Jacqueline M Mouton v. CCMSI

Opinion issued June 20, 2023

In The

Court of Appeals

For The

First District of Texas

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NO. 01-22-00205-CV

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JACQUELINE M. MOUTON, Appellant

V.

HOUSTON INDEPENDENT SCHOOL DISTRICT AND

CANNON COCHRAN MANAGEMENT SERVICES, INC., Appellees

On Appeal from the 269th District Court

Harris County, Texas

Trial Court Case No. 2019-45412

MEMORANDUM OPINION

Appellee Houston Independent School District (“HISD”) employed appellant

Jacqueline M. Mouton as a school bus driver. While operating a school bus, Mouton

was injured in a collision with another motorist. HISD’s third-party benefits

administrator, appellee Cannon Cochran Management Services, Inc. (“CCMSI”),

paid Mouton temporary workers’ compensation disability benefits until she reached

Maximum Medical Improvement (“MMI”). She was then medically cleared to

return to work. When Mouton did not return, HISD terminated her employment.

Mouton, acting pro se, sued HISD and CCMSI for negligence. HISD filed a

plea to the jurisdiction and CCMSI filed special exceptions. The trial court granted

both and dismissed Mouton’s claims.

In two issues on appeal, Mouton contends that the trial court erred in granting

HISD’s plea to the jurisdiction and in dismissing her claims against CCMSI, after

she repled, following the granting CCMSI’s special exceptions.

We affirm.

Background

According to Mouton, she was driving an HISD school bus on January 31,

2018, when another motorist failed to stop at a traffic light and collided with her bus.

It is undisputed that Mouton suffered compensable injuries in the collision, namely,

strains in her knees and sprains in her shoulders and lower back. Mouton filed a

claim for temporary workers’ compensation disability benefits. CCMSI paid

Mouton benefits of $325.21 weekly until April 27, 2018.

On April 27, 2018, Mouton reached MMI and was medically cleared to return

to work. However, Mouton did not return. HISD directed Mouton to attend a

meeting on May 15, 2018 to discuss whether she had abandoned her job. After

Mouton did not attend the meeting, HISD terminated her employment.

Disputing that she had reached MMI, Mouton brought negligence claims

against HISD, CCMSI, and certain healthcare providers.1 In her Third Amended

Petition, presented in detail below, Mouton asserted that the “medical services, care,

treatment, and advice provided to [her] beginning on or about January 31, 2018, fell

below the standards of ordinary care and practice acceptable to and required of

occupational medical providers providing worker’s compensation services and their

physicians.” She sought damages of “over $1,000,000.00” “resulting from the

negligent health care, services and treatment provided by Defendants, their agents,

servants, and employees.”

HISD filed a plea to the jurisdiction, asserting that its governmental immunity

from suit deprived the trial court of subject matter jurisdiction over Mouton’s

negligence claim. HISD argued that its immunity was not waived under the Texas

Tort Claims Act (“TTCA”) because Mouton did not allege injuries caused by an

HISD employee’s negligent use or operation of a motor vehicle. Rather, it was

undisputed that the motorist who hit Mouton’s bus was not an HISD employee. The

1

Mouton sued Concentra Health Services, Inc. d/b/a Concentra Occupational Health

and Concentra Corporation (“Concentra”), Saanumi Adedayo, NP, and Sonya

Brock, MD. However, after Mouton failed to serve them with medical expert

reports, the trial court dismissed Mouton’s claims. Concentra, Adedayo, and Brock

are not parties to this appeal.

trial court granted HISD’s plea to the jurisdiction and dismissed Mouton’s claims

against it with prejudice.

Subsequently, CCMSI filed special exceptions. CCMSI asserted that Mouton,

in her live petition, i.e., her Third Amended Petition, did not allege any specific facts

against CCMSI and that it could not discern any cause of action against it.

After a hearing, the trial court sustained CCMSI’s Special Exceptions, ordered

Mouton to replead, and warned that a failure to cure the defects would result in the

dismissal of her claims against CCMSI.

Mouton filed a Fourth Amended Petition, discussed below, in which she

asserted claims against “HISD/CCMSI” for “Gross Negligence, Defamation of

character, Violations of Workers Compensation, and Malice as defined by the Civil

Practice & Remedies Code Sec.73.001 & 74.001.” She also alleged that CCMSI had

violated various provisions of the Texas Workers’ Compensation Act (“TWCA”)

and the Texas Insurance Code.

