City of Houston v. Dahlia Soriano, Willie O. Thomas, Nicole Pelrean, and Carl Noon--Appeal from 151st District Court of Harris County

Affirmed in Part, Reversed and Rendered in Part, Reversed and Remanded in Part, and Memorandum Opinion filed August 29, 2006

Affirmed in Part, Reversed and Rendered in Part, Reversed and Remanded in Part, and Memorandum Opinion filed August 29, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00161-CV

____________

CITY OF HOUSTON, Appellant

V.

DAHLIA SORIANO, WILLIE O. THOMAS, NICOLE PELREAN, AND CARL NOON, Appellees

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Cause No. 00-41314

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

Appellant, City of Houston (the ACity@), appeals the final judgment entered by the trial court. The City challenges the trial court=s denial of the City=s entitlement to full subrogation against the recoveries received by appellees, Dahlia Soriano, Willie O. Thomas, and Nicole Pelrean, from third party tortfeasors.[1] We affirm in part, reverse and render in part, and reverse and remand in part.

Factual and Procedural Background

The City is a municipality that provides workers= compensation benefits to its employees through self-insurance. In order to comply with the requirements of the Texas Workers= Compensation Act (ATWCA@), the City must pay its employees injured on the job a percentage, generally seventy percent, of their pre-injury wages while they recover from their injuries. Tex. Lab. Code Ann. ' 408.103 (Vernon Supp. 2005). The City retains a third-party administrator, Ward North America (AWNA@) to process and pay the City=s workers= compensation claims. Therefore, when a city employee, like one of the appellees, is injured while working, WNA pays temporary income benefits directly to the injured employee and also pays the injured employee=s medical providers on behalf of the City as required by the TWCA.

The City is obligated to pay any police officer or fire fighter their full salary when they suffer job related injuries. Tex. Loc. Gov=t Code Ann. ' 143.073 (Vernon Supp. 2005).[2] To prevent an injured police officer from earning more while injured than while working, the City offsets amounts received by appellees in workers= compensation benefits from the salary continuation benefits received under the Civil Service Act. Tex. Lab. Code Ann. ' 505.051(a)(1)(A) (Vernon 1996). Therefore, the City directly pays the injured police officer or fire fighter the remaining thirty percent of their pre-injury wages through their regular payroll checks.

Appellees are all police officers with the Houston Police Department who were injured in automobile collisions while on duty. As a result of their on-the-job injuries, each appellee received an injured-on-duty leave of absence with full pay for the time necessary to recover from their injuries. In addition, each appellee=s medical expenses were paid by the City through its administrator WNA. Each appellee=s full pay was paid by the City through the temporary income benefits received from WNA, as well as their regular City payroll check. The amount offset from appellees= payroll checks reflected the seventy percent already received by appellees from the City through the WNA workers= compensation payments. This reduction was made so appellees would only receive thirty percent of their pre-injury salary on their City payroll check ensuring that each appellee did not receive more than one hundred percent of their pre-injury salary while on injured-on-duty leave of absence. Each appellee received the following amounts either directly or paid for their benefit:

Name

Medical Expenses

Workers= Compensation Benefits

Salary Continuation Benefits

Total

Dahlia Soriano

$11,716.41

$1,831.47

$1,029.05

$14,576.98

Willie O. Thomas

$6,355.89

$5,972.58

$4,429.49

$16,757.96

Nicole Pelrean

$1,846.93

$4,500.88

$992.78

$7,340.69

Totals

$19,919.23

$12,304.93

$6,451.32

$38,675.58

Appellees each instituted litigation against the third party alleged to be responsible for their injuries. Only appellees Soriano, Thomas, and Pelrean actually made recoveries from the alleged third party tortfeasors. Officer Soriano recovered $20,000, Officer Thomas recovered $13,319.15, and Officer Pelrean recovered $17,000.

