No. 05-07-00592-CV

PANQUITA CARTER v. UNIVERSITY TEXAS SYSTEMS; from Dallas County; 5th district (05-07-00592-CV, ___
SW3d ___, 02‑25‑08)(
workers comp, compensable injury, carpal tunnel syndrome, frivolous appeal sanctions
denied, suits against universities)



On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-11522


Before Chief Justice Thomas and Justices Morris and Whittington
Opinion By Justice Whittington
Appellee Panquita Carter moved for partial summary judgment alleging appellant The University of Texas System
stipulated Carter suffered a compensable injury on November 22, 2004. The trial judge granted the motion. In one
issue, UTS alleges the trial judge erred in granting the summary judgment. Carter brings a motion for damages
pursuant to rule 45, Texas Rules of Appellate Procedure. We reverse the trial court's judgment and deny Carter's
motion. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion. See Tex. R.
App. P. 47.4.

Carter alleged she sustained a compensable injury, carpal tunnel syndrome, on November 24, 2004, in the
course and scope of her employment for The University of Texas Health System. UTS denied the claim. A benefit
review conference, contested case hearing, and appeal to the administrative appeals panel followed. Carter
prevailed in each proceeding. UTS filed an appeal in the trial court below.
A second set of administrative proceedings determined the dates of Carter's disability. The issues from this
second set of proceedings were added to the district court cause by UTS's amended pleading.
A third set of administrative proceedings, held after the appeal of the first proceeding had been filed in the trial
court, determined whether the injury extended beyond Carter's hand. Again, all administrative decisions were in
favor of Carter, and again UTS amended its petition in this case to complain of the orders.
n the third proceeding, in the decision and order entered after the contested case hearing, the hearing officer
made the following finding of fact: “The parties stipulated to the following facts: . . . The claimant sustained a
compensable injury on November 22, 2004.” Based on this finding of fact, Carter moved for summary judgment in
the trial court, alleging UTS stipulated she had a compensable injury on November 22, 2004, and further alleging
UTS was bound by this stipulation for all purposes in the trial court. Carter's motion for summary judgment relied
on section 410.166 of the Texas Labor Code, which provides: “A written stipulation or agreement of the parties
that is filed in the record or an oral stipulation or agreement of the parties that is preserved in the record is final
and binding.” Tex. Lab. Code Ann. § 410.166 (Vernon 2006). The trial judge granted Carter's motion.

Standard of Review
The standard for review of a traditional summary judgment is well-settled. We review a summary judgment de
novo to determine whether a party has established its right to summary judgment as a matter of law. See Dallas
Cent. Appraisal Dist. v. Cunningham, 161 S.W.3d 293, 295 (Tex. App.-Dallas 2005, no pet.). A party moving for a
traditional summary judgment must show no material fact issue exists and it is entitled to judgment as a matter of
law. Tex. R. Civ. P.166a(c); Cunningham, 161 S.W.3d at 295. When reviewing a summary judgment, we must
examine the entire record in the light most favorable to the nonmovant, indulging every reasonable inference and
resolving any doubts against the motion. City of Keller v. Wilson, 168 S.W.3d 802, 824-25 (Tex. 2005).

