Affirmed in part, Reversed and Remanded in part, and Memorandum 

Opinion filed August 23, 2016.

In The 

Fourteenth Court of Appeals 

NO. 14-15-00674-CV

LAURIE POE, Appellant 

V.

OMNI FLOW COMPUTERS, INC., Appellee 

On Appeal from the 11th District Court 

Harris County, Texas 

Trial Court Cause No. 2014-33603 

M E M O R A N D U M O P I N I O N 

Appellant Laurie Poe filed a wage claim with the Texas Workforce 

Commission (TWC) in an unsuccessful effort to recover unpaid commissions from 

appellee Omni Flow Computers, Inc. She later filed suit in district court to recover 

the commissions, and the court granted summary judgment in favor of Omni Flow 

on the ground that Poe’s suit was untimely. We conclude that the suit was time 

barred as to the commissions addressed by the TWC, but not as to the commissions 
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the TWC lacked jurisdiction to address. We therefore affirm in part and reverse in 

part. 

BACKGROUND

Poe contends that under the terms of her employment agreement with Omni 

Flow, it owes her additional commissions for work performed in 2012. In February 

2013, Poe filed a wage claim with the TWC for $241,367.41 in unpaid 

commissions. The TWC issued a Preliminary Wage Determination Order

dismissing Poe’s wage claim and finding that (1) she was not entitled to additional 

commissions of $201,509.41 for the last three quarters of 2012 because Omni Flow 

had paid the correct amount for those quarters, and (2) it lacked jurisdiction over 

her claim for unpaid commissions for the first quarter of 2012 because they would 

have been due more than 180 days before Poe filed her claim. Poe appealed this 

decision and the Wage Claim Appeal Tribunal affirmed, issuing a Texas Payday 

Law Decision explaining its reasoning. The decision was mailed on October 15, 

2013, and became final fourteen days later.

On June 11, 2014, Poe filed a petition in state district court, pleading claims 

against Omni Flow for breach of contract and promissory estoppel based on the 

same unpaid commissions. Omni Flow filed a traditional motion for summary 

judgment on the sole ground that Poe’s claims were untimely under section 61.062 

of the Texas Labor Code. The trial court granted summary judgment, and Poe 

timely filed this appeal. 

ANALYSIS

In a single issue, Poe contends that the trial court erred in granting summary 

judgment in favor of Omni Flow. We review a trial court’s grant of summary 

judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 
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2010). We consider all of the evidence in the light most favorable to the 

nonmovant, crediting evidence favorable to the nonmovant if a reasonable 

factfinder could, and disregarding contrary evidence unless a reasonable factfinder 

could not. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).

A movant for traditional summary judgment has the burden of showing that 

there is no genuine issue of material fact and that it is entitled to judgment as a 

matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. 

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When the movant is a defendant, a 

trial court should grant summary judgment only if the defendant (1) negates at least 

one element of each of the plaintiff’s causes of action, or (2) conclusively 

establishes each element of an affirmative defense. Clark v. ConocoPhillips Co., 

465 S.W.3d 720, 724 (Tex. App.—Houston [14th Dist.] 2015, no pet.). A 

defendant moving for summary judgment on the affirmative defense of limitations 

must conclusively prove that defense as a matter of law. Id. The nonmovant has no 

burden to respond to a summary judgment motion unless the movant conclusively 

establishes each element of its cause of action or defense as a matter of law. 

Rhône–Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222–23 (Tex. 1999).

A party who has exhausted remedies under the Texas Labor Code may file 

suit to appeal the TWC’s final administrative order not later than the thirtieth day 

after the date the order is mailed. Tex. Lab. Code Ann. § 61.062 (West 2015). 

When a claimant chooses to file a wage claim under the statute, she is required to 

abide by the statute’s provisions. See Holmans v. Transource Polymers, Inc., 914 

S.W.2d 189, 193 (Tex. App.—Fort Worth 1995, writ denied). Thus, “[t]o pursue 

common-law remedies after filing a claim under the Payday Law, a claimant must 

withdraw his claim with the TWC before its decision becomes final.” Tricon Tool 

& Supply, Inc. v. Thumann, 226 S.W.3d 494, 511 (Tex. App.—Houston [1st Dist.] 
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2006, pet. denied); see Igal v. Brightstar Info. Tech. Grp., Inc., 250 S.W.3d 78, 88–

89 (Tex. 2008). 

Omni Flow’s summary-judgment evidence shows that the TWC’s Texas 

Payday Law Decision was mailed on October 15, 2013, and it became final 

fourteen days later on October 29, 2013. See Tex. Lab. Code Ann. § 61.061(c) 

(West 2015). Poe filed suit on June 11, 2014. Because Poe’s suit for unpaid 

commissions was not filed within thirty days after the date the TWC’s order 

became final, it was untimely. See id. § 61.062. As to the commissions addressed 

in the TWC’s order, therefore, the trial court correctly granted summary judgment 

and dismissed Poe’s claims. 

The TWC determined, however, that Poe’s claim for commissions from the 

first quarter of 2012 were outside its jurisdiction because they would have been 

due more than 180 days before she filed her claim. See id. § 61.051(c); Campbell v. 

Mabry, 457 S.W.3d 173, 176 (Tex. App.—Houston [14th Dist.] 2015, no pet.). 

Therefore, the statute requiring suit to be filed within thirty days of the decision 

being mailed did not apply to claims based on the first-quarter commissions. See 

Campbell, 457 S.W.3d at 176. Poe’s breach of contract and promissory estoppel 

claims regarding unpaid commissions for the first quarter of 2012 fall under the 

general four-year statute of limitations, and Omni Flow does not contend that this 

statute bars the claims. See Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (West 

2014). 

Omni Flow argues on appeal that although the TWC did not have 

jurisdiction over Poe’s first-quarter claims, her suit for those claims is barred by 

res judicata in light of statements in the Appeal Tribunal’s decision. This argument 

cannot provide a basis for affirmance, however, because Omni Flow did not move 

for summary judgment based on res judicata. See Olmstead v. Napoli, 383 S.W.3d 
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650, 652 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“When reviewing a 

summary judgment motion, we cannot read between the lines or infer from the 

pleadings or evidence any grounds for summary judgment other than those 

expressly set forth before the trial court.”). Moreover, for res judicata to apply, the 

previous determination of the claim must have been rendered by a court of 

competent jurisdiction. Travelers Ins. Co., 315 S.W.3d at 862. In its decision, the 

Appeal Tribunal expressly stated it did not have jurisdiction over Poe’s firstquarter claims. Any indication in the decision that Poe had been properly paid for 

her first-quarter claims therefore has no preclusive effect. See Campbell, 457 

S.W.3d at 176. We sustain Poe’s issue in part and hold that the trial court erred in 

granting summary judgment as to Poe’s claims for first-quarter commissions. 

CONCLUSION

Omni Flow only established its right to summary judgment on Poe’s claims 

over which the TWC had jurisdiction. Accordingly, we affirm the summary 

judgment in part as to those claims, and we reverse the judgment in part and 

remand for further proceedings on Poe’s claims for first-quarter 2012 

commissions. 

 

 /s/ J. Brett Busby

 Justice 

Panel consists of Justices Christopher, McCally, and Busby.