A dispute erupted between appellees and the City when the City asserted liens on the third party recoveries for the workers= compensation benefits paid to or on behalf of appellees, as well as for the Civil Service Act salary continuation benefits paid to appellees. While appellees agreed the City was entitled to a lien to recover the medical expenses paid on behalf of the appellees, the appellees denied the City was entitled to any additional portion

of the third party recoveries to reimburse the City for the workers= compensation temporary income benefits paid or the salary continuation benefits paid. Appellees argued the City had already been reimbursed when it offset appellees= workers= compensation temporary income benefits against appellees= regular payroll checks. When efforts to negotiate a resolution of this dispute were unsuccessful, appellees filed a declaratory judgment action pursuant to the Uniform Declaratory Judgments Act, Chapter 37 of the Texas Civil Practices and Remedies Code, to determine the amount of money appellees, appellees= counsel, and the City are entitled to receive from the third party recoveries. See Tex. Civ. Prac. & Rem. Code Ann. ' 37.01 et seq. (Vernon 1997 & Supp. 2005). The City filed an answer asserting appellees were not entitled to the relief they requested, requesting recovery of the full amounts of its statutory liens, and requesting the award of its attorney=s fees pursuant to section 37.009 of the Texas Civil Practices and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1997).

After a bench trial, the trial court entered a judgment in favor of appellees. The trial court determined: (1) appellees were entitled to full pay and benefits pursuant to section 143.073 of the Civil Service Act (Asection 143.073") and the City was not entitled to reimbursement from the third party recoveries for the full pay and benefits paid to appellees while appellees were on injured-on-duty leave; (2) the City was entitled to reimbursement for the workers= compensation temporary income benefits paid to appellees, however, due to the offsets made by the City through payroll deductions, the City had already been fully reimbursed; (3) the appellees did not owe the City for alleged salary continuation benefits paid to appellees while on injured-on-duty leave; (4) the City was entitled to be reimbursed out of the third party recoveries for all medical expenses paid by the City on behalf of appellees for their on-the-job injuries; (5) the attorneys representing the City and appellees Soriano and Thomas were each awarded one-sixth of the funds recovered from the third party tortfeasors and payable to the City for the City=s subrogation lien regarding medical bills; and (6) awarded appellees their attorney=s fees incurred in the litigation and in the event of an appeal. The trial court also entered Findings of Fact and Conclusions of Law. This appeal followed.

Discussion

In three issues on appeal, the City argues the trial court erred when it (1) ruled the City was not entitled to reimbursement for the full pay received by appellees as required by section 143.073, (2) ruled the City had already been reimbursed for the temporary income benefits paid to appellees through the deductions made to appellees= payroll checks, and (3) awarded appellees attorney=s fees for their declaratory judgment action.

I. Standard of Review

We review declaratory judgments under the same standards as other judgments and decrees. Barrera v. State, 130 S.W.3d 253, 261 (Tex. App.CHouston [14th Dist.] 2004, no pet.) (citing Tex. Civ. Prac. & Rem. Code Ann. ' 37.010 (Vernon 1997)). We look to the procedure used to resolve the issue at trial to determine the standard of review. Id. The issues presented by the City in this appeal require a review of the trial court=s interpretation and application of the Civil Service Act and the TWCA. It is well settled in Texas that statutory interpretation presents a question of law subject to de novo review. Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 437 (Tex. 1997). A trial court has no discretion when evaluating a question of law. See Huie v. DeShazo, 922 S.W.2d 920, 927 (Tex. 1996); Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). We give no particular deference to the trial court=s findings. Nipper-Bertram Trust v. Aldine Indep. Sch. Dist., 76 S.W.3d 788, 791 (Tex. App.CHouston [14th Dist.] 2002, pet. denied). The Texas courts of appeal are required to conduct an independent review and evaluate the statute to determine its meaning. Id.

A court=s primary objective in construing a statute is to determine and give effect to the legislative intent. Liberty Mut. Ins. Co. v. Garrison Contractors, Inc., 966 S.W.2d 482, 484 (Tex. 1998). Under accepted principles of statutory construction, if the language of a statute is unambiguous, then the court must seek the legislative intent as found in the plain and common meaning of the words and terms used. Sorokolit v. Rhodes, 889 S.W.2d 239, 241 (Tex. 1994). Common words should be interpreted as they are commonly used. Elgin Bank v. Travis County, 906 S.W.2d 120, 121 (Tex. App.CAustin 1995, writ denied). In our construction, we must presume the entire statute is intended to be effective, a just and reasonable result is intended, a result feasible of execution is intended, and the public interest is favored over private interest. Tex. Gov=t Code Ann. ' 311.021 (Vernon 2005); Compass Bank v. Bent Creek Inv., Inc., 52 S.W.3d 419, 424 (Tex. App.CFort Worth 2001, no pet.). Construction of a statute that would render a provision useless is not favored by law. Carson v. Hudson, 398 S.W.2d 321, 323 (Tex. App.CAustin 1966, no writ).

