Arturo Schoonewolff v. Van Choate, Tuffy's, Inc., and Hushpuppies, Inc.

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00148-CV
________________

ARTURO SCHOONEWOLFF, Appellant

V.

VAN CHOATE, TUFFY’S, INC., AND HUSHPUPPIES, INC., Appellees

________________________________________________________________________

On Appeal from the 163rd District Court
Orange County, Texas
Trial Cause No. B190158-C
________________________________________________________________________

MEMORANDUM OPINION

Arturo Schoonewolff (“Schoonewolff”) sued his employer, Van Choate

(“Choate”), and Choate’s solely owned corporations, Tuffy’s, Inc. (“Tuffy’s)1 and

Hushpuppies, Inc. (“Hushpuppies”) 2 (collectively, “Appellees”) for violating the

1Exhibits in the record list the name of this entity alternately as “Tuffys,”

“Tuffy’s Inc.,” or “Tuffys Inc.”
2Exhibits in the record list the name of this entity alternately as “Hushpuppie

Seafood Inc” or “Hushpuppy Seafood Inc.”
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Fair Labor Standards Act (“FLSA”). He sought $239,041.16 for three years of back

pay and overtime, attorney’s fees, and costs. Following a bench trial, the trial court

entered a Final Take Nothing Judgment from which Schoonewolff appeals. In three

issues, Schoonewolff asks whether: (1) he was a non-exempt employee as a matter

of law; (2) he ever performed work for which he was not properly compensated; and

(3) the trial court erred in ruling that he failed to provide sufficient evidence to

support his claim for unpaid overtime under the Fair Labor Standards Act (“FLSA”)

when the evidence conclusively establishes the opposite. As discussed below, we

affirm the trial court’s judgment.

BACKGROUND

Choate owned several restaurants over the years, including Tuffy’s and

Hushpuppies. Schoonewolff began working for Choate in 1999. Schoonewolff

alleges that from 2016 through early 2019, Choate violated the FLSA by failing to

pay him overtime. In 2016 and 2017, Schoonewolff worked for Hushpuppies, which

was in Port Arthur, and in 2017, he began working for Tuffy’s in Mauriceville. His

duties were the same at Tuffy’s and Hushpuppies. Both Tuffy’s and Hushpuppies

had separate divisions, a restaurant division and a catering division. The restaurant

division served customers “home cooked” meals in the restaurant, whereas the

catering division handled “pre-cooked” foods that simply needed to be prepared and

were typically delivered to local refineries.

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During the relevant timeframe, Schoonewolff was a salaried employee.

Appellees contend that he ran the catering division and was an exempt employee, so

he was not entitled to overtime pay. At trial, Appellees witnesses disputed that

Schoonewolff worked the hours he claimed during the relevant period and that he

was improperly compensated. Schoonewolff disputes that he is an exempt employee,

and asserts he worked overtime from 2016 through early 2019, when he quit, for

which Appellees failed to pay him overtime. Thus, he contends that Appellees

violated the FLSA.

The parties tried the case to the bench.

Trial Evidence

Testimony of Van Choate

Choate testified that Schoonewolff began working for him in 1999, when they

took over the Cajun Cookery together, but that restaurant closed after Hurricane Rita.

He also owned Tuffy’s, Inc. and Hushpuppies, Inc., and Schoonewolff worked for

each company at different times. In 2016, Schoonewolff worked only for

Hushpuppies, in 2017, he worked for Hushpuppies and Tuffy’s, and in 2018, he

worked only for Tuffy’s. Choate’s wife handled the restaurants’ business and

financial affairs, and Choate handled daily operations. Without specifying the

restaurant, Choate testified that Schoonewolff’s duties included inventory, cooking,

food preparation, and reporting to Choate. He explained that Schoonewolff did not

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work in the Tuffy’s restaurant, because he could not read English and take orders.

Choate testified that during the relevant period, Choate had a distinction between the

restaurant business and catering business, Schoonewolff was over catering and only

reported to Choate.

Schoonewolff’s duties at Tuffy’s included cooking for the catering side of the

business and cleaning. Choate testified that sometimes Schoonewolff cleaned the

kitchen and took out the garbage for Tuffy’s restaurant and did things for the

businesses outside the catering realm but did not specify a timeframe. He testified

that Schoonewolff used the Tuffy’s kitchen for the catering business, and he was

supposed to have it cleaned and ready for the restaurant employees by the time they

arrived at work around 8:30 a.m. Choate testified that Schoonewolff cooked the

catering meals from 5:30 a.m. until 8 a.m. Monday through Friday, and his other

duties included putting the catering food in warmers so the hourly employees could

package it. If Schoonewolff completed his duties, he would be done around 1 p.m.,

which was about seven and a half hours, but he had no set schedule; however,

Schoonewolff stopped completing his duties. Choate testified that when

Schoonewolff left, Choate took over the catering division, and it normally took him

only three to four hours to do all the work Schoonewolff did. Choate testified he did

not “track” Schoonewolff, so he did not care if it took one hour or five to get the

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work done as long as it was done. Schoonewolff was not completing the job, though,

and the restaurant’s cooks were “irate.”

Choate handled the contracts with the catering customers, pricing, invoicing,

and built the quotes in consultation with Schoonewolff. Choate testified that

Schoonewolff hired people for the catering business, told Choate how many people

he needed for a job, and Schoonewolff would let them go after each job. Choate said

that he approved the termination decisions based on Schoonewolff’s

recommendations and never reversed Schoonewolff’s staffing decisions.

Choate testified they paid time and a half to hourly employees who worked

more than forty hours per week. He said that Schoonewolff was never required to

receive overtime pay, and although Schoonewolff’s pay stubs showed he worked

forty hours every week, Schoonewolff was always a salaried employee and never

considered an hourly employee. Choate explained that Schoonewolff’s pay stubs

always showed forty hours, because that is how the accountant’s software wrote the

checks when employees were salaried. When determining Schoonewolff’s job

designation, a lawyer and CPA advised Choate regarding Schoonewolff’s status.

