COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00419-CV

MICHAEL M. BLANCHARD APPELLANT

V.

BRAZOS FOREST PRODUCTS, 

L.P. AND TEXAS WORKFORCE 

COMMISSION

APPELLEES

----------

FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

----------

OPINION

----------

I. Introduction

Appellant Michael M. Blanchard appeals the trial court’s summary 

judgment in favor of Appellees Brazos Forest Products, L.P. (Brazos) and Texas 

Workforce Commission (TWC). Blanchard contends in two issues that the trial 

court erred by granting summary judgment against him because it applied the 
2

wrong summary judgment standard and made incorrect evidentiary rulings. We 

affirm.

II. Background

Blanchard was employed as a truck driver for Brazos, but Brazos 

terminated Blanchard’s employment on June 17, 2008, because he allegedly 

treated a customer inappropriately. Blanchard sought unemployment benefits, 

but the TWC appeal tribunal denied his claim. The TWC affirmed the denial, and 

Blanchard appealed to district court. Brazos and TWC filed a joint motion for 

summary judgment, which the trial court granted after overruling most of 

Blanchard’s objections to Brazos and TWC’s summary judgment evidence.

In support of their joint motion for summary judgment, Brazos and TWC 

presented affidavits by Helen Nguyen, Randy Nguyen, Kyle Arterburn, and Daren 

Schirico. Ms. Nguyen stated in her affidavit that Blanchard delivered wood 

supplies to RD Shutters, Inc. on June 17, 2008, and that she was familiar with 

Blanchard from prior deliveries. She related that Blanchard typically entered the 

front office when he arrived for deliveries so that RD Shutters employees could 

assist him, but she said that Blanchard did not do so that day, that he instead 

began unloading the wood supplies himself, that he began throwing the supplies 

onto the loading dock, and that Blanchard had been rude and disrespectful 

during at least one prior delivery.

Mr. Nguyen was also employed by RD Shutters on June 17, 2008. He 

stated by affidavit that he was present during Blanchard’s delivery on that date, 
3

that he personally witnessed Blanchard throwing wood supplies onto the loading 

dock, that he personally asked Blanchard to stop throwing the supplies and wait 

until someone could assist him, but that Blanchard continued throwing the 

supplies onto the loading dock. Mr. Nguyen also stated that he called Brazos 

after the incident, complaining of Blanchard’s ―rude and destructive behavior‖ and 

asking that Blanchard not make any further deliveries to RD Shutters.

Arterburn is Brazos’s human resources manager. He stated in his affidavit 

that Blanchard’s employment with Brazos was terminated on June 17, 2008, after 

RD Shutters complained about Blanchard’s conduct during the delivery. Schirico 

is one of Brazos’s assistant general managers. Shirico stated by affidavit that he 

presented Blanchard with a termination notice on June 17, 2008, and informed 

Blanchard that he was being fired as a result of the customer complaint.

Blanchard filed a written response to Brazos and TWC’s joint motion for 

summary judgment, and he asserted objections to Brazos and TWC’s summary 

judgment evidence and presented evidence contradicting much of Brazos and 

TWC’s summary judgment evidence. In his affidavit, Blanchard stated that he 

went into the RD Shutters office when he arrived for the June 17, 2008 delivery 

but that no one was there. He averred that he then began unloading the wood 

bundles by sliding them from the truck to the loading dock and that this was 

permissible because he had done so during previous deliveries. Blanchard 

further stated that Mr. Nguyen approached him as he was unloading the last 

bundle onto the dock and that Mr. Nguyen was upset with him for not asking RD 
4

Shutters workers to assist with the delivery. Blanchard said, however, that he 

explained that there was no one in the office when he arrived, that he was not 

rude or disrespectful to Mr. Nguyen, that he gave Mr. Nguyen the opportunity to 

inspect the bundles, that Mr. Nguyen did so, and that Mr. Nguyen signed the 

delivery invoice without indicating any damage to the product. Blanchard further 

stated that he has a back problem and is physically unable to throw the wood 

supplies onto a loading dock. Finally, Blanchard denied seeing or having any 

interaction with Ms. Nguyen on June 17, 2008.

Mark Gilbert testified in his deposition that he was Blanchard’s direct 

supervisor at Brazos, that sliding the wood product from the truck onto the 

loading dock is a permissible way to unload without damaging the product, and 

that he recalled providing Blanchard with a hook to assist him in sliding the wood 

product off the bed of a delivery truck.

III. Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the 

light most favorable to the nonmovant, crediting evidence favorable to the 

nonmovant if reasonable jurors could, and disregarding evidence contrary to the 

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every 

reasonable inference and resolve any doubts in the nonmovant’s favor. 20801, 

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008).
5

IV. Discussion

Blanchard contends in his first issue that the trial court erred by granting 

summary judgment for Brazos and TWC because he presented evidence raising 

genuine issues of material fact. Specifically, Blanchard argues that the trial court 

did not apply the traditional summary judgment standard when granting Brazos 

and TWC’s joint motion for summary judgment. In his second issue, Blanchard 

contends that the trial court abused its discretion by overruling his objections to 

Brazos and TWC’s summary judgment evidence.

A. Summary Judgment

Brazos and TWC moved for summary judgment on the ground that 

Blanchard’s employment with Brazos was terminated for misconduct as defined 

by labor code section 201.012, meaning that Blanchard was not entitled to 

unemployment benefits pursuant to labor code section 207.044(a). See Tex. 

Lab. Code Ann. §§ 201.012(a), 207.044(a) (West 2006).

Blanchard argues that under the traditional standard for reviewing 

summary judgments—requiring the movant to establish entitlement to summary 

judgment as a matter of law, taking as true the nonmovant’s evidence, and 

indulging every inference in the nonmovant’s favor—he presented evidence 

creating genuine issues of material fact. To resolve Blanchard’s first issue, it is 

first necessary to review the nature of an appeal to district court following TWC’s 

administrative decision.
6

Judicial review of a TWC determination is by ―trial de novo based on the 

substantial evidence rule.‖ Tex. Lab. Code Ann. § 212.202(a) (West 2006). The 

trial court conducts an evidentiary trial to ―determine whether the agency’s ruling 

is free of the taint of any illegality and is reasonably supported by substantial 

evidence.‖ Edwards v. Tex. Emp’t Comm’n, 936 S.W.2d 462, 465 (Tex. App.—

Fort Worth 1996, no writ). In making this determination, the issue is not whether 

TWC made the correct decision; it is instead ―whether the evidence introduced 

before the trial court shows facts in existence at the time of the [agency’s] 

decision that reasonably support the decision,‖ that is, whether reasonable minds 

could have reached the same conclusion. Collingsworth Gen. Hosp. v. 

Hunnicutt, 988 S.W.2d 706, 708 (Tex. 1998); see Edwards, 936 S.W.2d at 465; 

see also Tex. Health Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 

446, 452 (Tex. 1984) (―The true test is not whether the agency reached the 

correct conclusion, but whether some reasonable basis exists in the record for 

the action taken by the agency.‖). Because substantial evidence is more than a 

mere scintilla of evidence but less than a preponderance of evidence, the 

evidence may preponderate against the TWC decision but still amount to 

substantial evidence. City of Houston v. Tippy, 991 S.W.2d 330, 334 (Tex.

App.—Houston [1st Dist.] 1999, no pet.); see also Tex. Health Facilities Comm’n, 

665 S.W.2d at 452. TWC remains the primary factfinding body, and the 

reviewing court may not substitute its judgment for TWC’s on controverted fact 
7

issues; the question before the trial court is one of law. Edwards, 936 S.W.2d at 

465.

Trial courts may grant summary judgments in cases tried under the 

substantial evidence rule. Cruz v. City of San Antonio, 424 S.W.2d 45, 47 (Tex.

Civ. App.—San Antonio 1968, no writ); see Jimison v. Tex. Workforce Comm’n, 

No. 02-09-00127-CV, 2010 WL 851418, at *3 (Tex. App.—Fort Worth Mar. 11, 

2010, no pet.) (mem. op.). ―Indeed, appeals under substantial evidence review 

are uniquely suited to summary judgment because the only issue before the 

court is a question of law.‖ Arrellano v. Tex. Emp’t Comm’n, 810 S.W.2d 767, 

771 (Tex. App.—San Antonio 1991, writ denied). We review the trial court’s 

judgment by comparing the TWC decision with the evidence presented to the trial 

court and the governing law. Potts v. Tex. Emp’t Comm’n, 884 S.W.2d 879, 882 

(Tex. App.—Dallas 1994, no writ). We determine whether the summary 

judgment evidence established as a matter of law that substantial evidence 

existed to support the TWC decision. Id. at 883.

Thus, the trial court in this case was required to accept as true all of 

Blanchard’s evidence, indulge every reasonable inference and resolve any 

doubts in his favor, and determine whether the summary judgment evidence 

showed, as a matter of law, that facts in existence at the time of TWC’s decision 

reasonably supported the decision—i.e., whether reasonable minds could have 

reached the same conclusion. See Collingsworth Gen. Hosp., 988 S.W.2d at
8

708; Edwards, 936 S.W.2d at 465; Jimison, 2010 WL 851418, at *3–4; see also

Mann Frankfort, 289 S.W.3d at 848; 20801, Inc., 249 S.W.3d at 399.