CCMSI filed a motion to dismiss Mouton’s claims on the ground that she had

failed to cure the defects in her pleading. After a hearing, the trial court concluded

that Mouton had failed to provide CCMSI with sufficient notice of her claims and

dismissed her claims against CCMSI.

Plea to the Jurisdiction

In her first issue, Mouton argues that the trial court erred in granting HISD’s

plea to the jurisdiction.

A. Standard of Review and Overarching Legal Principles

Under the common-law doctrine of sovereign immunity, the state cannot be

sued without its consent. City of Hous. v. Williams, 353 S.W.3d 128, 134 (Tex.

2011). “Governmental immunity operates like sovereign immunity to afford similar

protection to subdivisions of the State, including . . . school districts.” Harris Cnty.

v. Sykes, 136 S.W.3d 635, 638 (Tex. 2004).

“[G]overnmental immunity has two components: immunity from liability,

which bars enforcement of a judgment against a governmental entity, and immunity

from suit, which bars suit against the entity altogether.” Tooke v. City of Mexia, 197

S.W.3d 325, 332 (Tex. 2006). Governmental immunity from suit deprives a trial

court of subject-matter jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda,

133 S.W.3d 217, 225–26 (Tex. 2004).

Immunity from suit may be asserted through a plea to the jurisdiction. Alamo

Heights Indep. Sch. Dist. v. Clark, 544 S.W.3d 755, 770 (Tex. 2018). A

jurisdictional plea may challenge the pleadings, the existence of jurisdictional facts,

or both. Id.

When a plea to the jurisdiction challenges the allegations in the pleadings, we

determine whether the pleader has alleged facts that affirmatively demonstrate the

trial court’s jurisdiction. Id. We construe the pleadings liberally in favor of the

pleader, accept all factual allegations as true, and look to the pleader’s intent.

Heckman v. Williamson Cnty., 369 S.W.3d 137, 150 (Tex. 2012). If a plaintiff “fails

to plead facts that establish jurisdiction, but the petition does not affirmatively

demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency

and the plaintiff should be afforded the opportunity to amend.” Cnty. of Cameron v.

Brown, 80 S.W.3d 549, 555 (Tex. 2002).

On the other hand, if the pleadings affirmatively negate the existence of

jurisdiction, then a plea to the jurisdiction may be granted, and the claims dismissed,

without allowing the plaintiff an opportunity to amend. Id.

We review a trial court’s ruling on a plea to the jurisdiction de novo.

Chambers-Liberty Counties Navigation Dist. v. State, 575 S.W.3d 339, 345 (Tex.

2019). Our analysis includes questions of statutory construction, which we also

review de novo. Id.

B. Analysis

HISD argues that its entitlement to governmental immunity from suit deprived

the trial court of subject matter jurisdiction over Mouton’s negligence claims and

that Mouton failed to allege jurisdictional facts bringing her claims within the

TTCA’s limited waiver of immunity. See TEX. CIV. PRAC. & REM. CODE

§ 101.021(1).

HISD, as a political subdivision of this state, is generally immune from suit

and liability. Rose v. Houston Indep. Sch. Dist., No. 14-16-00687-CV, 2017 WL

4697889, at *2 (Tex. App.—Houston [14th Dist.] Oct. 19, 2017, no pet.) (mem. op.);

see TEX. CIV. PRAC. & REM. CODE § 101.001(3).

Under the TTCA, the legislature has provided a limited waiver of immunity

from suits2 against governmental units for property damage, personal injury, or death

“proximately caused by the wrongful act or omission or the negligence of an

employee acting within his scope of employment” if:

(A) the property damage, personal injury, or death arises from the

operation or use of a motor-driven vehicle . . . ; and

(B) the employee would be personally liable to the claimant

according to Texas law[.]

TEX. CIV. PRAC. & REM. CODE § 101.021(1). “Except as to motor vehicles, this

chapter does not apply to a school district . . . .” Id. § 101.051.

Mouton, as plaintiff, had the burden to allege facts affirmatively

demonstrating that the trial court had subject matter jurisdiction over her suit. See

Clark, 544 S.W.3d at 770. In her Third Amended Petition, Mouton sought:

2

The TTCA waives a governmental unit’s immunity from suit on all claims for which

it waives immunity from liability. See TEX. CIV. PRAC. & REM. CODE § 101.025;

City of Hous. v. Nicolai, 539 S.W.3d 378, 386 n.10 (Tex. App.—Houston [1st Dist.]