Although both parties presented summary judgment evidence on the issue whether UTS made the stipulation, the
real point of contention between them was whether by making the stipulation in the third hearing, UTS waived its
appeal of the first hearing. Carter urges the stipulation is final and binding for all purposes. She relies on Shepard
v. Ledford, 962 S.W.2d 28, 33 (Tex. 1998) (stipulation is “an agreement, admission, or concession made in a
judicial proceeding by the parties or their attorneys respecting some matter incident thereto”). The supreme court
in Shepard relied on its opinion in Hennigan v. I.P. Petroleum Co., Inc., 858 S.W.2d 371, 372 (Tex. 1993), stating
that a “true judicial admission is a formal waiver of proof usually found in . . . the stipulations of the parties.”
Shepard, 962 S.W.2d at 33.
Waiver, however, requires intent. See In re General Elec. Capital Corp., 203 S.W.3d 314, 316 (Tex. 2006) (waiver
requires intent, either intentional relinquishment of known right or intentional conduct inconsistent with claiming
that right). We have held “a court should not construe any action of a party to waive a right not plainly agreed to
be relinquished.” In re Sheets, 971 S.W.2d 745, 747 (Tex. App.-Dallas 1998, no pet.) (by agreeing to one order
referring discovery dispute to special master, party did not agree to refer all pretrial matters to special master). In
Sheets, we relied on our opinion in U.S. Fire Ins. Co. v. Carter, 468 S.W.2d 151 (Tex. Civ. App. - Dallas), writ ref'd
n.r.e. per curiam, 473 S.W.2d 2 (Tex. 1971). See Sheets, 971 S.W.2d at 747. In discussing the law regarding
stipulations, the U.S. Fire Insurance Co. court noted, “[b]eing a contract the stipulation must truly express the
intentions of the parties making the same.” U.S. Fire Ins. Co., 468 S.W.2d at 154. We continued, “[a] court will not
construe a stipulation so as to effect an admission of something intended to be controverted or so as to waive a
right not plainly agreed to be relinquished.” U.S. Fire Ins. Co., 468 S.W.2d at 154; see also Austin v. Austin, 603 S.
W.2d 204, 207 (Tex. 1980) (recognizing “rule that the agreement between the parties will not be given greater
effect than intended,” and noting “[a] stipulation will not be construed as an admission of a fact intended to be
Carter offered some evidence, in the form of the hearing officer's order from the third hearing, that the stipulation
was made, without reservation. UTS offered some evidence, through its adjuster's affidavit, that it disputed
Carter's injury at all stages of the administrative process. While both parties' evidence may be relevant to UTS's
intent to waive its appeal, the evidence does not establish Carter's right to judgment as a matter of law. See
Cunningham, 161 S.W.3d at 295 (party moving for traditional summary judgment must show it is entitled to
judgment as matter of law).

As attachments to their briefs on appeal, in support of and in opposition to Carter's rule 45 motion (in part based
upon UTS's failure to file a complete record), both parties have submitted evidence that was not presented to the
trial judge, including the transcript of the hearing of the third agency proceeding and an affidavit from the attorney
who represented UTS at the hearing. Because this evidence is not in our record on appeal, we cannot consider it
for purposes of UTS's appeal of the summary judgment. See Cantu v. Horany, 195 S.W.3d 867, 870 (Tex. App.-
Dallas 2006, no pet.) (appellate court cannot consider documents cited in party's brief and attached as
appendices if they are not formally included in record on appeal).

The trial judge should have the opportunity to consider all of the relevant evidence in determining whether UTS
waived its appeal. Because it was not presented to him, and because Carter did not establish her right to
judgment as a matter of law, we reverse the summary judgment and remand the issue to the trial court.
Carter also requests that this Court impose damages against UTS and its counsel for filing a frivolous appeal,
citing rule 45 of the Texas Rules of Appellate Procedure. Under rule 45, we may award “just damages” to a
prevailing party in an appeal if we determine it is frivolous after considering the record, briefs, or other papers
filed. See Solares v. Solares, 232 S.W.3d 873, 883 (Tex. App.-Dallas 2007, no pet.). Recovery is authorized if an
appeal is objectively frivolous and injures an appellee. Solares, 232 S.W.3d at 883. An appeal is frivolous if when
it is brought there were no reasonable grounds to believe the judgment would be reversed or when it is pursued in
bad faith. Solares, 232 S.W.3d at 883. We impose sanctions only under those circumstances we find truly
egregious. See Baker Hughes Oilfield Operations, Inc. v. Hennig Production Co., Inc., 164 S.W.3d 438, 448 (Tex.
App.-Houston [14th Dist.] 2005, no pet.) (where motion alleged appellant presented incomplete record on appeal,
raised critical issues for first time on appeal, and filed inadequate brief misstating record and making unsupported
accusations, record did not evidence such egregious circumstances as to warrant sanctions). On review of the
record and briefs, and in light of our disposition of UTS's issue on appeal, we decline to find UTS's appeal
frivolous. See also In re A.W.P., 200 S.W.3d 242, 246 (Tex. App.-Dallas 2006, no pet.) (failure to present
complete record on appeal itself does not render appeal frivolous, and we could not conclude appeal was
otherwise frivolous).
We deny Carter's motion and reverse the judgment of the trial court.
                                                     MARK WHITTINGTON


File Date[02/25/2008]
File Name[070592F]
File Locator[02/25/2008-070592F]