Blanchard’s contention is essentially that the trial court must have applied 

the wrong evidentiary standard because he presented evidence creating genuine 

issues of material fact in response to Brazos and TWC’s summary judgment 

evidence. But Blanchard misinterprets the question to be decided by the trial 

court on summary judgment. Rather than determine whether Brazos and TWC 

proved as a matter of law that Blanchard engaged in misconduct as defined by 

the labor code or whether fact issues precluded summary judgment, the trial 

court was required to determine whether Brazos and TWC proved as a matter of 

law that substantial evidence supported TWC’s decision to deny him 

unemployment benefits. See Collingsworth Gen. Hosp., 988 S.W.2d at 708; Tex.

Health Facilities Comm’n, 665 S.W.2d at 452; Edwards, 936 S.W.2d at 465; 

Potts, 884 S.W.2d at 883. As stated above, summary judgment is appropriate if 

the summary judgment evidence proves as a matter of law that substantial 

evidence—i.e., more than a scintilla but less than a preponderance—supports 

the TWC decision, even though the summary judgment evidence preponderates 

against the TWC decision to deny benefits. See Tippy, 991 S.W.2d at 334; see 

also Tex. Health Facilities Comm’n, 665 S.W.2d at 452. With these principles in 

mind, we turn to the merits of the trial court’s grant of summary judgment against 

Blanchard.
9

A person is ―disqualified for benefits if [he] was discharged for misconduct 

connected with [his] last work.‖ Tex. Lab. Code Ann. § 207.044(a). Labor code 

section 201.012(a) defines ―misconduct‖ as ―mismanagement of a position of 

employment by action or inaction, neglect that jeopardizes the life or property of 

another, intentional wrongdoing or malfeasance, intentional violation of a law, or 

violation of a policy or rule adopted to ensure the orderly work and the safety of 

employees.‖ Tex. Lab. Code Ann. § 201.012(a). Brazos and TWC argued to the 

trial court that Blanchard’s conduct constituted mismanagement of his position of 

employment. Mismanagement under section 201.012(a) requires intent ―or such 

a degree of carelessness as to evidence a disregard of the consequences, 

whether manifested through action or inaction.‖ Mercer v. Ross, 701 S.W.2d 

830, 831 (Tex. 1986). However, ―[m]ere failure to perform the tasks to the 

satisfaction of the employer, without more, does not constitute misconduct which 

disqualifies an employee from benefits.‖ Tex. Emp’t Comm’n v. Torres, 804 

S.W.2d 213, 215–16 (Tex. App.—Corpus Christi 1991, no pet.).

Brazos and TWC presented summary judgment evidence that Blanchard 

delivered wood supplies to RD Shutters on June 17, 2008; that he did not ask for 

assistance in the front office as he had done on prior deliveries; that he unloaded 

the wood supplies himself by throwing them onto the loading dock; that Mr. 

Nguyen asked Blanchard to stop throwing the supplies and wait until someone 

could assist him; but that Blanchard continued throwing the supplies onto the 

loading dock. There is also evidence that Blanchard’s employment with Brazos 
10

was terminated because Mr. Nguyen called Brazos after the incident, complained 

of Blanchard’s ―rude and destructive behavior,‖ and asked that Blanchard not 

make any further deliveries to RD Shutters. Blanchard presented summary 

judgment evidence contradicting almost all of these facts.

If the issue were simply whether genuine issues of material fact precluded 

summary judgment on the question of Blanchard’s alleged mismanagement of

his position of employment, the summary judgment should have been denied. 

But the issue is instead whether the summary judgment evidence proved as a 

matter of law that substantial evidence supported TWC’s decision to deny 

Blanchard benefits because it found that he mismanaged his position of 

employment. See Tex. Lab. Code Ann. § 201.012(a); Collingsworth Gen. Hosp., 

988 S.W.2d at 708; Tex. Health Facilities Comm’n, 665 S.W.2d at 452; Edwards, 

936 S.W.2d at 465; Potts, 884 S.W.2d at 883. Answering solely that question of 

law, we hold that the trial court did not err by concluding, as a matter of law, that 

reasonable minds could have determined that Blanchard mismanaged his 

position of employment. The evidence, although conflicting, constitutes more 

than a scintilla of evidence that Blanchard acted with carelessness with sufficient 

disregard of the consequences as opposed to the mere failure to perform a task 

to Brazos’s satisfaction. See Mercer, 701 S.W.2d at 831; Torres, 804 S.W.2d at 

215–16. We overrule Blanchard’s first issue.
11

B. Evidentiary Rulings

Blanchard contends in his second issue that the trial court abused its 

discretion by overruling his objections to Brazos and TWC’s summary judgment 

evidence. We need not address Blanchard’s evidentiary objections, however, 

because we have not relied on the objected-to evidence in determining that the 

trial court did not err by finding that substantial evidence supported the TWC’s 

decision.1 See Tex. R. App. P. 47.1. We therefore overrule Blanchard’s second 

issue.

