Wilbert L. Clewis and Rose Mary Clewis v. Safeco Insurance Company of America

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 2-08-184-CV

WILBERT L. CLEWIS AND APPELLANTS
ROSE MARY CLEWIS

V.

SAFECO INSURANCE COMPANY APPELLEE
OF AMERICA
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FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION 1 ON REHEARING

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The trial court dismissed some of Appellants Wilbert L. Clewis and Rose

Mary Clewis’s claims and ordered that Wilbert take nothing on his remaining

claims. In four issues, Wilbert and Rose Mary argue that the trial court erred

by dismissing some of his claims, that the trial court erred by dismissing Wilbert

and Rose Mary’s claims without giving them notice under rule of civil procedure

1
… See Tex. R. App. P. 47.4.
165a, that the trial court erred by disregarding its own pretrial order, and that

Appellee Safeco Insurance Company of America’s motion to deem Wilbert a

vexatious litigant was untimely. Because we hold that the trial court did not err

and that Safeco’s motion was timely filed, we affirm.

Background

On June 5, 1998, Wilbert sustained a compensable injury while driving

a truck in the course of his employment. Safeco was his employer’s workers’

compensation insurance carrier. Wilbert has been initiating lawsuits against

Safeco over issues related to this injury since 1999.

This case arose out of Wilbert’s attempt to recover travel expenses

incurred in the course of his medical treatment. On January 24, 2006, the

Division of Workers’ Compensation of the Texas Department of Insurance (“the

DWC”) held a benefits contested case hearing 2 (“CCH”) to determine (1)

whether Wilbert was entitled to reimbursement of travel expenses for medical

treatment by Dr. James Elboar, and if so, what amount; and (2) whether the

DWC had jurisdiction to adjudicate the issue of Wilbert’s impairment rating, and

if so, what the impairment rating was. The hearing officer determined that the

DWC had no jurisdiction to adjudicate the impairment rating and that Safeco

2
… See Tex. Lab. Code Ann. § 410.151 (Vernon 2006).

2
was not liable to Wilbert for the travel expenses. After an appeals panel

affirmed the hearing officer’s determination, Wilbert sought judicial review in

the trial court.

Wilbert asserted a number of claims in the trial court, but on March 1,

2007, in response to Safeco’s plea to the jurisdiction, the trial court signed an

order dismissing all of the claims except (1) his claim for reimbursement of the

travel expenses and (2) his claim that the DWC had incorrectly decided that it

lacked jurisdiction to adjudicate his impairment rating. Trial was set for that

same date, but Wilbert failed to appear, and the trial court dismissed his claims

for want of prosecution. Upon Wilbert’s motion, however, the trial court

reinstated the case in June 2007.

Trial to the court was held on August 21, 2007. At trial, Wilbert sought

to litigate claims that had been dismissed in the March 1 order. When the trial

court informed him that it would not reconsider its ruling dismissing those

claims, Wilbert stated that “[i]f that can’t be heard, I’m not concerned with the

$600 travel reimbursement” and that he did not wish to prosecute his claim for

travel expenses or his claim on the jurisdictional issue. The trial court stated

that it would therefore order that Wilbert take nothing on his claims.

On September 14, 2007, before the trial court had signed a final

judgment in the case, Wilbert filed a fourth amended petition adding Rose Mary

3
as a party and seeking additional damages for loss of earning capacity and for

intentional infliction of emotional distress on Wilbert’s behalf. Safeco filed a

motion to strike this amended petition on the ground that it was an

impermissible post-trial amended pleading. No order on this motion appears in

the appellate record, but on December 5, 2007, the trial court signed a

judgment affirming the DWC’s determination and deeming Wilbert a vexatious

litigant as to the filing of any claims against Safeco based on the June 5, 1998

workers’ compensation injury.

Wilbert and Rose Mary each filed a notice of appeal, but because the trial

court’s judgment did not dispose of Rose Mary’s claims and was therefore not

a final judgment, we dismissed the appeal for want of jurisdiction.

Rose Mary then filed a notice of nonsuit of her claims, and the trial court

signed an order dismissing them. Wilbert subsequently filed a motion to nonsuit

the claims he had asserted in his fourth amended petition. This court then

granted Wilbert’s motion for rehearing, withdrew its dismissal opinion and

judgment, and set the case for briefing.