Based on that advice, Choate felt it was appropriate to pay Schoonewolff a salary.

Schoonewolff was involved in the conversations and agreed to be paid a salary.

All the other employees in the restaurant except Choate, his wife,

Schoonewolff, and the kitchen manager were hourly workers. Occasionally,

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Schoonewolff helped with catering events on the weekend, but when he did, Choate

always paid him extra, sometimes with cash and sometimes with check. He

explained that if there was not a refinery turnaround, the catering volume was much

less during the relevant period. Even if Schoonewolff prepared all the meals that

day, Choate testified, “No way it should take him” eight hours, “and I know it

wouldn’t take me that long.” Choate was at the restaurant every day and denied that

Schoonewolff worked the hours he claimed. Choate testified that Schoonewolff

worked on catering only and had “[z]ero” restaurant duties. Choate said that he was

in the restaurant with Schoonewolff, and Schoonewolff’s testimony where he

claimed to have worked from 2 a.m. until 11 p.m. except breakfast and an hour at

lunch was untrue.

Choate testified that Schoonewolff’s primary duty was managing catering,

which was a separate division from Tuffy’s and Hushpuppies. Choate agreed that

most of Schoonewolff’s work between 2016 and 2019 involved blue collar duties,

like food preparation, cleaning, and taking out the garbage versus the administrative

stuff for catering. Choate testified that Schoonewolff regularly directed the work of

two or more full-time employees. Schoonewolff began making $800 per week in

2018.

Choate never controlled Schoonewolff’s hours, and Schoonewolff took off as

many as his schedule allowed. Choate testified he did not care what Schoonewolff

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did if he finished his duties. He disagreed that Schoonewolff worked more than forty

hours per week at Tuffy’s from 2017 to present. Nevertheless, he testified that there

were times outside the relevant period when Schoonewolff worked more than forty

hours a week and he was not paid overtime, because he was paid a salary. He also

agreed there were times when Schoonewolff worked seven days a week depending

on how the catering jobs played out, and sometimes he worked on Sunday, “if he

didn’t complete his duties[.]” Choate did not know when Schoonewolff started

working in the mornings, but by 7 or 7:30 the food was cooked, and “in an hour to

two hours at the most, Schoonewolff could have his stuff done.” Choate explained

that when Schoonewolff finished cooking about 8 or 8:30 a.m., he should have

handled clean up from the catering so the restaurant kitchen crew could come in,

which would take about another hour. After that, Schoonewolff left the restaurant.

Choate testified that most days, Schoonewolff left by 8:30 a.m., despite having a

responsibility to be there on call for Choate, and this continued until Schoonewolff

quit.

Choate said that Schoonewolff never asked for overtime, and Tuffy’s had a

clock for hourly employees that tracked whether they were entitled to overtime.

Schoonewolff knew about this clock and could have used it but never did. Choate

testified that his wife asked Schoonewolff to use the clock, because she did not

believe he worked eight hours per day, but he became upset and refused. He said

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that Schoonewolff left work for hours each day to go across the street and do other

things. When Schoonewolff quit, he was not completing the required cleaning,

which caused problems when the restaurant employees arrived and found a mess.

The restaurant employees were unhappy, and eventually, Choate’s wife began

washing dishes, and Choate began taking out the trash. The cleaning up would have

been within Schoonewolff’s work hours, if he worked eight hours a day. Choate

testified he made one statement to Schoonewolff about cleaning up, and

Schoonewolff became very angry and quit immediately. Two weeks later,

Schoonewolff asked for his job back, but Choate did not rehire him.

Choate provided Schoonewolff a place to live on the Tuffy’s premises for free

and paid his utilities, as well as provided him food. Although Schoonewolff lived on

the premises, Choate disputed that he was available around the clock for work.

Testimony of Arturo Schoonewolff

Schoonewolff is from Honduras and in 1998, he came to the United States and

obtained a work permit. Schoonewolff worked for Choate from 1999 until early

2019. Choate hired him for his first job in the United States in 1999 at the Cajun

Cookery. When he worked at the Cajun Cookery, he did food preparation, cleaning

and cooking and worked in the catering business, but Cajun Cookery was damaged

in 2005 during Hurricane Rita and closed. Schoonewolff continued working for

Choate after the Cajun Cookery closed and worked for him when he opened Tuffy’s

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the first time in 2005. Schoonewolff testified that he worked for Hushpuppies

catering business in 2016 and 2017, and they prepared food for refineries. In 2017,

his paycheck changed from Hushpuppies to Tuffy’s.

Schoonewolff testified that at Hushpuppies catering, “there was not a set shift;

but the earliest that I would get up so that everything that had to be done would get

done that would be 2:00 a.m.” When he arrived at 2 a.m. at Hushpuppies, he prepared

the food for that day’s catered lunch plates. Sometimes preparing and cooking,

depending on the quantity, took three to four hours, but “but six hours for

everything.” He testified that if he got up at 2 a.m., he was through at 8 a.m.

Schoonewolff said that at 8 a.m., the ladies came and washed dishes. Then, he started

preparing for the next day when the ladies left to deliver food around 10:30 a.m.

When he began preparing food for the next day at 10:30, it took him five to six hours,

but he took a break for an hour or two around 1 or 2 p.m., so he finished preparing

the food at 6 or 7 p.m. After that, he sometimes washed dishes and quit working

about 7 or 8 p.m. He went to sleep between 8 and 10 p.m. and stayed in a motorhome

at the restaurant, which Choate furnished.

