AFFIRM; Opinion Filed June 13, 2013. 

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In The Court of Appeals Fifth District of Texas at Dallas No. 05
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- 00263
- CV JMJ ACQUISIT I O NS MANAGEMENT, LLC , Appellant V. TERRY L. PETERSON AN D TEXAS WORKFORCE COM M ISSION , Appellees On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC
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- 02746
- D OPINION Before Justices Francis, Lang, and Evans Opinion by Justice Evans JMJ Acquisitions Management, LLC appe als from the trial court’s summary judgment affirming a wage award made by the Texas Workforce Commission to Terry L. Peterson under Chapter 61 of the Texas L abor Code . JMJ brings three issues generally contending the trial court erred in affirming the aw ard because the competent summary judgment evidence showed the
T WC lacked jurisdiction over a portion of Peterson’ s wage claim and the amount awarded was incorrect. Because we conclude the TWC had jurisdiction over Peterson’s entire claim and the award wa s supported by substantial evidence, we affirm the trial court’s judgment. BACKGROUND Terry L. Peterson was an employee of JMJ Acquisitions Management, LLC

. During the course of Peterson’s employment, JMJ began to suffer financial difficulties and Peterson agreed to reduce his salary from $150,000 per year to $100,000 per year beginning on November 1,– 2

– 2008. Peterson received the reduced salary until February 2009. At that point, Peterson contends , he was told by Timothy Barton at JMJ that the comp any could not afford to pay him his regularly scheduled salary , but wanted him to continue working and be paid at a later date. Beginning in February 2009 , Peterson wor ked without receiving any wages , although he

was reimbursed for out

- of

- pocket expenses that related to company business. According to
Peterson , Barton promised him he would receive all of his back wages on September 25

. Peterson did not receive any payment on that date and, on October 2, he resigned from the
company . On November 18, 2009, Peterson filed a wage claim with the Texas Workforce Commission stating he was owed wages for the full time period that he did not receive his salary. The TWC agreed and awarded P eterson $66,000 in unpaid wages

. JMJ brought thi s suit for judicial review of the decision. In its petition, JMJ asserted that the TWC had exceeded its statutory authority by awarding Peterson wages that were owed more than 180 days before he filed his wage claim. The TWC filed a motion for summary judgment arguing that substan tial evidence supported the
TWC’s decision as a matter of law because the evidence showed that JMJ agreed to pay all of the wages owed to him on September 25 , which was within 180 days of the date he filed his claim

. A fter reviewing the summary judgment evidence, the trial court affirmed th e TWC’s award. Peterson then brought this appeal. ANALYSIS I. Standard of Review The trial court reviews a decision of the TWC by trial de novo to determine whether the decision is supported by substantial evidence. See T EX
. L AB
. C ODE A NN
. § 61.062 (West 2006 ). Under the substantial evidence standard of review, the issue is whether the evidence introduced– 3

– before the trial court shows facts in existence at the time of the TWC decision that reasonably support the awar d

. See Collingsworth Gen. Hosp. v. Hunnicutt , 988 S.W.2d 706, 708 (Tex. 1998). The tri al court makes its determination based on the evidence presented at trial, rather than the evidence presented at the TWC hearing. See Direct Communications, Inc. v

. Lunsford , 906 S.W.2d 537, 541 (Tex. App.

— Dallas 1995, no writ). T he evidence heard at the TWC hearing is not per se admissible in the trial de novo, but it may be considered by the trial court if properly introduced. Id . at 540. The determination of whe ther the TWC’s decision was supported by substantial evidence is a question of law. Id . at 541. The trial court may not set aside the TWC’s decision merely because it would have reached a different conclusion. See Mercer v. Ross , 701 S.W.2d 830, 831 (Te x. 1986). Nor may the trial court set aside the decision because the testimony was conflicting or disputed or because it did not compel the result reached by the agency. See Firemen’s and Policemen’s Civil Serv. Comm’n v. Brinkmeyer , 662 S.W.2d 953, 956 (Tex. 1984). Substantial evidence must be more than a scintilla, but the evidence in the record may actually preponderate against the decision and, nonetheless, amount to substantial evidence supporting the decision. See Texas Health Facilities Comm’n v. Charter Medical