2017, pet. denied).

to recover damages she sustained and suffered resulting from the

negligent health care, services and treatment provided by Defendants,

their agents, servants, and employees. The medical services, care,

treatment, and advice provided to [Mouton] beginning on or about

January 31, 2018, fell below the standards of ordinary care and practice

acceptable to and required of occupational medical providers providing

worker’s compensation services and their physicians practicing under

the same ? [sic] or similar circumstances, and were a proximate cause

of the injuries and damages sustained by [Mouton].

After detailing her medical history, she asserted: “I cannot be at MMI yet.”

And she disputed that she was able to return to work.

Under “Liability of Defendants,” Mouton asserted:

Defendants were negligent in the care, services, and treatment

rendered . . . . The Defendants owed a duty to exercise reasonable care

in the diagnosis, evaluation, care, monitoring, and treatment of

[Mouton]. The Defendants breached that duty causing the devastating

and permanent harm to [Mouton]. [Certain healthcare providers]

breached the standard of care of worker’s compensation provider in the

negligent care, service, and treatment rendered to [Mouton] by not

properly diagnosing her injuries following her Motor Vehicle Accident,

by failing to treat her injuries and by failing to provide her with proper

care at any point during the time of her injury throughout her recovery

process. As a result, [Mouton] suffers from constant pain and untreated

injuries that are likely permanent now as a result of the negligence of

the Defendants.

Mouton’s pleading did not allege any damages or injury “caused by the

wrongful act or omission or the negligence of” an HISD employee and arising from

the use or operation of a motor vehicle. See TEX. CIV. PRAC. & REM. CODE

§ 101.021(1). Instead, Mouton pled that the other motorist hit her bus. Nevertheless,

Mouton maintains that HISD’s immunity was waived under section 101.021(1)

because her petition reflects that she was an HISD employee at the time of the

collision. We disagree.

It is the legislature’s prerogative to enact statutes, and it is the judiciary’s

responsibility to interpret and apply those statutes according to the plain language

used by the legislature. Molinet v. Kimbrell, 356 S.W.3d 407, 414 (Tex. 2011). We

may not rewrite statutes or second-guess the legislature’s balance of competing

policies. See Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127,

133 (Tex. 2019).

Consequently, our primary objective in construing a statute is to give effect to

the legislature’s intent. Tex. Lottery Comm’n v. First State Bank of DeQueen, 325

S.W.3d 628, 635 (Tex. 2010). We discern the legislature’s intent by relying on the

plain meaning of the statutory text; unless a different meaning is supplied by

legislative definition or is apparent from the context, or the plain meaning leads to

absurd results. Id. In conducting this analysis, we presume that the legislature

selected the statutory language with care and that every word or phrase was used

with a purpose in mind. Id.

Here, the plain meaning of the text in section 101.021(1) of the TTCA

provides for a waiver of immunity in suits against governmental units for damages

and injuries (1) “caused by the wrongful act or omission or the negligence of an

employee acting within his scope of employment,” (2) when the injury “arises from

the operation or use of a motor-driven vehicle” and (3) “the employee would be

personally liable.” See TEX. CIV. PRAC. & REM. CODE § 101.021(1) (emphasis

added); DeWitt v. Harris Cnty., 904 S.W.2d 650, 653 (Tex. 1995). There is no

language in section 101.021 evidencing a legislative intent to provide a waiver under

the circumstances that Mouton espouses.

Accordingly, we conclude that Mouton failed to plead facts that established

the trial court’s subject matter jurisdiction over her claims against HISD and, further,

that her pleadings affirmatively negate the existence of such jurisdiction. See Brown,

80 S.W.3d at 555. We therefore hold that the trial court did not err in granting

HISD’s plea to the jurisdiction and in dismissing Mouton’s claims against HISD

without affording her an opportunity to amend. See id.

We overrule Mouton’s first issue.3

3

Although Mouton asserts on appeal various constitutional violations and that HISD

retaliated against her by wrongfully terminating her employment, she did not assert

these claims in her Third Amended Petition. She included only a single bare

assertion at the end of her background facts that she was wrongfully terminated.

Accordingly, we do not address whether there is any related waiver of immunity.