Schoonewolff moved from Port Arthur to Mauriceville in October 2017 to

work at Tuffy’s. At Tuffy’s, they continued delivering meals to the refineries. He

testified that at Tuffy’s, “there was not an established time for him to” start working,

and sometimes, he would get up at 1 or 2 a.m. Beginning in 2019, he saw Choate

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almost every day, but in 2017 and 2018, he only saw Choate about three or four

times a week. In the mornings, Schoonewolff usually saw Choate between 7 and 8

a.m., and if he started at 2 a.m., he worked six or seven hours before he saw Choate.

In the mornings, for the catering business, he prepared the machine to cook, and he

put the pre-prepared foods into the machine to cook them. He explained that he

cooked meat the day before, which he warmed with the pre-prepared food in the “pit

machine” which took two to three hours. The food had to be ready to plate by 9 a.m.

In the seven hours between 2 a.m. and 9 a.m., he prepared for the next day to

“gain time.” Sometimes, a lady came to help him at 6 a.m., but he worked by himself

before she arrived. At 9 a.m., the ladies plated the food, which took an hour to an

hour and a half, then they delivered it to the plants. Sometimes, he helped with the

plates. When they finished the plates at 10 or 10:30 a.m., he received merchandise,

cleaned, and took out the trash, which took two to three hours.

He claimed that when he finished the catering work, he worked on the

restaurant side cooking shrimp and crawfish, preparing oil and sauces, preparing

batter for the fish, and cooking gumbo, although the restaurant had its own cook and

manager. He testified that sometimes he went to the deli across the street at 6 a.m.

before the others arrived and again in the afternoon. In the morning, he bought

breakfast at the deli but stayed “no more than 20 minutes[,]” although he later

contradicted this by claiming he stayed no longer than an hour. When he went to the

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deli in the afternoon, he stayed an hour to an hour and a half and ate. Schoonewolff

testified that starting at Tuffy’s in October 2017, Monday through Friday, he worked

fourteen to fifteen hours per day. He said he stopped working at 1 or 2 p.m., then

returned later to work six or seven more hours; sometimes he “would have to work

all the way to 11 at night because there was lots of work.” On most days, though, he

stopped working at 8 p.m. Schoonewolff testified that he worked nearly every

Saturday, too, and there were special catering jobs. This seemingly contradicted his

initial testimony that he did this only “sometimes.” He then testified he worked two

Saturdays per month. Schoonewolff testified he worked every Sunday preparing the

food for Monday, which took four to five hours. He claimed this was the same at

Tuffy’s and Hushpuppies. Elsewhere, he testified that he worked on the weekends

“[f]from time to time.” He said he also worked during the night to prepare food for

the next day. He said he worked more hours than anyone else at Tuffy’s.

Schoonewolff denied that he ordered the food, prepared the menus or told

Choate what to order. Schoonewolff also denied that from 2016 to 2019, he hired or

fired anyone in the catering business or told Choate who to hire or fire. Schoonewolff

denied that Mrs. Choate asked him to use the time clock. He also denied that Choate

asked him to use the clock, but Schoonewolff knew it was there and that was how

Choate determined overtime. He claimed he asked Choate if he could punch the

clock at Hushpuppies and Tuffy’s. He considered himself an hourly employee but

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never documented the hours he claimed he worked overtime or gave it to Choate.

Schoonewolff said he could not provide a date that he worked overtime and was not

paid, because “it was practically all during the time that I worked with him.”

Ultimately, he testified that he worked overtime every day for nineteen years.

Schoonewolff said he worked every day from 2 a.m. to 11 p.m. after he came from

Port Arthur to Tuffy’s, although he immediately contradicted this and said he did

not work every day from 2 a.m. to 11 p.m. Elsewhere, he testified that he worked

from 2 a.m. to 11 p.m. most days. He inconsistently testified that he slept three hours

per night, then on average four to five hours per night. He also did not seem to

understand the relevant time in question was 2016, 2017, and 2018.

Schoonewolff denied he was paid a salary and claimed the amount he received

each week varied. He contradicted this testimony and said he received the same

amount every week, minus taxes, and he never reported other income on his tax

return, including the trailer, monthly utilities, and food Choate provided. When he

quit, he made $800 per week. Schoonewolff’s pay was never reduced for rainouts or

holidays they did not work. He testified he napped “here and there” but denied it was

every day, although his salary was never reduced for the naps.

Schoonewolff said he might have had holidays off but did not take any

vacation between 2016 and 2019. Schoonewolff quit working for Choate in February

2019, because he claimed that Choate “disrespected” his mother. He disputed

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Choate’s testimony that just because he lived there did not mean he worked all the

time and claimed he worked “the majority of the time.”

Testimony of Wendy Bonilla

Wendy Bonilla (“Bonilla”) worked with Schoonewolff at Hushpuppies

catering in Port Arthur for about two years ending in 2015. She did not remember

the hours she worked when testifying but looked at an earlier statement she gave and

said she worked from 4 a.m. to 4 or 5 p.m. sometimes six days a week and when she

worked, Schoonewolff was always with her. She was an hourly employee and did

not recall who hired her but testified she worked with Schoonewolff for Choate.

Bonilla testified that she worked when Schoonewolff told her, and he was her boss

or supervisor. She testified that Schoonewolff never left during the day while she

was there.

Testimony of Brenda Castro

Brenda Castro (“Castro”) operated a deli in the gas station across the street

from Tuffy’s. She testified that Schoonewolff began as a client but is now her friend

and “like a father” to her. In 2017, she worked at the deli from 4 a.m. to 8 p.m. five

days per week. She testified that in 2017, when she arrived at work at 4 a.m., she

saw Schoonewolff every day; he was outside throwing out the garbage.

