agency to determine whether reasonable minds could not

have reached the conclusion reached by the record. Imperial Am. Resources Fund,

Inc. v. R.R. Comm’n, 557 S.W.2d 280, 285 (Tex. 1977).

Under the hybrid substantial evidence de novo review, the court may hear

any evidence in existence at the time of the administrative hearing, regardless of

whether it was introduced at the hearing, to determine whether substantial evidence

supports the agency’s decision. See Firemen’s & Policemen’s Civ. Serv. v.

Brinkmeyer, 662 S.W.2d 953, 955-56 (Tex. 1984); City of Houston v. Tippy, 991

S.W.2d 330, 333 (Tex. App.—Houston [1st Dist.] 1999, no pet.); G.E. Am., 979

S.W.2d at 764-65. Consequently, the reviewing court must look at the evidence

presented at trial, not the records created by the agency. Mercer v. Ross, 701

S.W.2d 830, 831 (Tex. 1986). In fact, the court is prohibited from reviewing the

agency record as a whole, and individual items from the record may only be

introduced independently and pursuant to the Texas Rules of Evidence. Nuernberg

v. Tex. Emp’t Comm’n, 858 S.W.2d 364, 365 (Tex. 1993). Furthermore, the findings

made by the agency are irrelevant and inadmissible in a hybrid substantial

evidence de novo review. Levelland Ind. Sch. Dist. v. Contreras, 865 S.W.2d 474,

476 (Tex. App.—Amarillo 1993, writ denied) (“If the fact findings of the [TWC]

were admissible proof of their own truth in a trial de novo, the substantial evidence

review would be meaningless . . . .”). -5- Substantial evidence supports the TWC’s decision only if reasonable minds

could have reached the same conclusion the TWC reached. Tippy, 991 S.W.2d at

334. If the evidence is such that reasonable minds could not have reached the

conclusion that the TWC must have reached to justify its action, the TWC’s order

must be set aside. Trapp v. Shell Oil Co., 198 S.W.2d 424, 441 (Tex. 1946)

(emphasis added).1 It is for the reviewing court to decide whether the evidence is

such that reasonable minds could not have reached the conclusion the agency must

have reached in order to justify its actions. Hernandez v. Tex. Workforce Comm’n,

18 S.W.3d. 678, 681 (Tex. App.—San Antonio 2000, no pet.). If the TWC’s

decision was made without regard to the law or the facts and was therefore

unreasonable, arbitrary, or capricious, it is not supported by substantial evidence.

Mercer, 701 S.W.2d at 831. Thus, if the TWC applied the wrong legal standard, or

failed to properly apply known facts, the reviewing court may overturn the

decision. Id.

1 Tex-Fin cites to Trapp v. Shell Oil Co. for the opposite proposition; a proposition which does not appear in Trapp. See Brief of Appellant Tex-Fin, Inc., p. 11. -6- B. Texas Payday Act and Interpretation of Contracts

Under the Texas Payday Act, commissions and bonuses are due according to

the terms of the agreement between the parties. TEX. LAB. CODE § 61.015(a)(1).

(App. 6). Commissions or bonuses are earned when the employee has met the

required conditions set forth in the agreement between the parties. 40 TAC

§ 821.26(a)(1). (App. 4). Any changes to a written agreement regarding

commissions or bonuses must be in writing. Id.

Absent an agreement to the contrary, an employer must pay a terminated

employee commissions/bonuses earned as of the time of termination. 40 TAC

§ 821.26(b). (App. 4). Commissions/bonuses due to a terminated employee after

separation are payable based on the terms specified in the agreement of the

contract between the parties. 40 TAC § 821.26(c). (App. 4). Changes to written

agreements under the Texas Payday Act must be in writing. 40 TAC

§ 821.26(a)(1). (App. 4). There is no such writing modifying the June 11, 2008

Contract signed by the parties. (CR. 127).

The interpretation of an unambiguous contract is an issue of law for the

court. MCI Telecomms. Corp. v. Tyler, 796 S.W.2d 772, 777 (Tex. App.—Dallas

1990, writ denied). An improper interpretation of the terms of an unambiguous

contract renders an agency decision unreasonable, arbitrary, and capricious and

-7- therefore not supported by substantial evidence. Allstate Ins. Co. v. D’Entremont,

No. 11-98-00239-CV, 1999 WL 33748043, at *2 (Tex. App.—Eastland, Nov. 24,

1999, no pet.) (not designated for publication).

Where an agreement regarding compensation does not specify an employee

is obligated to remain employed for a full fiscal year to be entitled to payment,

Texas law mandates employees be paid commissions/bonuses earned up to the date

of termination. See, e.g., Miller v. Riata Cadillac Co., 517 S.W.2d 773, 775 (Tex.

1974); Haggar Co. v. Rutkiewicz, 405 S.W.2d 462, 465 (Tex. Civ. App.—Waco

1966, writ ref’d n.r.e.); Fujimoto v. Rio Grande Pickle Co., 414 F.2d 648, 654 (5th

Cir. 1969) (applying Texas law).

C. The TWC Did Not Apply the Correct Legal Standard to the Undisputed Facts

Appellants spend the majority of their briefing emphasizing that the findings

of the TWC are presumptively valid and that Ducharne’s burden is “formidable.”2

For example, Tex-Fin cites Texas Department of Public Safety v. Axt for the

proposition that Ducharne’s burden to show the TWC’s decision was not supported

by substantial evidence is formidable.3 However, in Axt (which is not a Payday Act

or Texas Workforce Commission case) the “formidable” quotation is made in the

context of describing an evidentiary challenge to an agency decision. Tex. Dep’t of

2 See Brief of Appellant Tex-Fin, Inc., pp. 10-12. 3 See Brief of Appellant Tex-Fin, Inc., p. 11. -8- Pub. Safety v. Axt, 292 S.W.3d 736, 739 (Tex. App.—Fort Worth 2009, no pet.). In

the very same paragraph of the decision cited by Tex-Fin, the court in Axt cites to

the other part of the substantial evidence rule, which states that in conducting

judicial review of an agency decision a district court “shall reverse or remand the

case” for any of six discreet reasons. See id. (citing TEX. GOV’T CODE § 2001.174

(emphasis added)) (App. 5). Accordingly, if Ducharne demonstrates the TWC’s

decision was either in violation of a statutory provision (i.e., the Texas Labor Code

or the Texas Administrative Code), was affected by an error of law, was not

supported by substantial evidence, or was otherwise arbitrary or capricious, then

the trial court was required to reverse or remand. See TEX. GOV’T CODE

§ 2001.174. (App. 5).