Analysis

In his first issue, Wilbert argues that the trial court erred by granting

Safeco’s plea to the jurisdiction and dismissing all of his claims except the claim

for reimbursement of the travel expenses and the claim that the DWC had

4
incorrectly decided that it lacked jurisdiction to adjudicate his impairment rating.

He contends that he presented six issues for determination to the hearing

officer and to the appeals panel and therefore, under section 410.302 of the

labor code, 3 he should have been allowed to pursue all of those issues in the

trial court. We review a trial court’s determination of a plea to the jurisdiction

under a de novo standard of review.4

Labor code section 410.301 provides for “[j]udicial review of a final

decision of the appeals panel regarding compensability or eligibility for or the

amount of income or death benefits.” 5 Wilbert argues that under the labor

code, judicial review is limited to issues presented to the appeals panel. But

section 410.302 limits the issues in judicial review by a trial court to “issues

decided by the appeals panel and on which judicial review is sought.” 6

In this case, the hearing officer at the CCH stated that he understood the

issues were “whether [Wilbert] is entitled to reimbursement of travel expenses

for medical treatment at the direction of Dr. James Elboar . . . and if so, what

3
… Id. § 410.302(b) (Vernon 2006).
4
… City of Argyle v. Pierce, 258 S.W.3d 674, 680 (Tex. App.—Fort
Worth 2008, pet. dism’d).
5
… Tex. Lab. Code Ann. § 410.301(a) (Vernon 2006).
6
… Id. § 410.302(b) (emphasis added).

5
amount” and “whether the Commission has the jurisdiction to adjudicate the

impairment rating and, if so, what is the impairment rating.” When the hearing

officer asked whether that characterization of the issues was also Wilbert’s

understanding of the issues, the ombudsman 7 assisting Wilbert answered in the

affirmative. The hearing officer’s written decision expressly stated that the

CCH was held to determine those two issues. The hearing officer concluded

that Wilbert was not entitled to the travel expenses and that the DWC did not

have jurisdiction to adjudicate the issue of his impairment rating. When Wilbert

appealed that decision to the appeals panel, the issues that the appeals panel

decided were the issues decided by the hearing officer at the CCH.8

Because the only issues decided by the appeals panel were the two issues

decided at the CCH, those were the only two issues for which judicial review

7
… See id. § 404.105 (stating that the department of insurance’s office
of injured employee counsel may, through its ombudsman program, appear
before the DWC on behalf of an injured employee during an administrative
dispute resolution process).
8
… See id. § 410.203; S. Ins. Co. v. Brewster, 249 S.W.3d 6, 16 (Tex.
App.— Houston [1st Dist.] 2007, pet. denied); Tex. Dep’t of Ins., Div. of
Workers’ Comp. v. Jackson, 225 S.W.3d 734, 736–37 (Tex. App.—Eastland
2007, no pet.) (stating that under the statute the hearing officer makes the
initial decision in a workers’ compensation dispute and that “all subsequent
proceedings are limited to a review of that decision”); St. Paul Ins. Co. v.
Mefford, 994 S.W.2d 715, 720 (Tex. App.—Dallas 1999, pet. denied).

6
could be sought.9 Accordingly, the trial court did not err by limiting its review

to the two issues decided by the appeals panel and dismissing the other issues

raised by Wilbert. We overrule Wilbert’s first issue.

In his second issue, Wilbert argues that rule 165a of the rules of civil

procedure prohibited the trial court from dismissing his suit without notice to

him and that the trial court abused its discretion by doing so. He contends that

after he filed his fourth amended petition on September 14, 2007, adding his

wife as a party, the trial court dismissed their suit on February 21, 2008,

without providing them notice as required under rule 165a. Specifically, he

states that when he “made mention of his fourth amended petition to [the trial

judge], he simply disposed of it and my wife was not even present.”

Rule 165a provides that “[a] case may be dismissed for want of

prosecution on failure of any party seeking affirmative relief to appear for any

hearing or trial of which the party had notice.” 10 But the final judgment in this

case did not result from the trial court dismissing Wilbert and Rose Mary’s suit

9
… See Tex. Lab. Code Ann. § 410.302; see also Krueger v. Atascosa
County, 155 S.W.3d 614, 619 (Tex. App.—San Antonio 2004, no pet.)
(stating that “[t]he language of § 410.302 must be given its plain meaning,
which is that judicial review is limited to issues ‘decided by’ the TWCC Appeals
Panel” and holding that appellant could not seek judicial review of an issue
when she did not raise the issue to appeals panel and panel’s decision
specifically stated it did not consider the issue).
10
… Tex. R. Civ. P. 165a.