Schoonewolff did not come to the deli for breakfast every day, but when he did, he

came around 6 a.m. and stayed no more than five minutes. He returned around noon,

13
ate and rested for about thirty-five minutes to an hour. She saw him through the gas

station windows across the street “washing out the mop” or doing other things. She

also saw him putting out the trash when she left in the evenings around 8 p.m.,

“practically every day, the majority of the time.” She could not say what he did

inside Tuffy’s the rest of the day. She did not know what he did on Saturday or

Sunday. Once in 2018, she went to Tuffy’s to help Schoonewolff prepare 300

burritos, because he was not feeling well. She denied that Schoonewolff did any

work in the deli while he worked for Choate, but after he left, he helped in the Deli

sometimes.

Testimony of Josette Choate

Josette Choate (“Josette”), Van Choate’s wife, also testified.3 Josette testified

that she managed servers, cashiers, hostesses and did accounts payable and

receivables, while her husband oversaw the kitchen staff and catering. From 2016

until Schoonewolff left, she was with Hushpuppies or Tuffy’s full time. She

explained that some refinery catering jobs were done through both Hushpuppies and

Tuffy’s, but they closed Hushpuppies completely at the end of 2017, then all the

catering business was transferred to Tuffy’s.

Josette explained that they divided the restaurant from the catering, and

Schoonewolff ran the catering division. Other than input about where to deliver the

3For purposes of clarity, we refer to Mrs. Choate by her first name.

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clients and the menu, he took care of everything else. She said that he hired and fired

people, which they never reversed. When he quit, Schoonewolff made $800 per

week.

Josette testified that Schoonewolff normally arrived first to the restaurant. She

usually arrived at the restaurant around 7 or 8 a.m. Choate arrived earlier than she,

and the baker arrived at 6 a.m. The cooks for Tuffy’s restaurant arrived at 8 or 8:30

a.m. She did not know when Schoonewolff started preparing the catering food,

because he did not punch a clock, had “an open schedule[,]” and “worked when he

needed to work; and when he was not needed to work he didn’t work.” Josette and

Choate “had a big disagreement” because she wanted Schoonewolff to punch the

clock like everyone else to have a record of the hours he worked. She disputed that

Schoonewolff worked from 2 a.m. to 11 p.m. most days and explained why that was

impossible. Josette said that she closed the restaurant most nights at 11 p.m., and he

was never there cleaning nor preparing for the next day when she did. Tuffy’s was

open until 9 p.m. every night except Sundays, when they closed at 4 p.m.

There was no room in the kitchen for the restaurant staff and the catering staff

to work at the same time; catering orders were done before. Since Schoonewolff did

his catering work in the same kitchen the restaurant used, if he worked as he claimed,

he would be in the restaurant, but she never saw him except on special jobs. Josette

testified there were some special catering jobs when he worked extended hours, “but

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not on a normal day-to-day schedule.” Although there may be exceptions,

Schoonewolff worked significantly less than eight hours most days, and overpaying

Schoonewolff caused issues in the Choates’ marriage. She said that Schoonewolff

could not work as he described without them seeing it, because it would have

occurred in the restaurant kitchen.

They paid Schoonewolff more than the restaurant manager, and Josette tried

to get Choate to have him return during dinner service to help with the dishes, but

Choate was “very adamant about keeping the two separated.” She explained that

whatever hours it took Schoonewolff to finish the job was what he was expected to

work, and the weeks he worked more than forty hours, they paid him “extra” as a

“bonus” but not at an hourly rate. Josette testified that if Schoonewolff streamlined

his time, he would not normally work over eight hours a day.

She also denied that he handmade foods for the restaurant and explained that

some of the foods he described making were at the Cajun Cookery and the first time

they owned Tuffy’s between 2005 and 2010. He never worked in the restaurant

during the relevant period and was separate from the restaurant. She explained that

he could not read English well enough to cook and keep up with the orders on a

dinner service or lunch service.

They relied on a clock to determine whether somebody worked overtime. She

testified that she asked Schoonewolff to punch a clock and explained that every

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point-of-sale system they had could act as a time clock, which Schoonewolff was

“very familiar with[.]” She even set his code as his birthday so he could clock in

easier, “and it just did not happen.” She testified that everybody that entered the

door, including their kitchen manager, punched a time clock, except Schoonewolff.

Josette testified that in the nineteen years he worked for them, Schoonewolff

was never an hourly employee. They wanted to ensure he had a set income amount

no matter what he worked, and many weeks, he did not work forty hours. When they

set up their business, they consulted lawyers and CPAs and were under the good-

faith belief it was appropriate for Schoonewolff to be salaried. After consulting

various experts, she believed it was appropriate to have people in the restaurant who

have managerial duties as salaried, which is what other restaurants do.

Most of the time, Choate was the only one who drew a salary, and Josette

worked for free. Other than Choate, Schoonewolff was the highest paid employee at

Tuffy’s and Hushpuppies during the relevant time. Schoonewolff never told them he

felt he was entitled to overtime pay and had never told them he worked overtime at

all.

Josette explained that once Schoonewolff completed his catering duties, he

had no other duties, although there were some exceptions where they had big

catering jobs. They were only “really busy” for refinery turnarounds that happened

twice a year and lasted four to six weeks, so when Schoonewolff said he prepared

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200 to 400 meals, that was for turnarounds, not the entire three years. The rest of the

time, the catering business was light. Josette testified there was no catering on

Friday, Saturday or Sunday. She disputed that he worked on Fridays, Saturdays, and

Sundays, and that he was preparing food sixteen hours a day, seven days per week,

because they “did not have the business to support that.” She did not believe he

routinely worked even eight hours a day unless they had a big catering job. She

described where he spent much of his days, including a “little makeshift office” in a

storage room off the side of their banquet room using his laptop, but he was not

working. Josette testified Schoonewolff could work at his leisure, but if he was

working all those hours, she or Choate would have structured his schedule.