Similarly, Tex-Fin cites to Bigham Automotive & Electric Company v. Texas

Workforce Commission, an unpublished case from the Amarillo Court of Appeals,

for the proposition Ducharne must conclusively negate all reasonable support for

the TWC’s decision on any possible ground.4 Bigham cites to the Texas Supreme

Court case of Brinkmeyer, but Brinkmeyer has no such holding. See Bigham, No.

07-09-0149-CV, 2010 WL 4105661, at *4; Brinkmeyer, 662 S.W.3d at 956.

4 See Brief of Appellant Tex-Fin, Inc., p. 12. -9- Bigham is an outlier, and, in any event, Bigham did not involve the TWC

misinterpreting an unambiguous contract or otherwise apply a wrong legal

standard and is thus distinguishable on these grounds.5

The TWC did not follow statutory, regulatory, or common law as it is

applied to the unambiguous language of the Contract. Ducharne and Tex-Fin

agreed in writing to the payment of a bonus/commission. (CR. 130; App. 1:130).

That written agreement does not require Ducharne to work an entire year to be

entitled to the bonus/commission, nor to still be employed to recover the

bonus/commission earned during the year. (CR. 130; App. 1:130). Therefore,

Ducharne met the required conditions in the written agreement between the parties.

40 TAC § 821.26(a)(1). As a result, Ducharne is owed payment for the

bonus/commission earned at the time of his termination. See Miller, 517 S.W.2d at

775; Haggar Co., 405 S.W.2d at 465; Fujimoto, 414 F.2d at 654. At the time he

was terminated, Ducharne had earned bonus/commissions in the amount of

$22,922.96. (CR. 127).

5 Similarly, Texas Employment Commission v. Hays, cited by the TWC, does not state Ducharne must conclusively negate “any possible basis” for upholding the TWC’s decision. See Brief of Appellant Tex-Fin, Inc., p. 11. Instead, Hays merely states if the administrative decision was correct, the fact that the administrative agency reached the correct decision via an incorrect route does not justify overturning the decision. See Tex. Emp’t Comm’n v. Hays, 360 S.W.2d 525, 527 (Tex. 1962). As demonstrated herein, the decision of the TWC was incorrect primarily as a result of an incorrect application of the law, not a weighing of testimony. -10- In its brief, the TWC attempts to make a distinction between the terms

“commission” and “bonus.”6 However, Ducharne uses both terms because the

terms are interchangeable and the statute uses both terms. TEX. LAB. CODE

§ 61.015 (“Payment of Commissions and Bonuses”) (App. 6); 40 TAC § 821.26

(“Commissions or Bonuses”) (App. 4). The TWC offers no argument or authority

for why the terms should be interpreted differently or, if they were, how it would

merit a different result. Additionally, Tex-Fin apparently saw no distinction

between the terms “bonus” and “commission” as the May 4, 2009 email sent to

Ducharne by Tex-Fin acknowledged Ducharne’s “commissions” would calculated

and paid in December. (CR. 133; App. 2:133).

There are no factual conflicts or ambiguities in the Contract, and neither

Tex-Fin nor the TWC have ever argued the terms of the Contract to be ambiguous.

Instead, Tex-Fin and the TWC have improperly placed the burden upon Ducharne

in contravention to Texas law. Specifically, the TWC found there was “no

evidence that the employer ever intended to pay the bonus based on a partial year

of work or to pay the bonus before the due date in December.” (CR. 137).

However, the regulation states, “[u]nless otherwise agreed, the employer shall pay,

after separation, commissions or bonuses earned as of the time of separation.” 40

TAC § 821.26(b) (emphasis added). (App. 4). Additionally, commissions/bonuses

6 See Brief of Appellant Texas Workforce Commission, p. 7. -11- due after termination are payable “based on the routine or practice specified in the

agreement when the employee was employed.” 40 TAC § 821.26(c) (emphasis

added) (App. 4).

Thus, the presumption is that the employee is entitled to all

bonuses/commissions earned at the time of termination unless the applicable

agreement provides otherwise. Accordingly, any subsequent affidavit testimony

offered by Tex-Fin does nothing to change the terms reflected in the Contract

itself. The routine or practice explicitly specified in the Contract was to pay an

employee .5% of total Latin American and International sales the employee

participates in. (CR. 130; App. 1:130). The Contract does not specify a routine or

practice of not paying for a partial year worked, or otherwise only paying if

employed in December. (CR. 130; App. 1:130).

The burden was on Tex-Fin to demonstrate the existence of a change in

writing to the Contract whereby Tex-Fin limited its agreement to only pay

commissions in the event Ducharne was still employed in December of any given

year. See 40 TAC § 821.26(a). (App. 4). Ducharne, Tex-Fin, and the TWC agree

there was no such separate agreement that altered the Contract. (CR. 127).7

It was not Ducharne’s burden to demonstrate the Contract was modified to entitle

7 See Brief of Appellant Texas Workforce Commission, p. 21 and Brief of Appellant Tex-Fin, Inc., p. 6. -12- him to a bonus/commission for a partial year of work because the Contract’s

unambiguous language already did so. Tex-Fin owes Ducharne his earned

commissions. See Miller, 517 S.W.2d at 775; Haggar Co., 405 S.W.2d at 465;

Fujimoto, 414 F.2d at 654.

A TWC decision may be reversed where the TWC applies the wrong legal

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

Comm’n, 169 F. App’x. 378, 380 (5th Cir. 2006) (applying Texas law). Here the

commission found “no evidence that the employer intended to pay the bonus based

on a partial year of work . . . .” (CR. 137). Accordingly, the TWC failed to apply

the law that governs the payment of commissions under the Texas Payday Act. The

Contract was in writing. The Contract did not require Ducharne remain employed

to collect his bonus/commissions. There was no written change to the Contract.

This was the legal standard that should have been applied, and because it was

based on undisputed facts, it mandated a decision in Ducharne’s favor. Because the

TWC applied the incorrect legal standard, its decision was not based on substantial

evidence. See, e.g., Tex. Emp’t Comm’n v. Torres, 804 S.W.2d 213, 216 (Tex.