When a trial court separately files findings of fact and conclusions of law, these control over recitations in the judgment. Tex. R. Civ. P. 299a; Guridi v. Waller, 98 S.W.3d 315, 317 (Tex. App.CHouston [1st Dist.] 2003, no pet.). A trial court=s conclusions of law are reviewed de novo as legal questions. Mack v. Landry, 22 S.W.3d 524, 528 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

 II. Is the City Entitled to be Reimbursed for the Salary Continuation Benefits and Workers= Compensation Temporary Income Benefits Paid to Appellees?

In its resolution of the case, the trial court determined the City was not entitled to be reimbursed out of appellees= third party recoveries for (1) the full pay and benefits paid to appellees pursuant to section 143.073, and (2) the workers= compensation temporary income benefits paid to appellees as the City had been fully reimbursed through appellees= payroll deductions. The City argues the trial court erred when it made these determinations. We agree with the City.

 A. The City=s Salary Continuation Plan Complies with Section 143.073 and the TWCA.

Appellees, since they were injured while working as police officers for the City, were entitled to receive full pay and benefits for the period of time, up to a full year, required for

each appellee to recover from his or her injuries. Tex. Loc. Gov=t Code Ann. ' 143.073(a) (Vernon 1999).[3] In addition, appellees were entitled to receive benefits pursuant to the TWCA. Tex. Lab. Code Ann. '' 408.021, 408.103(Vernon 1996). These benefits included both temporary income benefits up to seventy percent of the injured employee=s pre-injury wages and payment for medical care appellees received to treat their on-the-job injuries. Id.

Section 143.073 does not address how a municipality must comply with the statute=s requirements. To implement the requirements found in section 143.073 and the TWCA, the City adopted section 14-226 of the Houston Municipal Code, which contains the City=s Salary Continuation Plan. See Houston, Tex. Ordinances ' 14-226. The Salary Continuation Plan includes the City=s sick leave policy for all employees injured in the course and scope of their employment with the City. See id. Under the Salary Continuation Plan, police officers injured on the job are granted sick leave consistent with the requirements found in section 143.073. Id. In addition, under the City=s Salary Continuation Plan, an injured police officer is entitled to receive statutory workers= compensation benefits and supplemental salary continuation in an amount equivalent to his or her pre-injury wage as required by section 143.073. Id. As the City=s Salary Continuation Plan does not conflict with a state statute and indeed is consistent with the requirements established by section 143.073, the City is permitted to pay police officers who were injured on the job pursuant to the Salary Continuation Plan. In accordance with the Salary Continuation Plan, while appellees were on injured-on-duty leave, the City paid appellees their full salary in two parts. The City paid appellees approximately seventy percent of their pre-injury wages in the form of workers= compensation temporary income benefits through WNA, the City=s workers= compensation plan administrator. The City then directly paid the appellees the remaining thirty percent of their pre-injury wages through the appellees= regular payroll checks.

B. How Much Were Appellees Actually Paid While on Injured-on-Duty Leave of Absence?

In its Final Judgment, the trial court, apparently accepting appellees= erroneous argument that appellees were entitled to and had been paid 170% of their pre-injury wages while on injured-on-duty leave of absence, concluded the City had been completely reimbursed for all workers= compensation temporary income benefits paid to appellees through the payroll deductions made to appellees= paychecks.

In rendering its Final Judgment, the trial court failed to consider the impact of section 504.051(a)(1)(A) of the TWCA. The legislature enacted section 504.051(a)(1)(A) of the TWCA,[4] which dictates that payments made pursuant to the TWCA be offset against the payments made under the Civil Servant Act, to prevent Adouble dipping@ by an injured police officer. City of San Antonio v. Vakey, 123 S.W.3d 497, 500 (Tex. App.CSan Antonio 2003, no pet.); Op. Tex. Att=y Gen. No. LO-93-62 (1993); Tex. Workers= Comp. Comm=n Appeal No. 021162-s, 2002 WL 1787730 (June 27, 2002). In applying the offset, the amount paid under section 143.073 is reduced, not the workers= compensation benefits. Vakey, 123 S.W.3d at 500. Through the interaction of these statutes, an injured police officer receives only one hundred percent of his or her pre-injury wage while on injured-on-duty leave of absence. Therefore, the reductions or offsets made to appellees= City payroll checks were not payroll deductions to reimburse the City for workers= compensation benefits received by each appellee, but rather ensured only that each appellee received the statutorily required one hundred percent of his or her pre-injury wages, and no more.[5]