Josette testified that toward the end of Schoonewolff’s employment, she

questioned Choate, because she felt Schoonewolff was overpaid. Josette testified

they provided Schoonewolff with other benefits, including satellite television

service, so he had Spanish channels, internet service, and a laptop. Once, she figured

the financial value of the additional benefits was “12 to $1500 a month just for the

rent, compared to what he paid before with the electricity, water, sewer, internet,

food, and clothing.”

Josette discussed her understanding of why Schoonewolff quit. They received

complaints from the restaurant staff that when they arrived at 8 or 8:30 a.m., the

kitchen was dirty and that Schoonewolff left a mess. They complained they did not

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have time to clean for him. When Choate approached him about it and told him he

needed to stay and clean the dishes, Schoonewolff became angry, took off his apron,

and quit. The first time that she ever heard Schoonewolff quit because Choate

disrespected his mother was during trial. She said that was the first time Choate acted

authoritatively with Schoonewolff, and Schoonewolff acted out and said things he

did not mean. Two weeks later, he returned and asked for his job back, but Choate

did not give it back to him.

Testimony of Michael DuBois, CPA

Michael DuBois (“DuBois”) testified that he was the CPA for Tuffy’s,

Hushpuppies, and the Choates. He handled the taxes and CPA documents for Tuffy’s

and Hushpuppies and did their payroll. DuBois performed the CPA work for the

restaurants from the beginning. They were set up as a restaurant and catering

business.

DuBois had seen Schoonewolff’s name on timesheets and payroll records and

brought records with him to trial to refresh his recollection during trial. He testified

that Schoonewolff was always classified on the timesheet as a salaried employee.

DuBois explained that meant Schoonewolff was in a “supervisory capacity” and was

“catering manager.” He described the differences between salaried and hourly

employees including “supervisory capacity, manage, . . . manage people, hire and

fire, that type of stuff.”

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DuBois had to obtain documents to file proper tax returns, which included that

Schoonewolff was salaried. He testified that there were a couple of managers who

were salaried, including the restaurant manager. When addressing the reason why

Schoonewolff’s pay stub always showed forty hours, he explained that his payroll

software shows forty hours on their pay stub even if they are salaried. He testified

that with the software, they entered salary and that was how they prepared payroll

every two weeks. DuBois said that if Schoonewolff was an hourly employee, the pay

stub would not always show forty hours and would instead show the hours he

actually worked. Timesheets were faxed over every week to prepare payroll, and “at

the bottom of every time sheet, it’s marked that he was a salaried employee with no

hours.” He testified that in virtually every restaurant, there were salaried employees

and hourly employees. He did not know that the FLSA required salaried employees

to be paid overtime if they worked more than forty hours per week, but he had never

seen a salaried employee get paid for overtime in all the businesses he worked for.

Other Evidence

Additional evidence admitted at trial included: Schoonewolff’s pay stubs;

payroll records; Tuffy’s tax return; Hushpuppies’ tax return; Choate’s affidavit; and

catering invoices.

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Trial Court’s Judgment and Findings of Fact and Conclusions of Law

The defendants moved for directed verdict after Schoonewolff finished

presenting his evidence and argued there was insufficient evidence to determine that

Schoonewolff worked overtime. The trial court initially denied the motion but asked

for additional briefing on the FLSA after the evidence closed. The trial court later

entered a take nothing judgment for Choate, Tuffy’s, and Hushpuppies. In a letter

explaining its ruling, the trial court noted that “Schoonewolff has failed to provide

sufficient evidence that he performed work for the defendants for which he was not

compensated[,]” and “further finds that there was insufficient evidence for the court

to draw a reasonable inference as to the specific amount of time the plaintiff worked

each day for the defendant.” The court also found that

the plaintiff’s testimony was inconsistent as to hours he worked and
failed to provide the proper details to show any overtime worked, much
less the specific amount. Mr. Schoonewolff testified, at different times,
that it would take 2 hours to prepare food, 3 hours to prepare food, 4
hours to prepare food and 5 hours to prepare food. Mr. Schoonewolff
further testified that he worked from 2:00 a.m. to 11:00 p.m. leaving
him 3 hours to sleep each night for over 3 years. The court finds this
testimony unbelievable and unreliable especially when you consider the
details of the work that was brought to the court’s attention. These are
just a few examples of Mr. Schoonewolff’s testimony that the court
used to base its decision. The further testimony that the plaintiff was
not in the kitchen of Tuffy’s restaurant during it’s [sic] normal
restaurant hours further leads to the believability of the defendant’s
testimony that the plaintiff was able to complete his work in a time
frame that did not require overtime hours to be worked.

21
At Schoonewolff’s request, the trial court issued Findings of Fact and

Conclusions of Law, which provide in pertinent part:

Findings of Fact
16. The court found that Plaintiff Arturo Schoonewolff failed to provide
sufficient evidence that he performed work for the Defendants for
which he was not compensated.
17. The court found there was insufficient evidence presented by
Plaintiff for the court to draw a reasonable inference as to the specific
amount of time Plaintiff worked each day for Defendants.
18. The court found that Plaintiff’s testimony was inconsistent as to the
hours he worked and failed to provide proper details for the overtime
worked or specific amounts.
19. The court found Plaintiff’s contention that he would work from 2:00
a.m. until 11:00 p.m. leaving him three hours to sleep each night for
three years to be not believable and unreliable in light of the evidence
of the details of his work and the evidence that he was not working in
the restaurant during its normal restaurant hours.
20. The court found, based on the evidence, Plaintiff was able to
complete his work in a time frame that did not require overtime hours.
21. The court found it not necessary to rule on the other defenses raised
by Defendant.
...
Conclusions of Law
1. The court had jurisdiction to hear this lawsuit as stipulated by the
parties.
2. An employee who brings suit under the FLSA for overtime
compensation has the burden of proving that he performed work for
which he was not properly compensated.
3. The burden is met by proof that he has in fact performed work for
which he was not properly compensated and by sufficient evidence to
show the amount and extent of that work as a matter of just and
reasonable inference.
4. The burden then shifts to the employer to come forward with
evidence of the precise amount of work performed, or with evidence to
negate the reasonableness of the inference to be drawn from the
employee’s evidence.