App.—Corpus Christi 1991, no writ); Lohmuller v. Tex. Workforce Comm’n, 14-

00-00008-CV, 2000 WL 1862824, at *1 (Tex. App.—Houston [14th Dist.] Dec.

21, 2000, no pet.).

-13- The TWC overlooked the unambiguous and undisputed terms of the written

Contract. In such situations, the decision is not reasonably supported by substantial

evidence and must be overturned. Allstate Ins. Co. v. D’Entremont, No. 11-98-

00239-CV, 1999 WL 33748043, at *2 (Tex. App.—Eastland, Nov. 24, 1999, no

pet.) (not designated for publication) (“The TWC decision did not properly

calculate claimant’s compensation based upon the undisputed facts in accordance

with the unambiguous terms of the employment contract; consequently, the

decision is not reasonably supported by substantial evidence.”).

As Tex-Fin notes in its brief, on May 4, 2009—within two-weeks of

Ducharne’s termination—a manger of Tex-Fin admitted Ducharne was owed the

commissions, stating the commissions would not be paid until that December. In a

May 4, 2009 email, Trey Hall stated in part,

Commissions: Commissions are calculated and paid in December and commissions are only paid on collected invoices. Commissions are not paid on outstanding invoices or pending orders and commissions will not be paid early.

(CR. 133; App. 2:133). Notably, Tex-Fin’s email to Ducharne does not deny

payment of the commissions based on a partial year of work and acknowledges

payment would be due in December. (CR. 133; App. 2:133). In fact, it was not

until the hearing in front of the TWC that Tex-Fin first denied owing Ducharne the

commissions at all.

-14- Tex-Fin’s attempt to explain away the email is incredible. First, Tex-Fin

claims the admission is of no import because “post-termination correspondence . . .

is no evidence of an agreement contrary to the written salary package.”8 As shown

above, the Contract provided for a bonus “based on .5% of total Latin American,

.5% of International sales that [Ducharne] participate in.” (CR. 130; App. 1:130).

Ducharne’s claim for unpaid commissions is not contrary to the written salary

package, but follows it to the letter. Tex-Fin understood the same when it drafted

the May 4, 2009 email acknowledging the same.9

Second, Tex-Fin claims it does not matter that it now contests the same

commission it previously admitted owing because contradicting its own testimony

merely produces “conflicting testimony.”10 Collingsworth General Hospital v.

Hunnicut, cited by Tex-Fin for the proposition that “[e]ven where the evidence

conflicts, the trial court ‘may not set aside a TWC decision,’” does not say that,

and never mentions conflicting testimony. Collingsworth Gen. Hosp. v. Hunnicut,

988 S.W.2d 706, 708 (Tex. 1998). However, the Supreme Court in Collingsworth

does state that a court may set aside a TWC decision “if it finds that the TEC’s

decision was made without regard to the law or the facts and therefore was

8 See Brief of Appellant Tex-Fin, Inc., p. 15. 9 Tex-Fin’s argument that the email is not evidence is curious given that both Appellants claim the Sean Hall affidavit, which was drafted subsequent to Ducharne’s termination, is the only evidence supporting the TWC’s decision. 10 See Brief of Appellant Tex-Fin, Inc., pp. 15-16. -15- unreasonable, arbitrary, or capricious.” Id. Appellants cite no authority in support

of the contention that evidence, misinterpreted by an agency and applied to an

improper proposition of law, must be later ignored.

Tex-Fin also cites to Arrellano v. Tex. Emp’t Comm’n, 810 S.W.2d 767, 771

(Tex. App.—San Antonio 1991, writ denied). However, Arrellano involved

conflicting testimony offered by the employer and employee at the administrative

stage, not the application of improper statements of law to an unambiguous

contract. See id. Tex-Fin’s testimony contradicts its prior admission, the Contract

itself, and must be disregarded as a matter of law because the written Contract

controls. 40 TAC § 821.26(a)(1). (App. 4).

In effect, Tex-Fin is saying to the Court, “We know we admitted in writing

Ducharne was owed the commissions when he demanded payment, but you should

ignore that because we said something different when we went to court.” Tex-Fin

makes a mockery of the oath, in effect contending that as long as it is talking out of

both sides of its mouth the Court has to rule in its favor. However, under the

substantial evidence rule, the truth still matters.

The vast majority of Appellants’ briefing and case law is focused upon the

premise that a reviewing court may not substitute its judgment in place of the

administrative agency and reach a different decision based upon conflicting

testimony. However, as shown above, this is not a case involving “conflicting -16- testimony.” Instead, this case involves the TWC applying the wrong legal standard

to undisputed facts. To reach its decision, the TWC must have determined (i) the

written Contract explicitly required Ducharne to be employed at the time the

commissions were calculated or (ii) the agreement was later amended in writing to

do so. There is no evidence of either. For this reason alone the grant of summary

judgment should be affirmed.

Because the evidence is such that reasonable minds could not have reached

the conclusion that the TWC must have reached to justify its action, the TWC’s

order must be set aside. See, e.g., Trapp v. Shell Oil Co., 198 S.W.2d 424, 441 (Tex.

1946); Tex. Emp’t Comm’n v. Torres, 804 S.W.2d 213, 216 (Tex. App.—Corpus

Christi 1991, no writ) (affirming trial court’s reversal of TWC decision and

entering of judgment in favor of employee); Lohmuller v. Tex. Workforce Comm’n,

No. 14-00-00008-cv, 2000 WL 1862824, at *3 (Tex. App.—Houston [14th Dist.]

Dec. 21, 2000, no pet.) (TWC decision not supported by substantial evidence

where it was made without regard to the facts and was therefore unreasonable);

Allstate Ins. Co. v. D’Entremont, No. 11-98-00239-CV, 1999 WL 33748043, at *2

(Tex. App.—Eastland, Nov. 24, 1999, no pet.).

-17- IV. TRIAL COURT’S REMAND

A. The Trial Court Was Within Its Power to Enter Judgment

The Texas Government Code states, when reviewing an administrative

decision, a court “shall reverse or remand” the case if the court finds that the

decision was either:

(A) in violation of a constitutional or statutory provision; (B) in excess of the agency’s statutory authority; (C) made through unlawful procedure; (D) affected by other error of law; (E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or (F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

TEX. GOV’T CODE § 2001.174. (App. 5).

