### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03 - 19 - 00366 - CV
Rhonda Yvonne Davila, Appellant

v. Texas Mutual Insurance Company, Appellee

FROM THE 126TH DISTR ICT COURT OF TRAVIS COUNTY NO. D - 1 - GN - 18 - 000354 , THE HONORABLE CATH ERINE MAUZY, JU DGE PRESIDING

M E M O R A N D U M O P I N I O N Ap pellant Rhonda Yvonne Davila , pro se, file d a suit for judicial review of a final decision of the T e xas Department of Insurance, Division of Workers ’ Compensation (DWC)
. Appellee T e xas Mutual Ins uran ce Compa ny is t he worker s ’ compensation carrier of Davi la ’ s emp loyer. T exas M u tual filed a no

- evidence motion for summary judgment, which t he trial court granted after sustain ing Texas Mutual ’ s objections to Davila ’ s summary - judgment evidence
. We wil l af firm the tria l court ’ s summary judgment.
BACKGROUND In April 2016 Davila sustained a compensable work

- related injury. Texas Mutual accepted liab ility for her injury , but a dispute arose between the parties concerning the extent of her compensable i nju ry (i.e., whether it includes lumbar sprain/strain), the date on which she reached maximum medical improvement (MMI), and her impair ment rating. Davi la initia ted the mandato ry dispute

- resolution process at the DW C
. See T ex . Lab. Code § § 408.001(a) ( “ R e cov e ry2

of wo rkers ’ compensation benefits is the ex clusive remedy of an employe e covered by workers ’ compensation insurance coverage or a legal beneficiary against the employer o r an agent or employee of the employer for the death of or a work

- related inju r y s u stained by th e employee. ” ) , 413.031 (providing proced ures for resolution of medical disputes involving workers ’ compensation).

After a contested

- ca se hearing, the administrative law judge (ALJ) issued a decision and order finding that Davila ’ s com pensabl e injury did not extend to or include lumbar
s p rain/strain and that she reached MMI on May 19 , 2016 with a 0% impairment rating . Davi la appealed the ALJ ’ s order to the DWC Appeals Panel, which affirmed th e ALJ ’ s decision
. See id. § 410.202 (provid ing for appeal of ALJ ’ s decision to Appeals Panel). Davila th en filed this suit f or judicial revi ew specifically ch allenging the DWC ’ s findings on all three disputed issues. See id. § 410.25 1 (providing for jud icial review of decision of DWC Appeals Pane l )
.

Te xas Mutual filed a no - evidence summary - j udgment mo tion . Davila filed a response , attaching several exhibits (A through J) a s evidence , much of wh ich appears to be excerpts from the administrative hearing. Texas Mutual filed objections to all of D avila ’ s exhibit s and a motion to st rike them , rai sing several g rounds: lac k of proper auth entication and predicate; hearsay; and failure to meet the “ producing cause standard ” of causation. Davila did not file a re sponse to Texas Mut ual ’ s objections and m otion to strike. At the hearing on the motion to strike and motion for su mmary judg ment , Davila argued that the documents comprising her evidence w ere “ authenticated ” because they had stamp s at the bo ttom denot ing they h ad been admitted as exhibits at the adminis trative hearing. The trial court responded,

“ because the se [documents] were admi tted in that administrative hearing does not mean they are authenticated for p urposes of Summary Judgment evidence. ” Davi la ’ s only r esponse was that,3

contrary to Texa s Mutual ’ s contention that she had “ no evidence ” to support her claims, she had

“ tons of evidence. ” Davila d id not oth erwise respond to Texa s Mutual ’ s evidentiary objections.

In separate orders rendered after the hearing , t he trial court (1) sustained all of Te xas Mutual ’ s evidentiary objections without stating the basis of its ruling and struck all of Davila ’ s summary -

judgment evidence fr om the record , and (2) gr anted Texas Mutual ’ s summary - judgment motion.
D ISCUSSION On appeal, D avil a contends that ( 1) the t rial court abused its discretion in excluding all of her summary

- judgment evidence, and (2) the evidence w as legally insu fficient to support the trial court ’ s summary judgment. Although we review the trial court ’ s s ummary judgment de novo, Valen ce Operati ng Co. v. Dorsett , 164 S.W.3d 656, 661 (Tex. 2005) , we review its decision to exclude evidence in a summary

- judgment proceeding fo r an abuse of disc retion

— i.e., whether the trial court acted without reference to any guiding rules and pr inciples , Starwood M

gmt., LLC v. Swaim , 530 S.W.3d 673, 678 (Tex. 2017) (per curiam)
. In reviewi ng the grant of summary judgment , the scope of our review is limited to the summary

-

judgment record upon which the trial court ’s ruling was based. See Dees v. Thomas , No. 03

- 18

- 00372

- C V , 2019 WL 2847438 , at * 4 (T ex. App.