22
5. If the employer fails to produce such evidence, the court may then
award damages to the employee even though the result may be only
approximate.

Schoonewolff timely appealed.

STANDARD OF REVIEW

In a bench trial, the trial court, as factfinder, is the sole judge of the witnesses’

credibility and weight of the evidence and is tasked with resolving conflicts in the

evidence and drawing reasonable inferences from basic facts to ultimate

facts. See City of Keller v. Wilson, 168 S.W.3d 802, 819–21 (Tex. 2005); Sw. Bell

Tel. Co. v. Garza, 164 S.W.3d 607, 625 (Tex. 2004) (citation omitted); see also

Morrell v. Morrell, No. 09-20-00086-CV, 2022 WL 959943, at *12 (Tex. App.—

Beaumont Mar. 31, 2022, pet. denied) (mem. op.). The factfinder may choose to

believe one witness over another, and we do not substitute our judgment for the

factfinder’s. See Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex.

2003) (discussing in context of a jury trial); see also Morrell, 2022 WL 959943, at

*12. When a trial court makes specific findings of fact and conclusions of law after

a bench trial and a reporter’s record is before the appellate court, we sustain the

findings if evidence supports them, and we will review the legal conclusions drawn

from the facts to determine their correctness. See BMC Software Belgium, N.V. v.

Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Morrell, 2022 WL 959943, at *12.

“Findings of fact ‘have the same force and dignity’ as a jury’s verdict and are

23
reviewable under the same standards of legal and factual sufficiency.” Foley v.

Capital One Bank, N.A., 383 S.W.3d 644, 646 (Tex. App.—Houston [14th Dist.]

2012, no pet.) (quoting Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.

1991)); see Morrell, 2022 WL 959943, at *12 (citation omitted).

In a legal sufficiency challenge, we credit evidence that favors the finding, if

a reasonable factfinder could, and we disregard evidence contrary to the challenged

finding unless a reasonable factfinder could not disregard it. See City of Keller, 168

S.W.3d at 827. When a party attacks the legal sufficiency of an adverse finding on

an issue which he has the burden of proof, he “must demonstrate on appeal that the

evidence establishes, as a matter of law, all vital facts in support of the issue.” Dow

Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (citation omitted). When we

review a “matter of law” challenge, we must first examine the record for evidence

that supports the finding, while ignoring all evidence to the contrary. See id.; see

also Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989). If no evidence

supports the finding, the reviewing court will then examine the entire record to

determine whether the contrary proposition is established as a matter of law. See

Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767 S.W.2d at 690. The point of error

will be sustained only if the contrary proposition is conclusively established. See

Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767 S.W.2d at 690.

24
In a factual sufficiency review, we examine all the evidence, and we will set

aside the judgment if it is so contrary to the overwhelming weight of the evidence as

to be clearly wrong and unjust. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986);

see also Unimex Logistics, LLC v. Tim Neff Towing, Inc., No. 09-16-00275-CV,

2018 WL 2339623, at *4 (Tex. App.—Beaumont May 24, 2018, no pet.) (mem. op.)

(citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). Unlike a legal-

sufficiency review, a factual-sufficiency review requires us to review all the

evidence in a neutral light. See Cain, 709 S.W.2d at 176.

“We review a trial court’s conclusions of law as legal questions, de novo, and

will uphold them on appeal if the judgment can be sustained on any legal theory

supported by the evidence.” Morrell, 2022 WL 959943, at *12 (citing BMC Software

Belg., 83 S.W.3d at 794); see also Hegar v. Am. Multi-Cinema, Inc., 605 S.W.3d 35,

40 (Tex. 2020). If we determine a conclusion of law is erroneous, we will not reverse

if the trial court rendered the proper judgment. See BMC Software Belg., 83 S.W.3d

at 794; see also City of Austin v. Whittington, 384 S.W.3d 766, 779 n.10 (Tex. 2012)

(citation omitted).

ANALYSIS

We begin our discussion with issues two and three, because whether we

address issue one and the affirmative defense that Schoonewolff was an exempt

employee depends on our ruling on each of those issues. In issue two, Schoonewolff

25
asserts that we should reverse the trial court’s judgment because he provided

sufficient evidence to support his claim for unpaid overtime under the FLSA. In issue

three, he complains that the trial court erroneously applied the “just and reasonable

inference” test and that he has conclusively established his claim for unpaid

overtime. In support of these issues, he challenges specific findings the trial court

made. We address these issues together, as the evidence necessary to their resolution

overlaps.

FLSA and Applicable Law

Schoonewolff sued for unpaid overtime under the FLSA. See 29 U.S.C. §

216(b) (outlining cause of action and allowable damages). The FLSA states,

Except as otherwise provided in [section 207], no employer shall
employ any of his employees ... for a workweek longer than forty hours
unless such employee receives compensation for his employment in
excess of the hours above specified at a rate not less than one and one-
half times the regular rate at which he is employed.

Id. § 207(a)(1); Tooker v. Alief Indep. Sch. Dist., 522 S.W.3d 545, 560 (Tex. App.—

Houston [14th Dist.] 2017, no pet.) (citation omitted). “‘An employer who is armed

with [knowledge that an employee is working overtime] cannot stand idly by and

allow an employee to perform overtime work without proper compensation, even if

the employee does not make a claim for the overtime compensation.’” Harvill v.

Westward Commc’ns, L.L.C., 433 F.3d 428, 441 (5th Cir. 2005) (alteration in

original) (quoting Newton v. City of Henderson, 47 F.3d 746, 748 (5th Cir.1995)).