Thus, the Government Code authorizes the court to either reverse the

decision of the TWC or, alternatively, to remand to the TWC for further

proceedings. See id. Had the statute been written “reverse and remand,” then

remand would be required. However, the statute must be interpreted according to

its express terms. TEX GOV’T CODE § 311.011 (“Words and phrases shall be read in

context and construed according to the rules of grammar and common usage.”).

“Or” is given a disjunctive meaning of “either,” while “and” is a given a

-18- conjunctive meaning of “both”; they are not interchangeable. In re Brookshire

Grocery Co., 250 S.W.3d 66, 69 (Tex. 2008) (citing Bd. of Ins. Comm’rs v.

Guardian Life Ins. Co. of Tex., 180 S.W.2d 906, 908 (1944)).

Therefore, the district court has the power to reverse the hearing officer’s

decision and render judgment in favor of the plaintiff or remand it. See Tex. Dep’t.

of Pub. Safety v. Story, 115 S.W.3d 588, 593 (Tex. App.—Corpus Christi 2003, no

pet.) (“We interpret this provision to mean that the reviewing court may: (1)

reverse the ALJ’s decision and render judgment in favor of the party seeking

review . . . or (2) reverse the ALJ’s decision and remand the cause for further

proceedings”) (internal citations and quotes omitted); Tex. Dep’t of Pub. Safety v.

Benoit, 994 S.W.2d 212, 213 (Tex. App.—Corpus Christi 1999, pet. denied); Tex.

Dep’t of Pub. Safety v. Lavender, 935 S.W.2d 925, 927 (Tex. App.—Waco 1996,

writ denied). But see Tex. Dep’t of Transp. v. Jauregui, 176 S.W.3d 846, 851 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied).

As indicated by the cases cited above, there appears to be a split of authority

on the issue of whether a reviewing court may enter judgment. However, contrary

to the contention of Tex-Fin, it does not appear that the Texas Supreme Court has

squarely addressed the issue. Tex-Fin cites from the Texas Supreme Court’s

-19- decision in Jones Bros. Dirt. & Paving Contractors,11 but there, the issue decided

was whether the administrative law claim was the exclusive remedy available or

whether the party could also recover on separate breach of contract and declaratory

judgment claims. The Supreme Court determined the administrative law claim was

the exclusive remedy, then stated, without explanation or analysis, that the trial

court could only have affirmed or “reversed and remanded.” Jones Bros., 92

S.W.3d at 485. Because the Supreme Court found the administrative law judge had

not erred in its application of the law, there was no reason to address whether

reversal and entering judgment was proper. See id. In fact, the Houston First Court

of Appeals in addressing the issue cites only to the Jones Brothers appellate court

decision for the proposition, noting it was reversed on other grounds. See Jauregui,

176 S.W.3d at 851. Therefore, it appears there is a split in authority on the issue.

Tex-Fin also cites to Ford Motor Co. v. Butnaru, 157 S.W.3d 142, 149 (Tex.

App.—Austin 2005, no pet.) and BFI Waste Sys. of N. Am., Inc. v. Martinez Envt’l

Grp., 93 S.W.3d 570, 579 n.9 (Tex. App.—Austin 2002, pet. denied) for the

proposition that rendering judgment is an improper usurping of the TWC’s

authority. However, neither of these cases involved the Texas Labor Code or Texas

Payday Act. Multiple courts of appeal, including this one, have interpreted

statutory authority to mean they have the authority to reverse and render judgment

11 92 S.W.3d 477 (Tex. 2002). -20- in claims arising under the Texas Labor Code. See, e.g., Lohmuller v. Tex.

Workforce Comm’n, No. 14-00-00008-cv, 2000 WL 1862824, at *3 (Tex. App.—

Houston [14th Dist.] Dec. 21, 2000, no pet.) (“Accordingly, we reverse the

judgment of the trial court and we render judgment granting Lohmuller’s claim for

unemployment benefits.”); Tex. Emp’t Comm’n v. Torres, 804 S.W.2d 213, 216

(Tex. App.—Corpus Christi 1991, no writ) (affirming trial court’s reversal of

TWC’s decision and ordering compensation to employee); Elfer v. Tex. Workforce

Comm’n, 169 F. App’x. 378, 380 (5th Cir. 2006) (“Accordingly we REVERSE the

district court’s summary judgment upholding the agency’s decision and RENDER

judgment in Elfer’s favor.”) (applying Texas law).

B. Because the Trial Court Reversed the TWC, the Trial Court was Required to Render Judgment in Ducharne’s Favor

The ability for a reviewing court to render judgment is based on a clear

reading of the statute. The only way one could conclude a reviewing court does not

have the ability to render judgment is by reading an “and” into the statutory

language where an “or” already exists. See TEX. GOV’T CODE § 2001.174. (App. 5).

This is contrary to the rules of statutory construction. TEX GOV’T CODE § 311.011;

Robinson v. Reliable Life Ins. Co., 569 S.W.2d 28, 30 (Tex. 1978).

-21- Additional support for the trial court’s power to render judgment is found in

the rationale behind the Texas Payday Act, which is “designed to resolve claims

expeditiously and inexpensively.” Igal v. Brightstar Info Grp., Inc., 250 S.W.3d

78, 82 (Tex. 2008). Remanding this case to the TWC and thus requiring Ducharne

to go back through three more levels of hearings and additional years of waiting is

contrary to the purpose of the statute intended to achieve prompt, expeditious, and

inexpensive resolution. It has been six-and-a-half years since Ducharne was

terminated and five years since Ducharne filed his petition for review in the trial

court. Ducharne’s attorneys have incurred more in fees than Ducharne seeks in

relief on a statute in which attorneys’ fees are not recoverable.

In the course of the administrative process, the TWC hearing officer made a

determination about wages, albeit based on a wrong interpretation of the law. The

determination of the TWC was that Ducharne was owed nothing. At the summary

judgment stage, Ducharne proved-up the actual amount owed. Neither Tex-Fin nor

the TWC filed any evidence to dispute these amounts. The trial court’s de novo

standard of review placed the burden on the parties to present this Court with

evidence in existence at the time of the TWC’s hearing, not simply to rely on what

was before the hearing officer. TEX. LAB. CODE ANN. § 212.202(a) (App. 7); G.E.