7
for want of prosecution. The trial court signed a final judgment on December

5, 2007, after Wilbert had filed his amended petition. This judgment was a

ruling on the merits.

After the final judgment was entered, Wilbert filed a motion to reinstate,

which the trial court denied on February 21, 2008. At the hearing on the

motion, the trial court informed W ilbert that his motion applied to a case

dismissed for want of prosecution and that the court “didn’t dismiss [Wilbert’s]

case due to lack of prosecution.” Rather, “[t]he case has been adjudicated.”

The appellate record supports the trial court’s characterization of the

proceedings. The final judgment states that the court considered the pleadings,

evidence, and arguments of the parties and found that the DWC’s judgment

should be affirmed. The final judgment is on its face a determination on the

merits of Wilbert’s claims, not a dismissal under rule 165a. And the trial

court’s order of February 21 denied Wilbert’s motion to reinstate; it did not

dismiss any claims for want of prosecution.

In Wilbert’s reply brief, he argues that because the trial court dismissed

the fourth amended petition without notice to his wife, her due process rights

were violated. Rose Mary did not file a brief on appeal and did not sign the

8
brief filed by Wilbert. 11 Because Wilbert is not an attorney, he may not

represent Rose Mary on appeal. 12 We overrule Wilbert’s second issue.

In his third issue, Wilbert argues that the trial court erred by holding a

bench trial, disregarding its pretrial order under rule 166 of the rules of civil

procedure. The pretrial order to which Wilbert refers did not set the case for

a jury trial. It merely ordered the parties to notify the court coordinator if,

among other things, a jury panel of more than thirty-five would be needed. At

the trial before the court, when Wilbert asserted to the court that he had not

been given a jury trial even though he had called the court coordinator and

requested one, the trial court looked at its files and noted that Wilbert had not

paid a jury fee.13 The trial court further noted that Wilbert had not filed a

separate written demand for a jury trial apart from his prayer in his second

amended petition, which stated that “the Plaintiff respectfully prays that the

Defendant be cited to appear and answer this petition upon final jury trial.”

11
… See Tex. R. App. P. 9.1(b) (“A party not represented by counsel must
sign any document that the party files.”).
12
… Paselk v. Rabun, No. 06-08-00093-CV, 2009 WL 1658089, at *2
(Tex. App.—Texarkana June 16, 2009, no pet. h.) (“Although a layperson has
the right to represent themselves, a layperson does not have the right to
represent others.”); Jimison v. Mann, 957 S.W.2d 860, 861 (Tex.
App.—Amarillo 1997, no pet.).
13
… See Tex. Const. art. V, § 10.

9
 The Texas Constitution provides that “no jury shall be empaneled in any

civil case unless demanded by a party to the case, and a jury fee be paid by the

party demanding a jury.” 14 Rule 216 of the rules of civil procedure similarly

provides that in a civil suit, “[n]o jury trial shall be had . . . unless a written

request for a jury trial is filed with the clerk of the court a reasonable time

before the date set for trial . . . but not less than thirty days in advance” and

that the payment of the jury fee must also be made within that time limitation.15

Wilbert had not paid a jury fee at the time of trial, and, accordingly, the trial

court did not abuse its discretion by denying Wilbert’s request for a jury trial.

We overrule Wilbert’s third issue.

In his fourth issue, Wilbert argues that Safeco’s motion to deem him a

vexatious litigant was not timely filed under section 11.052 of the civil practice

and remedies code. He also argues that the trial court erred by granting the

motion because Safeco did not meet its burden to show that he had prosecuted

at least five actions arising out of the same matter.

Section 11.051 provides that a defendant may move for the court to

enter an order determining that the plaintiff is a vexatious litigant.16 This

14
… Id.
15
… Tex. R. Civ. P. 216.
16
… Tex. Civ. Prac. & Rem. Code Ann. § 11.051 (Vernon 2002).