C. The City is Entitled To Be Reimbursed for the Temporary Income Benefits Paid to Appellees.

In its Final Judgment, the trial court determined that while the City was entitled to be reimbursed for the workers= compensation temporary income benefits paid to appellees (amounting to approximately seventy percent of appellees= pre-injury wages), the appellees had already repaid the City for those benefits through the payroll deductions made to appellees= paychecks while they were on injured-on-duty leave of absence. However, as addressed above, the City was not reimbursed for the workers= compensation temporary income benefits paid to appellees through the payroll deductions. In fact, the City received no funds or payments as a result of the offsets or deductions made to appellees= payroll checks; instead, the reductions were made to ensure appellees received no more than their full pre-injury wages as guaranteed by section 143.073. Since the City was not reimbursed through the payroll deductions made to appellees= paychecks, pursuant to sections 417.001(b)[6] and 417.002(a)[7] of the Texas Labor Code, the City is entitled to be reimbursed from the third party recoveries made by appellees for all workers= compensation temporary income benefits paid to appellees.[8] Accordingly, we sustain the City=s second issue on appeal. In addition, we affirm the trial court=s Final Judgment to the extent it reimbursed the City from the third party recoveries the amounts the City paid for appellees= medical expenses arising out of appellees= on-the-job injuries.

D. The City is Entitled To Be Reimbursed for the Salary Continuation Payments Made to Appellees.

In its resolution of the case, the trial court determined the City was not entitled to be reimbursed for the thirty percent of appellees= pre-injury wages paid to appellees as required by section 143.073 and the City=s Salary Continuation Plan.[9] In reaching this conclusion, the trial court ignored the plain language of section 142.008 of the Texas Local Government Code. Section 142.008(a) specifically provides that a municipality is entitled to recover all benefits paid to a municipal employee under a salary continuation plan.[10] Therefore, the City is entitled to recover the amounts it paid appellees under the City=s Salary Continuation Plan from the appellees= third party recoveries. We sustain the City=s first issue on appeal.

 III. Did the Trial Court Abuse Its Discretion When It Awarded Appellees Attorney=s Fees Pursuant to the Declaratory Judgment Act?

In its Final Judgment, the trial court awarded appellees $79,751.25 in attorney=s fees. In addition, the trial court awarded appellees another $75,000.00 in attorney=s fees if the case were appealed to the court of appeals and the Texas Supreme Court. The City argues, also in the event the trial court=s judgment is reversed, these fees are inequitable and unjust and should be reversed. We agree with the City.

The Declaratory Judgment Act permits the trial court to award reasonable and necessary attorney=s fees as are equitable and just. Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 1998). The grant or denial of attorney=s fees in a declaratory judgment action is within the discretion of the trial court, and its decision will not be reversed on appeal absent a clear abuse of discretion. Sava Gumarska In Kemijska Industria D.D. v. Advanced Polymer Sci., Inc., 128 S.W3d 304, 323 (Tex. App.CDallas 2004, no pet.) (citing Oake v. Collin County, 692 S.W.2d 454, 455 (Tex. 1985)). The Declaratory Judgment Act does not require an award of attorney=s fees to the prevailing party, but merely provides that a court may award them. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). The Declaratory Judgment Act entrusts attorney fee awards to the trial court=s sound discretion, subject to the requirements that any fees awarded be reasonable and necessary, which are matters of fact, and to the additional requirements that the fees be equitable and just, which are matters of law. Id. at 20B21. Here, the City challenges the trial court=s award of attorney=s fees to

appellees only on the latter ground. Therefore, we must determine whether the trial court abused its discretion by awarding attorney=s fees that are inequitable or unjust. See id. In the exercise of its discretion, the trial court may award attorney=s fees to the non-prevailing party or decline to award attorney=s fees to either party. Sava Gumarska In Kemijska Industria D.D., 128 S.W3d at 323B24. As awarding attorney=s fees to the non-prevailing party is not in itself an abuse of discretion, the reversal of the trial court=s decision on a declaratory judgment does not necessarily mean the award of attorney=s fees to the party who prevailed in the trial court was an abuse of discretion. Id. at 324. However, after a declaratory judgment has been reversed on appeal, an award of attorney=s fees may no longer be equitable and just. Id.