Am., 979 S.W.2d at 764-65. Consequently, it was incumbent upon Tex-Fin and the

TWC to present the trial court with evidence of the amount owed if either disputed -22- Ducharne’s computation. Id. (“The trial court is to examine the evidence presented

before it, rather than the evidence presented to the administrative agency.”).

Appellants failed to do. The summary judgment record before the trial court, upon

which the trial court was asked to and was statutorily empowered to decide,

demonstrated the bonus/commissions in the amount of $22,922.96 to be

undisputed.

The trial court was able but failed to resolve the matter based upon the

summary judgment record before it. As Appellants recognize, wage cases are best

decided on summary judgment.12 As the Texas Supreme Court has previously

noted, wage claims are typically too small to justify litigation. Igal, 250 S.W.3d at

82. Such is the case here. Remanding the case to the TWC will send Ducharne

back to where he started six years ago. Ducharne requests the Court reverse the

trial court’s remand to the TWC and enter judgment in his favor for $22,922.96.

V. TEX-FIN’S OBJECTIONS

A. References in Ducharne’s Affidavit to “Bonus/Commissions” Do Not Violate the Parol Evidence Rule

Ducharne’s references to “bonus/commissions” do not violate the parol

evidence rule because Ducharne is not attempting to alter the terms of a written

contract. The parol evidence rule prohibits evidence of a prior or contemporaneous

12 See Brief of Appellant Texas Workforce Commission, p. 14; Brief of Appellant Tex-Fin, Inc., p. 12. -23- agreement that contradicts a written integrated one. David J. Sacks, P.C. v. Haden,

266 S.W.3d 447, 451 (Tex. 2008). As discussed above (and as Tex-Fin rightly

anticipates) the terms “bonus” and “commissions” are used interchangeably in the

statutes. TEX. LAB. CODE § 61.015 (App. 6); 40 TAC § 821.26(a)(1) (App. 4). Tex-

Fin has not shown how the result would be different—that is, how the agreement

would be altered—as a result of referring to the earned payments as being a bonus,

a commission, or a “bonus/commission.” Because the terms “bonus” and

“commission” are consistent with one another and do not vary or contradict the

agreement between Ducharne and Tex-Fin, the parol evidence rule is inapplicable.

Cf. Haden, 266 S.W.3d at 451.

Additionally, as noted above, Tex-Fin saw no distinction between the terms

“bonus” and “commission” as the May 4, 2009 email sent to Ducharne by Tex-Fin

acknowledged Ducharne’s “commissions” would be calculated and paid in

December. (C.R. 133; App. 2:133).

B. Ducharne’s Testimony Regarding the Amount Earned Does Not Violate the Parol Evidence Rule

Similarly, Ducharne’s testimony regarding the amount of sales and the

amount of the corresponding bonus/commissions owed does not violate the parol

evidence rule. The parol evidence rule applies only where evidence is offered for

-24- the purpose of enforcing an inconsistent agreement. Sturm v. Muens, 224 S.W.3d

758, 762 (Tex. App—Houston [14th Dist.] 2007, no pet.) (citing Restatement

(Second) of Contracts § 214 (1981)). Commissions are earned when the employee

has met the required conditions set forth in the agreement between the parties.

40 TAC § 821.26(a)(1). (App. 4). Any changes to a written agreement regarding

commissions must be in writing. Id. Absent an agreement to the contrary, an

employer must pay a terminated employee commissions earned as of the time of

termination. 40 TAC § 821.26(b). (App. 4). Ducharne is simply trying to enforce

the written Contract, not a separate or inconsistent one, and is offering evidence of

the amount of money he is owed. Ducharne’s testimony is entirely consistent with

the Contract and, thus, does not violate the parol evidence rule.

C. Ducharne’s Testimony Regarding the Amount Earned Does Not Violate the Best Evidence Rule

Ducharne’s testimony does not violate the so-called “best evidence rule”

because Ducharne is not testifying about the contents of a document, recording, or

photograph. See TEX. R. EVID. 1002. Therefore, the rule does not apply here. White

v. Bath, 825 S.W.2d 227, 231 (Tex. App.—Houston [14th Dist.] 1992, writ denied)

(“[O]nly when one seeks to prove the contents of a document [does] the best

evidence rule [apply]. When the document and its contents are only collaterally

related to the issues in the case, the best evidence rule does not apply”). Ducharne

-25- is testifying about sales he made for which he had personal knowledge. Texas

courts in similar situations have permitted testimony that a payment has been made

without the introduction of the bill or check given in payment. See Jackman v.

Jackman, 533 S.W.2d 361, 362 (Tex. Civ. App.—San Antonio 1975, no writ).

Similarly, a witness with knowledge may testify regarding the cost of items in lieu

of producing written records regarding the same. See R&R Assocs., Inc. v. Visual

Scene, Inc., 726 F.2d 36, 38 (1st Cir. 1984) (“No evidentiary rule . . . prohibits a

witness from testifying to a fact simply because the fact can be supported by

written documentation.”).

Ducharne’s testimony about the amount owed does not violate the best

evidence rule.

D. Ducharne’s Testimony Regarding the Amount of Sales Is Relevant

For the reasons outlined above, Ducharne’s testimony about the amount of

sales and the corresponding bonus/commissions due him is relevant because the

Court does have statutory authority to enter judgment for Ducharne. See, e.g.,

Lohmuller v. Tex. Workforce Comm’n, No. 14-00-00008-CV, 2000 WL 1862824, at

*3 (Tex. App.—Houston [14th Dist.] Dec. 21, 2000, no pet.) (“Accordingly, we

reverse the judgment of the trial court and we render judgment granting

-26- Lohmuller’s claim for unemployment benefits.”); Tex. Emp’t Comm’n v. Torres,

804 S.W.2d 213, 216 (Tex. App.—Corpus Christi 1991, no writ) (affirming trial

court’s reversal of TWC’s decision and ordering compensation to employee).

The amount of sales made and bonus/commissions earned was evidence in

existence at the time of the original administrative hearing, and thus may be

considered on review. See G.E. Am., 979 S.W.2d at 764.

E. Ducharne’s Testimony Regarding the Amount of Bonus/Commissions Earned Is Not an Inadmissible Legal or Factual Conclusion

Ducharne’s testimony regarding the amount of sales made and the

corresponding bonus/commissions owed is not inadmissible legal or factual

conclusions because the testimony is based on personal knowledge as to the

amount in sales and the percentage of bonus/commissions as stated in the Contract.