26
When an employee does not notify the employer or deliberately prevents the

employer from acquiring knowledge of the overtime work, the employer’s failure to

pay overtime hours is not a violation of section 207. Id. (citation omitted). An

employee bringing an FLSA claim based on unpaid overtime compensation, must

first demonstrate that he has performed work for which he alleges he was not

compensated. See id. An employee meets his requisite burden of proof

if he proves that he has in fact performed work for which he was
improperly compensated and if he produces sufficient evidence to show
the amount and extent of that work as a matter of just and reasonable
inference. The burden shifts to the employer to come forward with
evidence of the precise amount of work performed or with evidence to
negat[e] the reasonableness of the inference to be drawn from the
employee’s evidence. If the employer fails to produce such evidence,
the court may then award damages to the employee even though the
result may be only approximate.

Id. (emphasis added) (quoting Anderson v. Mount Clemens Pottery Co., 328 U.S.

680, 687–88 (1946), superseded by statute, Portal-to-Portal Act of 1996, Pub. L. No.

104-188, 110 Stat. 1928, as recognized in Integrity Staffing Sols., Inc. v. Busk, 574

U.S. 27, 36 (2014)). In other words, “‘[u]nder the FLSA, an employer must pay

overtime compensation to its non-exempt employees who work more than forty

hours a week.’” White v. Patriot Erectors, L.L.C., No. 23-50524, 2024 WL 3181455,

at *3 (5th Cir. June 26, 2024) (quoting Faludi v. U.S. Shale Sols., L.L.C., 950 F.3d

269, 272 (5th Cir. 2020)).

27
A plaintiff’s burden is “easily discharged” to prove his damages of

uncompensated overtime work when an employer keeps accurate records of the

employee’s records required by the FLSA. Id. (quoting Flores v. FS Blinds, L.L.C.,

73 F.4th 356, 362 (5th Cir. 2023)). The Supreme Court developed a burden-shifting

framework that applies when an employer fails to keep records, or they are

inaccurate or inadequate. See id. (citation omitted).

An employee bringing an action for unpaid overtime compensation
must first demonstrate by a preponderance of the evidence: (1) that
there existed an employer-employee relationship during the unpaid
overtime periods claimed; (2) that the employee engaged in activities
within the coverage of the FLSA; (3) that the employer violated the
FLSA’s overtime wage requirements; and (4) the amount of overtime
compensation due.

Once the employee establishes a prima facie case, the burden then shifts
to the employer to “come forward with evidence of the precise amount
of work performed or with evidence to negative the reasonableness of
the inference to be drawn from the employee’s evidence.”

Johnson v. Heckman Water Res. (CVR), Inc., 758 F.3d 627, 630 (5th Cir. 2014)

(quoting Harvill, 433 F.3d at 441) (other citation omitted).

First, “[a]n employee who claims that he was not paid this overtime rate ‘has

the burden of proving that he performed work for which he was not properly

compensated.’” Viet v. Le, 951 F.3d 818, 822 (6th Cir. 2020) (quoting Anderson,

328 U.S. at 687); see also Harvill, 433 F.3d at 441. Then, if an employer does not

keep the statutorily required records, the employee may establish damages by

producing sufficient evidence to show the amount and extent of uncompensated
28
work as a matter of “just and reasonable inference.” Viet, 951 F.3d at 822 (citation

omitted). This relaxed burden “applies to damages questions only after an employee

has met the initial burden to ‘establish[ ] liability’ by showing that the employee

performed uncompensated overtime work.” Id. (citing O’Brien v. Ed Donnelly

Enterps., Inc., 575 F.3d 567, 603 (6th Cir. 2009), abrogated on other grounds

by Campbell-Ewald Co. v. Gomez, 577 U.S. 153, 162 (2016); Carmody v. Kan. City

Bd. of Police Comm’rs, 713 F.3d 401, 406 (8th Cir. 2013)). Thus, “the ordinary

burden of proof governs the threshold question of whether the plaintiff worked

overtime at all.” Id. Under the “just and reasonable inference” relaxed standard of

damages, “a plaintiff need not prove ‘the precise extent of uncompensated work,’

though he must present more than ‘unsubstantiated assertions.’” Flores, 73 F.4th at

362 (citations omitted); see also White, 2024 WL 3181455, at *4. Whether an

employee is exempt from overtime pay is an affirmative defense, which the

employer has the burden to prove. See Leal v. Magic Touch Up, Inc., 855 F.App’x

924, 927 (5th Cir. 2021).

Application

In support of his issues, Schoonewolff challenges the legal and factual

sufficiency of the evidence supporting the trial court’s take nothing judgment. He

expressly challenges Findings 17 through 20. He also by implication challenges

29
Finding 16 by arguing that he established he worked overtime hours for which he

was not compensated.

Schoonewolff had the initial burden to first prove by a preponderance of the

evidence that he has in fact performed work for which he was improperly

compensated. See Viet, 951 F.3d at 822; see also Harvill, 433 F.3d at 441. Then, if

he meets his burden and if his employer fails to provide accurate time records, he

must produce sufficient evidence to show the amount and extent of that work as a

matter of just and reasonable inference. See Viet, 951 F.3d at 822; see also Harvill,

433 F.3d at 441. Accordingly, in his legal sufficiency challenge to the trial court’s

factual findings, he “must demonstrate on appeal that the evidence establishes, as a

matter of law, all vital facts” supporting the issues. See Dow Chem. Co., 46 S.W.3d

at 241 (citation omitted). We first examine the record for evidence that supports the

findings, while ignoring all evidence to the contrary. See id.; see also Sterner, 767

S.W.2d at 690.

In Findings of Fact 16 and 17, the trial court determined that Schoonewolff

failed to present sufficient evidence that (1) he performed work for defendants for

which he was not compensated and (2) for the court to draw a reasonable inference

as to the specific amount of time Plaintiff worked each day for the defendants.