V. Conclusion

Having overruled each of Blanchard’s issues, we affirm the trial court’s 

judgment.

ANNE GARDNER

JUSTICE

PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.

DAUPHINOT, J., filed a concurring opinion.

DELIVERED: October 27, 2011

 

1Blanchard objected to evidence of the TWC appeal tribunal decision and 

TWC final decision, Brazos employee conduct policies, the portion of Shirico’s 

affidavit detailing the complaint he received from Ms. Nguyen, e-mails from Ms. 

Nguyen to Shirico, and the portion of Ms. Nguyen’s affidavit detailing statements

made by RD Shutters employee Ana Saucedo.
COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00419-CV

MICHAEL M. BLANCHARD APPELLANT

V.

BRAZOS FOREST PRODUCTS, APPELLEES

L.P. AND TEXAS WORKFORCE

COMMISSION

------------

FROM THE 352ND DISTRICT COURT OF TARRANT COUNTY

------------

CONCURRING OPINION

----------

The majority correctly recites the standard of review appropriate for a 

traditional summary judgment1but then essentially holds that it is irrelevant 

because there is no real appeal from the determination of the Texas Workforce 

Commission (TWC), stating,

 

1Majority op. at 4; see Tex. R. Civ. P. 166a(b)–(c); Travelers Ins. Co. v. 

Joachim, 315 S.W.3d 860, 862 (Tex. 2010); Mann Frankfort Stein & Lipp 

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); 20801, Inc. v. 

Parker, 249 S.W.3d 392, 399 (Tex. 2008).
2

Rather than determine whether Brazos and TWC proved as a matter 

of law that Blanchard engaged in misconduct as defined by the labor 

code or whether fact issues precluded summary judgment, the trial 

court was required to determine whether Brazos and TWC proved as 

a matter of law that substantial evidence supported TWC’s decision 

to deny him unemployment benefits.

2

No matter that we must take the allegations of the nonmovant as true and 

determine whether any issue of material fact exists in a true traditional summary 

judgment review,3if there was any evidence amounting to more than a scintilla 

before the TWC that supports its decision, the entire appeal process is a sham 

because as a matter of law the TWC cannot be reversed.4 Here, the nonmovant 

showed substantial conflicting evidence. If we take it as true, summary judgment 

is not proper.5 But, despite the standard of review to which we must give lip 

service, all that conflicting evidence must be ignored in this case because, in 

determining appeals from a TWC ruling, factual allegations of the nonmovant are 

 

2Majority op. at 8.

3

Tex. R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848.

4See majority op. at 8; City of Houston v. Tippy, 991 S.W.2d 330, 334 (Tex. 

App.—Houston [1st Dist.] 1999, no pet.); Edwards v. Tex. Emp’t Comm’n, 936 

S.W.2d 462, 465 (Tex. App.—Fort Worth 1996, no writ); see also Tex. Health 

Facilities Comm’n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452–53 (Tex. 

1984) (noting that if there is substantial evidence, that is, more than a mere 

scintilla, supporting the agency findings, the decision must be upheld even if the 

evidence preponderates against it).

5See Tex. R. Civ. P. 166a(c); Fielding, 289 S.W.3d at 848.
3

irrelevant if there was any evidence amounting to more than a mere scintilla 

before the TWC that supports its ruling.6

If this is what the legislature intends, then the Supreme Court of Texas

should come up with a new standard of review to be applied to summary 

judgment cases involving appeals from administrative decisions based on 

substantial evidence, and that standard of review should make sense in light of 

the law that we are obligated to follow. I would suggest that the standard first 

look to whether there was substantial evidence to support the administrative 

ruling. Then I would ask whether the nonmovant has produced evidence either 

below or as newly discovered evidence to show as a matter of law that the 

administrative ruling cannot stand or that reasonable persons could not disagree 

that the veracity or reliability of the evidence supporting the administrative ruling 

was so lacking that a reasonable person could not rely on the evidence below. If 

there is a question regarding when the nonmovant became aware of this 

evidence, it would go to the propriety of granting or denying the motion for 

summary judgment. That is, the burden would be on the proponent of the newly 

discovered evidence in the same manner as in a motion for new trial based on 

newly discovered evidence.7

 

6See majority op. at 7; Edwards, 936 S.W.2d at 465.

7See Fantasy Ranch, Inc. v. City of Arlington, 193 S.W.3d 605, 615 (Tex. 

App.—Fort Worth 2006, pet. denied).
4

The majority has correctly addressed the issues before us as the law now 

stands. I respectfully ask the Supreme Court of Texas to reconsider the standard 

of review for summary judgments in cases involving appeals from administrative 

rulings based on substantial evidence.

LEE ANN DAUPHINOT

JUSTICE

DELIVERED: October 27, 2011