- Dallas, Inc. , 665 S.W.2d 446, 452 (Tex. 1984). The agency’s decision carries a presumption of validity and may be set aside only if it was made without regard to the law or the facts and, therefore, was unreasonable, arbitrary, or caprici ous. See Collingsworth , 988 S.W.2d at 708. There is no restriction on summary judgment in a case tried under the substantial evidence rule. See Lunsford , 906 S.W.2d at 542. When reviewing a summary judgment granted by the trial court in its de novo revi ew of a TWC decision, we determine whether the summary judgment evidence established , as a matter of law , that substantial evidence existed to support the TWC’s decision. Id

.– 4

– II. The TWC’s Jurisdiction In its first and second issues, JMJ contends the tr ial court erred in granting summary judgment in favor of the TWC because the competent summary judgment evidence showed that the TWC decision included an award of wages outside its jurisdiction. Specifically, JMJ argues the TWC’s award violates section 61.051(c) of the Texas Labor Code , which requires a wage claim to be filed no later than 180 days after the date the wages claimed became due for payment. See , T EX
. L AB
. C ODE A NN
. § 61.051(c) (We st Supp. 2012) . The statute explicitly makes the 180

- day deadline jurisdictional. See id

. It is undisputed that Peterson did not receive any salary payments after February 27, 2009 , but continued working for JMJ until October 2

. Peterson filed his wage claim on November 18, 2009 seeking all of his unpaid salary . JMJ argues the TWC had no jurisdiction to award Peterson wages owed before May 16, because these wages were due to be paid more than 180 days before Peterson filed his claim. The T WC responds t hat Peterson agreed to defer his compensation and Barton told him that he would be paid in full on September 25. Because Peterson filed his wage claim within 180 days of the date JMJ failed to pay him his deferred compensation, the TWC argues it had juris diction to award Peterson the full amount that was unpaid

. JMJ contends the TWC had no authority to resolve what is , essentially , a contract dispute . The company suggests that basing the award on JMJ’s alleged promised to pay Peterson the full amount owed on September 25 goes outside the TWC’s statutory mandate. According to JMJ, the TWC’s fact

- finding authority regarding when wages beco me due is li mited to a determination of the employee’s wage schedule. We disagree. When a wage claim becomes due is a question of fact to be determined by the TWC. See Lunsford , 906 S.W.2d at 542. Chapter 61 specifically allows an employee to schedule payment– 5

– of wa ges on a date other than a regularly scheduled payday. See T EX
. L AB
. C ODE A NN
. § 61.013 (West. 2006)

. JMJ does not point to any provision in Chapter 61 limiting the TWC’s ability to determine that the date wages became due was changed to a date other tha n a regularly scheduled payday. To hold otherwise would allow an employer to avoid an administrative wage claim merely by persuading an employee to agree to a payment date more than 180 days after the wages were scheduled to be paid. We conclude , t herefo re, that the TWC had the authority to determine that the all of Peterson’s unpaid salary w as due to be paid on September 25 , placing the entire amount within its jurisdiction to award. See Lunsford , 906 S.W.2d at 542

– 43. III. Substantial Evidence of Date Wages Due
JMJ next contends the TWC presented no competent summary judgment evidence to show the TWC’s finding that all wages were due on September 25 was supported by substantial evidence

. Most of JMJ’s argument addresses the admissibility of P eterson’s affidavit testimony. In addition to the affidavit testimony, however, the TWC submitted a certified copy of the oral testimony presented at the TWC hearing. This testimony alone provides more than a scintilla of evidence to support the finding that all the wages owed to Peterson were due on September 25. Although the de novo standard of review prohibits the trial court from simply reviewing the agency’s record to determine if the agency’s decision is supported by substantial evidence, individua l items from the agency’s record may be introduced independently before the trial court as part of its de novo review

. See Nuernberg v. Tex. Emp’t Comm’n , 858 S.W.2d 364, 365 (Tex. 1993). Here, the TWC submitted a certified copy of the oral testimony pre sented at the TWC hearing as part of its summary judgment evidence and JMJ made no objection. The testimony included the following exchange: Hearing Officer: Was there some sort of an agreement to defer the payment of wages period?– 6