10
motion must be filed on or before the ninetieth day after the date the defendant

files an original answer or makes a special appearance. 17

The appellate record does not contain Safeco’s original motion to have

Wilbert declared a vexatious litigant.18 But in his motion for new trial, Wilbert

objected to the trial court’s grant of Safeco’s motion on the ground that

Safeco’s July 10, 2007 motion was untimely because it was not filed within

ninety days of Safeco’s original answer. The July 10 motion was Safeco’s

amended motion. Wilbert never objected that Safeco’s original motion was

untimely filed, and he admits in his brief that Safeco’s original motion was filed

on July 6, 2006—the same day that Safeco filed its answer. The original

motion was therefore timely filed.19 An amended motion relates back to the

17
… Id.
18
… Tex. R. App. P. 33.1 (stating that party seeking appellate review
must show that the complaint was preserved); Shelton v. Standard Fire Ins.
Co., 816 S.W.2d 552, 553 (Tex. App.—Fort Worth 1991, no writ) (noting that
appellant has the burden to bring up record on appeal showing error that would
require reversal).
19
… See Tex. Civ. Prac. & Rem. Code Ann. § 11.051.

11
date of the original motion.20 Accordingly, Safeco timely filed its motion to

have Wilbert declared a vexatious litigant.

Wilbert relies on Dishner v. Huitt-Zollars, Inc. to argue that the amended

pleading was untimely.21 Disnher is distinguishable. In that case, the original

motion was withdrawn by the defendant, and a second motion was filed after

the deadline. 22 Here, nothing in the record indicates that Safeco ever withdrew

its original motion.

Wilbert next argues that Safeco failed to show that he has commenced,

prosecuted, or maintained at least five litigations that have been finally

determined adversely to him and that his claims have not been found to be

frivolous or groundless.

20
… See Ex parte Goad, 690 S.W.2d 894, 896 (Tex. 1985) (holding that
motion for contempt relates back to original filing unless it is wholly based upon
and grows out of a new, distinct or different transaction and occurrence); In re
Pepsico, Inc., 87 S.W.3d 787, 794 (Tex. App.—Texarkana 2002, no pet.)
(holding that amended motion to transfer venue relates back to original timely
filed motion); Indus. State Bank of Houston v. Eng’g Serv. & Equip., Inc., 612
S.W.2d 661, 663 (Tex. Civ. App.—Dallas 1981, no writ) (“[A]ny defective
pleading, when pointed out by motion or exception and cured by amendment,
relates back and is deemed to be filed as of the time the prior defective plea
was filed.”)
21
… 162 S.W.3d 370, 377 (Tex. App.—Dallas 2005, no pet.).
22
… Id.

12
 Before the trial court may enter an order that a plaintiff is a vexatious

litigant, the defendant must show that “there is not a reasonable probability

that the plaintiff will prevail in the litigation against the defendant.” 23 The

defendant must also make a showing that the plaintiff falls within one of three

categories, two of which Safeco asserted in the trial court. First, the defendant

may show that in the seven-year period preceding the date of the defendant’s

motion, the plaintiff “commenced, prosecuted, or maintained in propria

persona 24 at least five litigations other than in a small claims court that have

been . . . finally determined adversely to the plaintiff . . . [or] determined by a

trial or appellate court to be frivolous or groundless.2 5 Alternatively, the

defendant may show that after a litigation has finally been determined adversely

to the plaintiff, the plaintiff “repeatedly relitigates or attempts to relitigate, in

propria persona,” either (1) the validity of the determination against a defendant

who was the same defendant from the finally-determined litigation or (2) “the

cause of action, claim, controversy, or any of the issues of fact or law

23
… See Tex. Civ. Prac. & Rem. Code Ann. § 11.054 (Vernon 2002).
24
… See Spiller v. Spiller, 21 S.W.3d 451, 454 (Tex. App.—San Antonio
2000, no pet.) (“In propria persona is synonymous with pro se; it refers to a
situation in which a litigant represents himself or herself without the benefit of
a lawyer.”).
25
… Tex. Civ. Prac. & Rem. Code Ann. § 11.054(1).

13
determined or concluded by the final determination against the same defendant

as to whom the litigation was finally determined.” 26

The record contains documents demonstrating that in December 1999,

Wilbert sought judicial review of the appeals panel’s determination that he had

reached maximum medical improvement and its determination of his impairment

rating. The trial court affirmed the appeals panel’s decision, and this court

affirmed that judgment.27

The record further shows that Wilbert subsequently filed at least four

additional suits:

• a suit against Safeco for bad faith for denying his claims, in which the

trial court granted summary judgment for Safeco;

• a suit against Safeco for the unauthorized release of his confidential

medical information, in which the trial court granted summary judgment

for Safeco, and this court affirmed the trial court;28

• a suit for judicial review of the appeals panel’s decision that his

compensable injury did not include his pelvis or his right elbow, in which

26
… Id. § 11.054(2).
27
… Clewis v. Safeco Ins. Co. of Am., No. 02-00-00308-CV (Tex.
App.—Fort Worth Feb. 14, 2002, pet. denied) (not designated for publication).
28
… Clewis v. Hicks, No. 02-03-00014-CV, 2003 W L 22862630 (Tex.
App.—Fort Worth Dec. 4, 2003, pet. denied) (mem. op.).