Here, appellees= attorney testified he spent 243.7 hours, at a billing rate of $225.00 per hour, prosecuting this matter.[11] Appellees therefore incurred $54,832.50 in attorney=s fees for a case that culminated in a bench trial that: (1) lasted less than a full day; (2) involved the construction of clear statutory language; (3) involved few, if any, factual disputes; (4) involved a total amount in controversy of only $66,078.08;[12] and (5) resulted in the City being awarded some of the relief it requested in its Second Amended Answer and Plea to the Jurisdiction.[13] Nevertheless, the trial court awarded appellees $79,751.25 in attorney=s fees. In addition, the trial court, without conditioning the award on appellees= success, awarded appellees: (1) $30,000.00 for briefing and arguing an appeal to the court of appeals; (2) $15,000.00 if a petition for review is filed with the Texas Supreme Court; and (3) an additional $30,000.00 if the petition for review is granted.[14] Based on the above factors and our reversal of the trial court=s refusal to enforce the full amount of the City=s statutory liens, we find the trial court=s award of attorney=s fees to appellees is inequitable and unjust. Therefore, we sustain the City=s third issue on appeal, reverse the trial court=s award of attorney=s fees and costs to appellees and remand the award of attorney=s fees and costs to the trial court for reconsideration in light of the factors discussed above and the disposition of the case on appeal. Fitzgerald v. Antoine Nat=l Bank, 980 S.W.2d 228, 232 (Tex. App.CHouston [14th Dist.] 1998, no pet.).

Conclusion

Accordingly, we (1) reverse the trial court=s refusal to enforce the full amount of the City=s workers= compensation and salary continuation liens against appellees= third party recoveries; (2) reverse the award of attorney=s fees made to appellees, both for trial and appeal, pursuant to the Declaratory Judgment Act, Texas Civil Practices & Remedies Code section 37.009; (3) reverse the award of pre-judgment interest, post-judgment interest and costs to appellees; (4) remand the award of attorney=s fees and costs to appellees for reconsideration in light of the disposition of the case on appeal; (5) render judgment that the City recover $14,576.93 from Officer Soriano=s third party recovery, $13,319.15 from Officer Thomas= third party recovery, and $7,340.69 from Officer Pelrean=s third party recovery; and (6) affirm the remainder of the judgment.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed August 29, 2006.

Panel consists of Justices Anderson, Edelman, and Hudson.

[1] Appellee Carl Noon was unsuccessful in his claim against the third party allegedly responsible for his injuries, and therefore, the City of Houston=s claims against him are moot.

[2] Chapter 143 of the Texas Local Government Code contains the Fire Fighters and Police Officers Civil Service Act (ACivil Service Act@).

[3] Texas Local Government Code, section 143.073(a) provides: AA municipality shall provide to a fire fighter or police officer a leave of absence for an illness or injury related to the person=s line of duty. The leave is with full pay for a period commensurate with the nature of the line of duty illness or injury. If necessary, the leave shall continue for at least one year.@ Tex. Loc. Gov=t Code Ann. ' 143.073(a) (Vernon Supp. 2005).

[4] Texas Labor Code, section 504.051(a)(1)(A) provides: Benefits provided under this chapter shall be offset: (1) to the extent applicable, by any amount for incapacity received as provided by: (A) Chapter 143, Local Government Code. Tex. Lab. Code Ann. ' 504.051(a)(1)(A) (Vernon 1996).

[5] Appellees argue City of Corpus Christi v. Herschbach, 536 S.W.2d 653 (Tex. App.CCorpus Christi 1976, writ ref=d n.r.e.) confirms appellees were entitled to 170% of their pre-injury wages. However, while Herschbach does hold that the firefighter involved in that case was entitled to 170% of his salary while on injury leave of absence, the court=s decision was based on the fact the firefighter was only entitled to the double recovery because he received the challenged benefits before the legislature changed the law to permit the benefits to be offset. Herschbach, 536 S.W.2d at 657.