— Austin July 3, 2019, no pet. ) (mem. op. )
. In determining what constitutes the summary

- judgment record, we begin with Davila ’s first issue regarding the trial court ’ s excluding her evi dence
. As relev ant here, Te xas Mutual made th e foll owing three o bjections to Davi la ’s summary - judgment evidence : (1 ) “ Texas Mutual objects to Exhibits A through J on the ground that they have not been properly authenticated , ” (2) “ E xhibits A through J , as outlined below , contai n h e arsay statements and hearsay within4

hearsay , ” and (3) “ Texas Mutual objects to Davila ’ s Exhibits A through J because they do not meet the producing cause standard [citations omi tted]
. ”

Davila did not file a written r espo nse to Texas Mutual ’ s object ions ; object to the trial court ’ s ruling ; request the trial c ourt to reconsider its decision to strik e her exhibits ; or request an opportunity to amend her summary - judgment re spo nse via a motion for new trial, for rehearing, or to set a side the jud gment . Now, f or the fi rst time in briefing before this Court, Davila asserts that the trial court “erred by omitting all [of her] exhibits, ” “err [ed] in excludi ng critical evidence, ” “e xcluded all of [her] exhibits not jus t the ones co ntaining he arsay , ” a nd that Texas Mutual “is objecting to its own self by stating the D ecision and Order of the D i vision contain hearsay. ” Other than this vague reference to hearsay, h er brief cont ains no contention or supporting argument and authori ty that any of the three base s that Tex as Mutual asserted for exclusion of her evidence are without merit
.

As a prerequisite to presenting a complaint for appellate review, the record must show the complaint was made to the trial court by a timely request, objection , or motion
. Tex. R. App. P. 33.1(a). When a court excludes summary

- j udgment evidence, a party may not argue “any and every new issue” she can think of on appeal. Cantu v. Horany , 195 S.W.3d 867, 871 (Tex. App.

— Dallas 2006, no pet.) (citing Cruikshank v. Consumer D irect Mortg., I nc ., 138 S.W.3d 497, 499 ( Tex. App.

— Houston [14th Dist.] 2004, pet. denied)); see Montenegro v. Ocwen Loan Servicing, LLC , 419 S.W.3d 561, 568 (Tex. App.

— Amarillo 2013, pet. denied). By failing to raise complaints as to the me rits of the t r ial court ’ s rul ings on the objections, Dav ila failed to preserve error for appeal. Dees , 2019 WL 2847438 , at * 4 ; s ee Tex. R. App. P. 33.1(a); Montenegro , 419 S.W.3d at 568; Cantu , 195 S.W.3d at 871
.5 Further more , “when an appellee urges several objectio n s to a p articul ar piece of evidence and, on appeal, the appellant compl ains of its exclusion on only one of those bases, the appellant has waived that issue for appeal because [she] has not challenged all p ossible grounds f or the trial court ’ s ruling that sustaine d the o bjection.” Dees , 2019 WL 2847438, at *4 (quot ing Cantu , 195 S.W.3d at 871 ) ; see also Berryman ’ s S. Fork, Inc. v. J. Baxter Brinkmann Int ’ l Corp. , 418 S.W.3d 172, 190 (Tex. App.

— Dallas 2013, pet. denied); Gul ley v. Davis , 321 S.W.3 d 213, 21 8 (Tex. A pp.
— Hou ston [1st Dist.] 2010, pet. denied). Read liberal ly, Da vi la ’s appellate contentions address only Texas Mutual ’s hear say ground supporting the trial court ’ s ruling that sustained the objections
. Howe ver, s he fails to address the other two o bjection s that Texas Mutual a dvanced (i.e., that her e xhibits w ere not pro pe rly authenticated and did not meet the

“ producing c ause standard ” )
.

Because the trial court could have sustained Texas Mutual ’ s objections on grounds other than hea rsay, and D avil a has not chal leng ed all possible grounds for sustaining the
o bjections, we con clude that she ha s waived any error as to the exclusion of her summary

judgment evidence
. See Dees , 2019 WL 2847438, at *4 ; Berryman ’ s , 418 S.W.3d at 190; Gulley , 321 S.W .3 d at 218 ; Cantu , 1 95 S.W.3d at 871
. Accordingly, we must affirm the trial court ’ s ruling sustaining Texas Mutual ’ s objections and striking her evidence from the summary

- judgment record. See Nobil ity Homes of Tex., Inc. v. Shivers , 557 S.W.2d 77, 83 (Tex. 1977) ( concluding that appellate court must affi rm trial court ’ s judgment on unc hallenged , independent ground of
re covery ) ; Murray v. Grayum , No. 03

- 10

- 00165

- CV , 2011 WL 2533796, at * 1 (Tex. App.

— Austin June 24, 2011, pe t. denied ) (mem. op.) ( if appellant does not “ attack all independent bases or grounds that fully support a complained

- of ruling or judg ment , ” court “ must affirm the ruling or judgment on the rema ining independent basis ” ).6 Because we must review the trial court ’s summary

- judgment ruling on the record before it, see Dees , 2019 WL 2847438 , at * 4

— which does not include any of Davila ’s evidence

— we must accordingly conclude that the trial court properly granted Texas Mutual ’ s
no - evidence motion
. See Town of Dish v. Atmos Energy Corp. , 519 S. W.3d 605, 608 (Tex. 2 017) ( noting that after movant files no

- evidenc e moti on, bur den shi fts to respondent to produce some evidence r aising genu ine issue of material fact) ; Jennings v. Bin d sei l , 258 S.W.3d 190, 19 4 (Tex. App.

— Aus tin 2008, no pet.) (noting t hat if nonmovant fail s to raise issue of material fact, court must grant no
- evide nce motion)
. Because of our disposition of D avila ’ s first iss ue, we need not address her second issue ass erti ng that there is “factually insufficient eviden ce ” to support the trial court ’s su mmar y judgment.
C ONCLUSION We aff irm the trial court ’ s order g ranting summary judgment for Texas Mutual.

__________________________________________ T homas J. Baker , Justice Before Chi ef Justice Rose, Justices Baker and Triana Affirmed F ile d: March 12, 2020