An improper legal conclusion is one that does not provide underlying facts to

support the conclusion. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991).

Here, Ducharne provided underlying facts based upon his personal knowledge and

applied the .05% bonus/commissions multiplier as stated in the Contract. In doing

so, Ducharne was able to calculate the amount owed. The facts provided by

Ducharne, namely, the amount of sales made and bonus/commissions earned,

-27- could have been rebutted by Tex-Fin. See Pipkin v. Kroger Tex., L.P., 383 S.W.3d

655, 670 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). Tex-Fin failed to do

so.

F. Ducharne’s Exhibit 1B Does Not Violate the Parol Evidence Rule

Summaries such as Exhibit 1B attached to Ducharne’s summary judgment

motion are admissible in certain circumstances. TEX. R. EVID. 1006. Exhibit 1B

does not violate the parol evidence rule because, as stated above, it is not being

offered to enforce an inconsistent agreement, but is instead an application of the

facts to the agreement entered into between the parties. Sturm, 224 S.W.3d at 762.

As discussed above, the Contract merely states payment will be made in December

of each year, never stating Ducharne must be employed at the time of payment.

G. Ducharne’s Exhibit 1B Is Relevant

As stated above, Exhibit 1B is relevant because the trial court was permitted

to consider all evidence in existence at the time of the original administrative

hearing. See G.E. Am., 979 S.W.2d at 764. In considering this evidence, the trial

court was required to reverse and enter judgment in Ducharne’s favor. See, e.g.,

Lohmuller, 2000 WL 1862824, at *3; Torres, 804 S.W.2d at 216.

-28- H. Exhibit 1B does not Violate the Best Evidence Rule

Exhibit 1B does not violate the “best evidence rule” because Ducharne is not

attempting to prove the contents of a document, recording, or photograph. Exhibit

1B simply demonstrates the amount Ducharne is owed in commissions. TEX. R.

EVID. 1002.

I. Exhibit 1B Does Not Contain Inadmissible Hearsay

Exhibit 1B is not inadmissible hearsay. The full portion of Ducharne’s

affidavit reads:

I have personal knowledge of these sales because I made them, have reviewed many of the invoices, confirmed the sales with the customer and that all the customers fully paid Tex-Fin by the end of June 2009.

(CR. 127). Accordingly, Exhibit 1B was based upon Ducharne’s personal

knowledge and not hearsay, namely, his experience in making the sales. Further,

even were Ducharne’s testimony made in reliance on invoices prepared by Tex-

Fin, his testimony does not constitute hearsay because any such invoices are

admissions of a party opponent and/or a business record. TEX. R. EVID. 801(e)(2),

803(6).

J. Exhibit 1B Is Not Inadmissible on the Issue of “Credibility”

Exhibit 1B is not inadmissible “on the basis of credibility.” “Credibility” is

not a basis for an objection to the admissibility of evidence under the Texas Rules

of Evidence. The intention of the principle stated in Wilcox v. Marriott, cited to by -29- Tex-Fin, is to preclude parties from obtaining summary judgment based on

evidence that is so conclusory, indefinite, and vague that it cannot be controverted.

See Wilcox v. Marriott, 103 S.W.3d 469, 474-75 (Tex. App.—San Antonio 2003,

pet. denied). The way Tex-Fin attempts to apply Wilcox suggests the affidavit of a

party or interested witness is subject to a significantly higher level of scrutiny than

that of any other witness, or that the Texas Rules of Evidence are applied

differently in such circumstances. That is simply not the case. Furthermore, the

record does not contain any facts cited by Appellants that would tend to discredit

or impeach Ducharne’s testimony. See id. at 475.

VI. CONCLUSION

The TWC’s decision was not supported by substantial evidence. First, the

TWC applied an incorrect legal standard in determining eligibility for commission

payments. Because Ducharne met the requirements of the written Contract (which

did not require he work the entire year and was not amended in writing), Ducharne

is entitled to commissions earned while employed. Second, the TWC failed to

follow the terms of the unambiguous Contract signed by the parties and the law

applicable to such claim.

-30- The trial court was correct in reversing the TWC decision. However, the trial

court was required to render judgment in Ducharne’s favor in the amount of

$22,922.96.

Tex-Fin’s objections were correctly overruled.

PRAYER

For the reasons stated above, Appellee, Gustavo E. Ducharne, requests that

the trial court’s judgment be affirmed in part regarding the Texas Workforce

Commission’s denial of Ducharne’s wage claim; that the trial court’s judgment

remanding to the Texas Workforce Commission be reversed; that judgment be

rendered in Ducharne’s favor in the amount of $22,022.96; that the trial court’s

overruling of Tex-Fin. Inc.’s objections be affirmed; and that Ducharne receive

such further relief to which he may be justly entitled.

-31- Respectfully submitted,

LAW OFFICE OF G. SCOTT FIDDLER, P.C.

/S/ G. SCOTT FIDDLER _________________________________ G. SCOTT FIDDLER SBOT # 06957750 scott@fiddlerlaw.com 1004 Congress, 2nd Floor Houston, Texas 77002 Tel: 713-228-0070 Fax: 713-228-0078

ATTORNEY FOR APPELLEE GUSTAVO E. DUCHARNE

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing document has been forwarded to counsel for Appellants by email, in accordance with the Texas Rules of Appellate Procedure on this the 24th day of September 2015, as follows:

Michael C. Falick, Esq. mfalick@swbell.net Rothfelder & Falick, L.L.P. 1201 Louisiana, Suite 550 Houston, Texas 77002

Anthony Aterno, Esq. Anthony.Aterno@texasattorneygeneral.gov Assistant Texas Attorney General Senior Attorney P.O. Box 12548 Austin, Texas 78711-2548 /S/ G. SCOTT FIDDLER ________________________ G. SCOTT FIDDLER -32- CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the word limitation of TEX. R. APP. P. 9.4(i)(2)(b) because it contains 6,798 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(1)

Dated this 24th day of September 2015.