See TEX. R. APP. P. 33.1; see also Mission Consol. Indep. Sch. Dist. v. Garcia, 372

S.W.3d 629, 635–36 (Tex. 2012); City of Hous. v. Johnson, 353 S.W.3d 499, 504

(Tex. App.—Houston [14th Dist.] 2011, pet. denied).

Special Exceptions and Dismissal after Repleading

In her second issue, Mouton contends that the trial court erred in dismissing

her claims against CCMSI, after she repled, following the granting of CCMSI’s

special exceptions.

Texas follows a fair notice standard of pleading, which looks to whether the

opposing party can ascertain from the pleadings the nature and basic issues of the

controversy and the type of evidence that might be relevant. Low v. Henry, 221

S.W.3d 609, 612 (Tex. 2007). Pleadings must provide the opposing party with

enough information to enable it to prepare a defense. In re Lipsky, 460 S.W.3d 579,

590 (Tex. 2015); see TEX. R. CIV. P. 45, 47. The purpose of a special exception is

to compel the clarification of the opposing party’s pleading if it is not sufficiently

specific or fails to plead a cause of action. Baylor Univ. v. Sonnichsen, 221 S.W.3d

632, 635 (Tex. 2007); see TEX. R. CIV. P. 91.

Generally, when a trial court sustains a defendant’s special exceptions, it must

give the plaintiff an opportunity to amend the petition. See Sonnichsen, 221 S.W.3d

at 635. If the plaintiff amends her petition but does not cure the defect, the trial court

may dismiss the case. Hamby v. State Farm Mut. Auto. Ins. Co., 137 S.W.3d 834,

836 (Tex. App.—Houston [1st Dist.] 2004, pet. denied).

When reviewing a trial court’s dismissal of a cause of action following the

sustaining of special exceptions, we review both the trial court’s decision to sustain

the special exceptions and its order of dismissal. Perry v. Cohen, 285 S.W.3d 137,

142 (Tex. App.—Austin 2009, pet. denied).

We review the trial court’s decision to sustain special exceptions for an abuse

of discretion. Id.; see Sonnichsen, 221 S.W.3d at 635. A trial court abuses its

discretion if it acts without reference to guiding rules or principles. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). We accept as

true all material factual allegations and all reasonable inferences from those

allegations. Sorokolit v. Rhodes, 889 S.W.2d 239, 240 (Tex. 1994). “The trial court

has broad discretion in granting special exceptions to order more definite pleadings

as a particular case may require.” Perry, 285 S.W.3d at 142.

“We review a trial court’s dismissal of a case upon special exceptions for

failure to state a cause of action as an issue of law, using a de novo standard of

review.” Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied); see Hamby, 137 S.W.3d at 836 (stating that

trial court’s legal conclusion as to whether petition adequately states cause of action

is subject to de novo review).

Here, Mouton initially, in her Third Amended Petition, asserted a negligence

claim globally against five defendants, including CCMSI. As noted above, her

petition states that she sued to recover damages “resulting from the negligent health

care, services and treatment provided by Defendants, their agents, servants, and

employees.” And she broadly complained about the “medical services” she

received. Because she stated her negligence claim globally and did not present any

underlying facts or allegations specific to CCMSI, the trial court did not err in

sustaining CCMSI’s special exceptions and ordering Mouton to replead. See In re

Lipsky, 460 S.W.3d at 590 (pleadings must provide defendant with enough

information to enable it to prepare defense).

In her Fourth Amended Petition, Mouton then alleged that “HISD/CCMSI,”

collectively, sent “fraudulent videos to Certified Network Doctors.” She further

asserted:

LIABILITY OF DEFENDANTS HISD/CCMSI IN VIOLATION

THIS WAS INTENTIONAL GROSS NEGLIGENCE, BAD FAITH,

WORKER’S COMPENSATION BREACH THE STANDARD OF

CARE ACT AFTER MY ON-THE-JOB ACCIDENT, AND

DEFAMATION OF CHARACTER.

. . . . HISD and CCMSI failed to acknowledge all my Injuries and the

claims adjuster Kayo McGann would not approve of me seeing any

doctor to treat my injuries. Even when I paid out of pocket for medical

treatment going to Emergency Room twice CCMSI refused me medical

treatment. Failing to require or enforce a policy requiring the exercise

of ordinary care, diagnose or treat all my Injuries. Knowing I was

injured they did not care. CCMSI owed a duty to approve m[y] medical

treatment for my on-the-job injury. CCMSI failed and refused to give

me benefits that am entitle[d] to. Wrongfully denying my claim after

all the medical evidence, and the correct video will show this.