14
 the trial court affirmed the appeals panel’s decision, and this court

dismissed Wilbert’s appeal for want of jurisdiction;29 and

• a bill of review alleging fraud against Safeco for releasing his medical

records, in which the trial court dismissed Wilbert’s claims after Safeco

filed a plea to the jurisdiction, and this court dismissed Wilbert’s appeal

because his notice of appeal was untimely. 30

Safeco thus demonstrated that in the seven years preceding its motion, Wilbert

prosecuted at least five suits pro se and that these suits were determined

adversely to him.

Wilbert argued in the trial court and argues on appeal that he succeeded

in one of his suits against Safeco. But the litigation he references, cause

number 096-183500-00, is in addition to the five unsuccessful suits mentioned

above. And furthermore, although he may have had partial success in the

administrative proceeding in that case, the record shows that he did not prevail

in his suit in the district court. In that case, the trial court granted summary

29
… Clewis v. Safeco Ins. Co. of Am., No. 02-05-00190-CV, 2005 WL
1654867 (Tex. App.—Fort Worth July 14, 2005, no pet.) (mem. op.).
30
… Clewis v. Safeco Ins. Co. of Am., No. 02-06-00258-CV, 2006 WL
2507324 (Tex. App.—Fort Worth Aug. 31, 2006, no pet.) (mem. op.).

15
judgment for Safeco and dismissed Wilbert’s claims against it. Accordingly, the

trial court did not abuse its discretion by granting Safeco’s motion.31

In his reply brief, Wilbert argues that Safeco did not show that he could

not prevail on the issue of “is the carrier liable for the benefits at issue in this

hearing,” and, accordingly, the trial court could not find him to be a vexatious

litigant.32 Wilbert did not make this argument in his original brief, and we are

therefore not required to consider it.33 Furthermore, Wilbert cites no authority

to support his argument, and he makes no argument as to how Safeco failed

to show that he had no reasonable probability of success on his claim when he

refused to move forward with it. Accordingly, we overrule this argument as

inadequately briefed.34

Wilbert also presents two objections to events that occurred in the trial

court. First, he notes that he objected in the trial court that the court was

refusing to follow section 410.302 of the labor code. Second, he objected to

31
… Douglas v. Am. Title Co., 196 S.W.3d 876, 879 (Tex.
App.—Houston [1st Dist.] 2006, no pet.) (reviewing trial court’s declaration of
a vexatious litigant under an abuse of discretion standard).
32
… See Tex. Civ. Prac. & Rem. Code Ann. § 11.054.
33
… See Tex. R. App. P. 38.3; In re M.D.H., 139 S.W.3d 315, 318–19
(Tex. App.—Fort Worth 2004, pet. denied) (declining to consider complaint
raised for the first time in reply brief).
34
… See Tex. R. App. P. 38.1(i).

16
the trial court’s overruling of his motion to reinstate. Wilbert makes no

argument as to why these objections entitle him to relief and cites no authority

in support of them. Accordingly, these arguments are overruled as inadequately

briefed.35 We overrule Wilbert’s fourth issue.

Wilbert filed in this court a plea to the jurisdiction to dismiss Safeco’s

claims as to his bilateral carpal tunnel syndrome impairment rating and income

benefits. From his arguments, it appears that with this motion, Wilbert

attempts to establish Safeco’s liability for income benefits relating to his carpal

tunnel syndrome. Safeco did not file a cross-appeal and does not assert any

claims for affirmative relief in this appeal. Accordingly, there is nothing for us

to dismiss. We therefore deny Wilbert’s motion, and, having overruled all of

Wilbert’s issues, affirm the trial court’s judgment.

LEE ANN DAUPHINOT
JUSTICE

PANEL: DAUPHINOT, GARDNER, and MCCOY, JJ.

DELIVERED: August 6, 2009

35
… See id.

17