[6] Texas Labor Code, section 417.001(b) provides:

If a benefit is claimed by an injured employee or a legal beneficiary of the employee, the insurance carrier is subrogated to the rights of the injured employee and may enforce the liability of the third party in the name of the injured employee or the legal beneficiary. The insurance carrier=s subrogation interest is limited to the amount of the total benefits paid or assumed by the carrier to the employee or the legal beneficiary, less the amount by which the court reduces the judgment based on the percentage of responsibility determined by the trier of fact under Section 33.003, Civil Practices and Remedies Code, attributable to the employer. If the recovery is for an amount greater than the amount of the insurance carrier=s subrogation interest, the insurance carrier shall: (1) reimburse itself and pay the costs from the amount recovered; and (2) pay the remainder of the amount recovered to the injured employee or the legal beneficiary. Tex. Lab. Code Ann. ' 417.001(b) (Vernon Supp. 2005).

[7] Texas Labor Code, section 417.002(a) provides: AThe net amount recovered by a claimant in a third-party action shall be used to reimburse the insurance carrier for benefits, including medical benefits, that have been paid for the compensable injury.@ Tex. Lab. Code Ann. ' 417.002(a) (Vernon 1996).

[8] Appellees incorrectly argue that since there was allegedly no evidence that any of the appellees received any compensation from the third party tortfeasors for their loss of earning capacity sustained in the past, the City is not entitled to recover any portion of the third party recoveries made by appellees. The subrogation provisions at issue here do not make any distinction between the types of damages an injured party receives. Tex. Lab. Code Ann. '' 417.001, 417.002 (Vernon 2005); Tex. Loc. Gov=t Code Ann. ' 142.008 (Vernon 2005). The self-insured employer is subrogated to the rights of an injured employee and the net amount recovered by an employee in a third party action shall be used to reimburse the self-insured employer for benefits, including medical benefits, that have been paid for the compensable injury. See Argonaut Ins. Co. v. Baker, 87 S.W.3d 526, 530B31(Tex. 2002).

[9] To the extent the trial court=s decision relied on the requirement found in section 408.003 of the TWCA that an employee must make a written request for salary continuation before an employer may be reimbursed, that reliance is misplaced. Initially, neither section 143.073 or the City=s Salary Continuation Plan requires an employee to make a written request to be eligible for the benefit. In addition, there are more specific provisions of the TWCA that apply to police officers with respect to offsets and credits against their workers=compensation benefits. Since section 504.051(a) of the TWCA specifically addresses the income benefits paid to police officers pursuant to the Civil Service Statute and the TWCA, it controls over section 408.003. Tex. Gov=t Code Ann. '311.026 (Vernon 2005); Tex. Workers=Comp. Comm=n Appeal No. 021162-s, 2002 WL 1787730 (June 27, 2002).

[10] Texas Local Government Code, section 142.008(a) provides: AIf a municipality pays benefits to a municipal employee under a salary continuation program when the employee is injured, the municipality is subrogated to the employee=s right of recovery for personal injuries caused by the tortious conduct of a third party other than another employee of the same municipality.@ Tex. Loc. Gov=t Code Ann. ' 142.008(a) (Vernon 1999). In addition, the legislative history of section 142.008 establishes the legislature added the section to enable cities to proceed against third party tortfeasors for amounts actually paid to an injured employee in excess of amounts paid pursuant to workers= compensation law. Tex. Sen. Judiciary Comm., Bill Analysis, Tex. S.B. 438, 65th Leg., R.S. (1977). Appellees argue section 142.008 is inapplicable to the issue of whether the City is entitled to be reimbursed for sums paid to appellees by virtue of the City=s Salary Continuation Program and the Civil Service Statute as the two statutory provisions are found in different chapters of the Local Government Code (142 and 143). However, chapter 142, by its plain language, addresses benefits of all municipal employees, including police officers such as appellees.

[11] The City briefly cross-examined appellees= counsel on the issue of his attorney=s fees. However, none of the cross-examination questions addressed the number of hours he spent on the case.

[12] The $66,078.08.50 amount reflects the amount in controversy with Officer Noon still involved in the case. Without Officer Noon involved in the suit, the amount in controversy drops to $38,675.58.

[13] The City requested that it be awarded the full amounts it spent paying appellees=workers= compensation temporary income benefits; medical expenses; and salary continuation benefits out of the third party recoveries made by appellees. The trial court awarded the City the amount it spent on appellees= medical expenses, a total of $31,747.35, nearly half of the total amount in controversy.

[14] The trial court should have conditioned the award of appellate attorney=s fees upon a successful appeal to this court and the supreme court. Daugherty v. Jacobs, 187 S.W.3d 607, 620 (Tex. App.CHouston [14th Dist.] 2006, no pet.)