Wrongfully terminates or reduces benefits, fails to adjust a worker’s

compensation claim in a manner contrary to license requirements of

Chapter 4101, Insurance Code, or the rules of the commissioner of

insurance. Misrepresents the reason for not paying benefits or

termination or reducing payment benefits, unreasonably disputes the

reasonableness and necessity of health care. CCMSI violated my rights

to medical benefits under Sec. 415.002, and Sec. 0035 [sic] denies

preauthorization in a manner that is not in accordance with rules

adopted by the commissioner under Section 413.014, and failed to pay

an order awarding benefits, failing to approve or give a referral to see

an Orthopedic Doctor to treat my injuries, controverts a claim if the

evidence clearly indicates liability[.]

Mouton’s combined allegations against “HISD/CCMSI” failed to meet the

fair notice standard because she did attribute any specific act or omission to CCMSI,

as a separate defendant. See Ford v. Performance Aircraft Servs., Inc., 178 S.W.3d

330, 335 (Tex. App.—Fort Worth 2005, pet. denied). It is undisputed that HISD and

CCMSI are separate entities.

With respect to Mouton’s allegations that CCMSI improperly refused to pay

certain workers’ compensation benefits, Mouton does not assert in her petition that

she exhausted her administrative remedies.

The TWCA4 “provides the exclusive procedures and remedies for claims

alleging that a workers’ compensation carrier has improperly investigated, handled,

or settled a workers’ claim for benefits.” In re Accident Fund Gen. Ins. Co., 543

S.W.3d 750, 752 (Tex. 2017) (internal quotations omitted). Allowing parties to

pursue remedies that circumvent the Division of Workers’ Compensation’s

exclusive jurisdiction would undermine the workers’ compensation system’s careful

benefits-determination and claims-resolution processes. Id. at 753.

4

See TEX. LAB. CODE §§ 401.001–419.007 (“Texas Workers’ Compensation Act”).

“When an agency has exclusive jurisdiction and the plaintiff has not exhausted

administrative remedies, the trial court lacks subject-matter jurisdiction and must

dismiss any claim within the agency’s exclusive jurisdiction.” Id. at 752. Whether

exclusive jurisdiction is vested in the Division is a question of law. Id. The supreme

court has held that such claims include, among others, claims of negligence, gross

negligence, fraud, and bad faith, when they arise out of the investigation, handling,

or settling of a claim for workers’ compensation benefits. In re Crawford & Co., 458

S.W.3d 920, 926 (Tex. 2015).

Here, because Mouton stated allegations arising out of CCMSI’s

investigation, handling, and settling of her claim for workers’ compensation

benefits, the TWCA provides the exclusive procedures and remedies for those

claims. See In re Accident Fund Gen. Ins. Co., 543 S.W.3d at 752. Thus, the trial

court lacked subject matter jurisdiction over her claims against CCMSI and was

required to dismiss them. See In re Crawford & Co., 458 S.W.3d at 928–29.

With respect to the statutory provisions Mouton cites, Chapter 4101 of the

Texas Insurance Code broadly governs insurance adjusters and provides for criminal

penalties and disciplinary action by the commissioner of insurance. TEX. INS. CODE

§§ 31.021, 4101.201, .203. Section 413.014 of the TWCA governs Medical Services

and Fees. See TEX. LAB. CODE § 413.014. Section 415.002 of the TWCA addresses

administrative violations and penalties assessed by the commissioner of workers’

compensation. See id. §§ 401.011, 415.002. None of these provide a private cause

of action. Thus, the trial court did not err in concluding that Mouton failed to present

a cognizable claim.

We conclude that Mouton’s Fourth Amended Petition does not meet the fair

notice standard because it does not state any facts particular to CCMSI that could

support liability against it and does not state a cognizable cause of action. We

therefore further hold that the trial court did not err in sustaining CCMSI’s special

exceptions and dismissing Mouton’s claims against CCMSI.

We also overrule Mouton’s second issue.

Conclusion

For all of the reasons above, and based on the record before us, we affirm the

trial court’s judgment in all things.

Terry Adams

Chief Justice

Panel consists of Chief Justice Adams and Justices Guerra and Farris.