/S/ G. SCOTT FIDDLER ________________________ G. SCOTT FIDDLER

-33-

Contract (CR.130).............................................................................................. Tab 1

May 4, 2009 Email (CR. 133) ........................................................................... Tab 2

Order Denying Objections MSJ Evidence (CR. 258) ........................................ Tab 3

40 TAC § 821.26 ............................................................................................... Tab 4

TEX. GOV’T CODE § 2001.174 ........................................................................... Tab 5

TEX. LAB. CODE § 61.015 .................................................................................. Tab 6

TEX. LAB. CODE § 212.202 ................................................................................ Tab 7

-34-

TAB 1 01/14/2011 08:22:01 AM 713-755-1451 Page 15/31

o o

6-11-2008

Tex-Fin would like to continue building our partnership together by.extending the following proposal to you effective.January .2008. listed below you will find the salary package including what Tex-Fin is offering on ' heath insurance and IRA investments: » Salary: .$75,400.00 • IRA of Max 3% 'matching from Tex-Fin = $2,262.00 (After lyr Employment) <* Insurance: 50% individual— $2,400.42 50% Tex-Fin =$2,400,'42 <• Total Maximum -Salary Package: 580,062.00 <• Total Fin-Tube sales responsible for $4 million @ 20% Margins

* Fin Tube Sales Bonus will be based on .5% of total Latin American. .5% .of International sales that.you participate in.

» ExampIeFin Tube Sales: $4 million's .5% =i$20,000.00 bascd on 20% margins.

<• Total sales for Air Coolers, Shell Tube, & AirCooler Replacement Tube Bundles $6 million @20% margin.

• Air Cooler, Shell & Tube, & Air Cooler Replacement Tube Bundles Sales Bonus will be based on ,5% of.total Latin American Sales. :5% of International sales.you participate.in.

— • Example Air 'Cooler, Shell & Tube, &onReplacement .$6 million x.5% $30,000.00 based Bundles 'Sales: 20% margins.

President/Accounting to make.flnal decisions on which jobs Tex-Fin ACCEPTS, imorder to ensure long-term success .&profltability, <*.340,000 a year expense account, must have travel summary with customers visited monthly *• Receive 8 Holidays, 2 floating Holidays, .5 Sick/Personal Days(Accmed by the month) » 2 "Weeks Vacation (January 2008)

Tommy .& I lookforward to working with.you in Hie future growth of Tex-Fin,

Sincerely,

&-11-2DO& A •SeanP..Hall OS./IA /o& Sales Manager

Exhibit 1A

Tab 1 130

TAB 2 01/14/2011 08:22:01 AM 713-755-1451 Page 18/31

/ o O / To: Gustavo Ducharne From: Trey Hall V. Date: Monday, May4,,'2D09 Subject : fax regarding pending Issues

Gustavo,

Sean Is unable to reply.to your Fax or Bny emails as he has .bean hospitalized do to a broken neck.

Utma taka a momentio address some of the Issues contained In yourfax. 1) Commissions; Commissions are calculated and paid In December and commissions are only paid on collected invoices. Commissions are not paid on outstanding Invoices or pending orders and commissions will not be paid early. .2) Vacation Pay: The 'Employee Hand Book clearly states In Section'303 that "Any employee dlschargerf-for causa will automatically be disqualified from receiving any paymentfor accrued vacatlontlme." I have attached e copy of the.aforementioned section of the Employee Hand for your revlsw. I have .also Included a copy of Section 701 from the Employee Hand Book which covers the grounds for which your employment was terminated, Insubordlnatlon.'The • pertinent sections are underlined. 3) Severance:There Is no severance owed to you, regardless of length of employment There Is provision for severance pay made in the Employee Hand Book and no special provision made for you In a contract for employment. ' 4) IRA Contributions: All contribution earned at tlwtlme of your termination will be paid -ASAP. 5) Personal Files: The laptop assigned to'V.pg was and Is TEXÿIN-propertyand all date on said laptapilsithef wperty dÿTEX-FlN, except where any local, State or Federal Law specifies , otherwise. As I understand It, you are Interested In getting personal Images contained on the hard drive. I do not see a problem with this, and will export any personal Images (l.e. pictures of vacation, persona! property etc,) to DVD and forward them to you at my earliest convenience,

In eonsidemlon-foryour service over the past years, Tommy has already Included your unused Vacation pay despite being under no legal or contractual requirement to do so.

Your final check is being sent to you via UPS, here Isthe tracking numbar: 1Z9R9970139638D146

'Tray Hall

Exhibit 1D

Tab 2 133

TAB 3 p* CAUSE NO. 2010-64089

GUSTAVO E. DUCHARNE § IN THE DISTRICT COURT OF § § vs. § HARRIS COUNTY, TEXAS § § TEX-FIN, INC. and § TEXAS WORKFORE COMM. § 129™ JUDICIAL DISTRICT

ORDER ON TEX-FIN. INC’S OBJECTIONS TO THE PLAINTIFF’S SUMMARY JUDGMENT EVIDENCE

After considering Defendant Tex-Fin, Inc.’s Objections to Plaintiffs summary judgment

evidence, the Court orders as follows:

1. The objection to all references in Gustavo Duchame’s affidavit to

“bonus/commissions” as violating the parol evidence rule is:

GRANTED: DENIED:

2. The objection to the statement in Gustavo Duchame’s affidavit that “At the time

of my termination, I had generated $4,584,591.37 in sales, which entitled me to a

bonus/commission of $22,922.96” as violating the parol evidence rule is:

GRANTED: DENIED: X 3. The objection to the statement in Gustavo Duchame’s affidavit that “At the time

of my termination, I had generated $4,584,591.37 in sales, which entitled me to a

bonus/commission of $22,922.96” as violating the best evidence rule is

GRANTED: DENIED: X RECORDER'S MEMORANDUM quality This instrument is of poor at the time of imaging

Order on Tex-Fin, Inc. 's Objections to Summary Judgment Evidence Page 1

Tab 3 258 4. The objection to the statement in Gustavo Duchame’s affidavit that “At the time

of my termination, I had generated $4,584,591.37 in sales, which entitled me to a

bonus/commission of $22,922.96” as irrelevant is:

GRANTED: DENIED: X 5. The objection to the statement in Gustavo Duchame’s affidavit that “At the time

of my termination, I had generated $4,584,591.37 in sales, which entitled me to a

bonus/commission of $22,922.96” as inadmissible legal conclusions is:

GRANTED: DENIED: £ 6. The objection to the statement in Gustavo Duchame’s affidavit that “At the time

of my termination, I had generated $4,584,591.37 in sales, which entitled me to a

bonus/commission of $22,922.96” as inadmissible factual conclusions is:

GRANTED: DENIED:

7. The objection to Gustavo Duchame’s ExhibitlB as violating the parol evidence

rule is:

GRANTED: DENIED:

8. The objection to Gustavo Duchame’s ExhibitlB as irrelevant is:

GRANTED: DENIED:

9. The objection to Gustavo Duchame’s ExhibitlB as violating the best evidence

rule is:

GRANTED: DENIED: X

Order on Tex-Fin, Inc. ‘s Objections to Summary Judgment Evidence Page 2

Tab 3 259 10. The objection to Gustavo Duchame’s ExhibitlB as inadmissible hearsay is:

GRANTED:

11. DENIED: > The objection to the Gustavo Duchame’s ExhibitlB on the basis of credibility is:

GRANTED: DENIED: V SIGNED on 2011.