– Barton: Well, uh, we explained to Mr. Peterson that we did not have the funds to make those payments . . . and we told him that would [sic] work on making payment in the future and that date came and went and we were still unable to do it. Hearing Officer: Was that date Septe mber 25? Barton: I believe so, yes. On appeal, JMJ contends this evidence is not competent because it is hearsay. Ev idence is not incompetent, however, merely because it is hearsay

. See Gaspar v. Lawnpro , 372 S.W.3d 754, 756 (Tex. App.

— Dallas 2012, no pet. ). Hearsay is a defect in form that must be raised in the trial court and the offering party must be given an opportunity to amend. Id. at 756

– 57. Absent an objection and ruling from the trial court , any error in admission of the evidence on the basis that it is hearsay is waived. Id

. As stated above, JMJ made no objection to the hearing testimony as summary judgment evidence, so its h earsay complaint has not been preserved . Furthermore, the statements offered by the TWC were made by a re presentative of JMJ. A party’s own statement is not hearsay if it is offered against the party who made it

. T EX
. R. E VID
. 801( e )(2) (A), (B), (D); see B ay Area Healthcare Group, Ltd. v . McShane , 239 S.W.3d 231, 235 ( Tex. 2007). We conclude, therefore, that the hearing testimony was properly considered by the trial court. JMJ next argues that, because it submitted evidence to show there was no agreement to pay Peterson all his past due wages on September 25, the TWC’s evidence did no more than raise a fact issue a nd was insufficient to support summary judgment. In making this argument, JMJ misunderstands the standard of review correctly applied by the trial court. To obtain summary judgment , the TWC was required to show only t hat its decision was supported by substantial evidence

. See Lunsford , 906 S.W.2d at 542. Whether the decision was supported by substantial evidence is a question of law. Id . at 541. The evidence may be conflicting or disputed and still constitute subst antial evidence. See Brinkmeyer , 662 S.W.2d at 956.– 7

– Barton’s testimony by itself constituted more than a scintilla of evidence to show that JMJ told Peterson he would be paid all of his past due wages on September 25. Accordingly, t he trial court did n ot err in concluding there was substantial evidence to support the TWC’s finding that all of Peterson’s unpaid wages became due on September 25. We resolve JMJ’s first two issues against it.
III. Substantial Evidence of Amount of Wages Owed In its third issue, JMJ contends the trial court erred in affirming the amount of wages awarded to Peterson because the $66,000 amount calculated by the TWC was incorrect. JMJ argues that, even if it owed Peterson the full amount of his unpaid wages, the evidence showed that the total amount owed was no more than $58,333.38. JMJ bases its calculation on the assumption that it owed wages for the period of March 1 through September 30, 2009 with two pay checks of $4,166.67 per month (14 x $4166.67 = $58,333 .38). But the evidence submitted by JMJ shows that the last paycheck Peterson received was for the pay period ending on February 6, 2009 . In addition, JMJ’s internal correspondence showed that Peterson’s last day with the company for purposes of payroll was October 9, 2009. Adding in the time periods of February 6 to March 1 and September 30 to October 9, Peterson was entitled to sixteen pay checks, bringing the total to $66,666.72. Based on this evidence , we conclude the trial court did not err in hold ing there was substantial evidence to support the amount awarded by the TWC as a matter of law. We resolve JMJ’s third issue against it.
We affirm the trial court’s judgment.

120263F.P05 /David Evans/ DAVID EVANS JUSTICE– 8

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
JMJ ACQUISITIONS MANAGEMENT, LLC, Appellant
No. 05

- 12

- 00263

- CV V. TERRY L. PETERSON AND TEXAS WORKFORCE COMMISSION, Appellees On Appeal from the 95th Judicial District Court, Dallas County, Texas Tri al Court Cause No. DC

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- 02746

- D. Opinion delivered by Justice Evans. Justices Francis and Lang participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. Judgment entered this 13th day of June, 2013.

/David Evans/ DAVID EVANS JUSTICE