JUDGE PRESIDING

rim,: APR 2 ex. - .

Order on Tex-Fin, Inc. 's Objections to Summary Judgment Evidence Page 3

Tab 3 260

TAB 4 § 821.26. Commissions or Bonuses, 40 TX ADC § 821.26

KeyCite Yellow Flag - Negative Treatment Proposed Regulation

Texas Administrative Code Title 40. Social Services and Assistance Part 20. Texas Workforce Commission Chapter 821. Texas Payday Rules Subchapter B. Payment of Wages

40 TAC § 821.26 Tex. Admin. Code tit. 40, § 821.26

§ 821.26. Commissions or Bonuses

Currentness

(a) For purposes of § 61.015 of the Act:

(1) Commissions or bonuses are earned when the employee has met all the required conditions set forth in the applicable agreement with the employer. To change an agreement, there must be prior notice as to the nature and effective date of the changes. Changes to written agreements shall be in writing.

(2) Commissions or bonuses are due to be paid, in a timely manner, according to the terms specified in an agreement between an employer and an employee. The terms should specify the time intervals or circumstances (or combinations thereof) that would cause commissions or bonuses to become payable, such as, but not limited to, weekly, monthly, quarterly, when sales transactions are recorded, upon buyer's remittance, etc.

(b) Unless otherwise agreed, the employer shall pay, after separation, commissions or bonuses earned as of the time of separation.

(c) Commissions or bonuses due after separation from employment are payable based on the routine or practice specified in the agreement when the employee was employed, or on any special agreement made between the employee and the employer upon separation.

(d) Draws against commissions or bonuses may be recovered from the current or any subsequent pay period until fully reconciled.

Credits Source: The provisions of this §821.26 adopted to be effective June 1, 1998, 23 TexReg 5732; amended to be effective September 20, 2010, 35 TexReg 8506.

Current through 40 Tex.Reg. No. 5986, dated September 4, 2015, as effective on or before September 11, 2015

© 2015 Thomson Reuters. No claim to original U.S. Government Works. Tab 4 1 § 821.26. Commissions or Bonuses, 40 TX ADC § 821.26

40 TAC § 821.26, 40 TX ADC § 821.26

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. Tab 4 2

TAB 5 § 2001.174. Review Under Substantial Evidence Rule or..., TX GOVT § 2001.174

Vernon's Texas Statutes and Codes Annotated Government Code (Refs & Annos) Title 10. General Government (Refs & Annos) Subtitle A. Administrative Procedure and Practice Chapter 2001. Administrative Procedure (Refs & Annos) Subchapter G. Contested Cases: Judicial Review

V.T.C.A., Government Code § 2001.174

§ 2001.174. Review Under Substantial Evidence Rule or Undefined Scope of Review

Currentness

If the law authorizes review of a decision in a contested case under the substantial evidence rule or if the law does not define the scope of judicial review, a court may not substitute its judgment for the judgment of the state agency on the weight of the evidence on questions committed to agency discretion but:

(1) may affirm the agency decision in whole or in part; and

(2) shall reverse or remand the case for further proceedings if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency's statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or

(F) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

Credits Added by Acts 1993, 73rd Leg., ch. 268, § 1, eff. Sept. 1, 1993.

Notes of Decisions (421)

© 2015 Thomson Reuters. No claim to original U.S. Government Works. Tab 5 1 § 2001.174. Review Under Substantial Evidence Rule or..., TX GOVT § 2001.174

V. T. C. A., Government Code § 2001.174, TX GOVT § 2001.174 Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. Tab 5 2

TAB 6 § 61.015. Payment of Commissions and Bonuses, TX LABOR § 61.015

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 2. Protection of Laborers Subtitle C. Wages Chapter 61. Payment of Wages (Refs & Annos) Subchapter B. Payment of Wages

V.T.C.A., Labor Code § 61.015

§ 61.015. Payment of Commissions and Bonuses

Currentness

(a) Wages paid on commission and bonuses are due according to the terms of:

(1) an agreement between the employee and employer; or

(2) an applicable collective bargaining agreement.

(b) An employer shall pay wages paid on commission and bonuses to an employee in a timely manner as required for the payment of other wages under this chapter.

Credits Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993.

V. T. C. A., Labor Code § 61.015, TX LABOR § 61.015 Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. Tab 6 1

TAB 7 § 212.202. Standard of Judicial Review; Exceptions Not Necessary, TX LABOR § 212.202

Vernon's Texas Statutes and Codes Annotated Labor Code (Refs & Annos) Title 4. Employment Services and Unemployment Subtitle A. Texas Unemployment Compensation Act Chapter 212. Dispute Resolution Subchapter E. Judicial Review of Commission Decision

V.T.C.A., Labor Code § 212.202

§ 212.202. Standard of Judicial Review; Exceptions Not Necessary

Effective: June 20, 2003 Currentness

(a) Judicial review under this subchapter is by trial de novo based on the substantial evidence rule.

(b) It is not necessary in a judicial proceeding under this subchapter to enter exceptions to the rulings of the commission.

Credits Acts 1993, 73rd Leg., ch. 269, § 1, eff. Sept. 1, 1993. Amended by Acts 2003, 78th Leg., ch. 1208, § 1, eff. June 20, 2003.

Notes of Decisions (66)

V. T. C. A., Labor Code § 212.202, TX LABOR § 212.202 Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document © 2015 Thomson Reuters. No claim to original U.S. Government Works.

© 2015 Thomson Reuters. No claim to original U.S. Government Works. Tab 7 1