Although characterized as factual findings by the trial court, Findings 16 and 17 are

30
conclusions of law, and we will review them accordingly. We first address Findings

of Fact 18 through 20.

1. Findings of Fact 18 through 20

Schoonewolff first challenges Finding 18, “that Plaintiff’s testimony was

inconsistent as to the hours he worked and failed to provide proper details for the

overtime worked or specified amounts.” Schoonewolff testified that he could not

provide a date that he worked overtime and was not paid, because “it was practically

all during the time that I worked with him.” Ultimately, he testified that he worked

overtime every day for nineteen years. Schoonewolff said he worked every day from

2 a.m. to 11 p.m. after he came from Port Arthur to Tuffy’s, although he immediately

contradicted this and said he did not work every day from 2 a.m. to 11 p.m.

Elsewhere, he testified that he worked from 2 a.m. to 11 p.m. most days. He

inconsistently testified that he slept three hours per night, then on average four to

five hours per night. He also provided conflicting testimony about the length of

certain breaks and naps he took, and testified that he went and bought breakfast but

stayed “no more than 20 minutes[,]” then later claiming he stayed no longer than an

hour.

Schoonewolff also provided inconsistent testimony about his alleged weekend

work. He testified that he worked almost every Saturday, that he stated he worked

weekends only “sometimes,” and he testified he worked two Saturdays per month.

31
Schoonewolff testified he worked every Sunday preparing the food for Monday,

which took four to five hours, but elsewhere, he testified that he worked on the

weekends “[f]rom time to time.”

He also offered conflicting testimony about his pay. Schoonewolff initially

denied he was paid a salary and claimed the amount he received each week varied.

Yet, he immediately contradicted this testimony and said he received the same

amount every week. Schoonewolff also testified his pay was never reduced for

rainouts or holidays they did not work. When he quit, he said he made $800 per

week. He testified he “did take a nap here and there” but denied it was every day,

and he agreed his salary was never reduced for the naps.

We first examine the record for evidence that supports the trial court’s finding

that Schoonewolff provided inconsistent testimony, while ignoring all evidence to

the contrary. See Dow Chem. Co., 46 S.W.3d at 241 (citation omitted); see also

Sterner, 767 S.W.2d at 690. Only if no evidence supports the finding, then will we

examine the record to determine whether the contrary proposition is established as a

matter of law. See Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767 S.W.2d at

690. As outlined above, some evidence supports Finding 18, so legally sufficient

evidence supports the trial court’s finding. See Dow Chem. Co., 46 S.W.3d at 241;

Sterner, 767 S.W.2d at 690. The evidence supporting this finding was also factually

sufficient, as it is not so contrary to the overwhelming weight of the evidence as to

32
be clearly wrong and unjust. See Cain, 709 S.W.2d at 176; Unimex Logistics, 2018

WL 2339623, at *4. Although Schoonewolff provided some evidence supporting his

claim, he provided contradictory testimony about his duties, when he worked certain

hours, and whether he was salaried.

Schoonewolff next challenges Finding 19, in which the trial court found

“Plaintiff’s contention that he would work from 2:00 a.m. until 11:00 p.m. leaving

him three hours to sleep each night for three years” was “not believable and

unreliable in light of the evidence of the details of his work and the evidence that he

was not working in the restaurant during its normal restaurant hours.” The trial court

is the sole judge of the witnesses’ credibility and weight to give their testimony and

can resolve conflicts in evidence. See City of Keller, 168 S.W.3d at 819–21; Garza,

164 S.W.3d at 625 (Tex. 2004); see also Morrell, 2022 WL 959943, at *12. In

addition to the inconsistencies in Schoonewolff’s own testimony noted above, other

witnesses testified that it was impossible for him to work the hours he stated,

particularly at Tuffy’s, since they used a shared kitchen. Choate and Josette testified

that they were in the restaurant during periods he claimed to have worked and did

not see him. They also testified, as did Schoonewolff, that the restaurant and catering

used a single kitchen. Josette and Choate explained that the restaurant staff arrived

at 8:00 or 8:30 a.m., and Schoonewolff had to be done with catering, so the restaurant

staff could use the kitchen. Josette also testified the restaurant did not stop serving

33
until 9:00 p.m., and she was there almost every night closing everything out until

11:00 p.m. and did not see Schoonewolff working.

On appeal, Schoonewolff points to Choate’s testimony and Josette’s

testimony that some weeks he probably worked some weekends and more than forty

hours but was not paid overtime. He also points to his pay stubs showing forty hours

a week. Yet, he fails to provide context surrounding this testimony. Witnesses

consistently testified that Schoonewolff controlled his own schedule, and he did not

have a set work schedule. Choate testified that were times Schoonewolff may have

worked on the weekends, if he did not complete his duties during the week. Choate

also disagreed that between 2017 until Schoonewolff quit that he worked more than

forty hours per week. Also, although Josette testified that he may have occasionally

worked more than forty hours, he was paid “extra” for that as a bonus though not

necessarily at an hourly rate. She also explained that Schoonewolff did not even

work eight hours a day routinely unless they had a big catering job. Choate and the

CPA testified his pay stubs always showed forty hours a week and no overtime,

because he received a salary.

The trial court, as the factfinder, was free to believe Josette and Choate over

Schoonewolff, and we do not substitute our judgment for the trial court’s. See

Golden Eagle Archery, 116 S.W.3d at 761; see also Morrell, 2022 WL 959943, at

*12. We have examined the record for evidence that supports the trial court’s finding

34
that Schoonewolff’s testimony about the hours he worked was unreliable and

unbelievable considering the other evidence, while ignoring all evidence to the

contrary. See Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767 S.W.2d at 690. Having

done so, we conclude some evidence supports Finding of Fact 19, thus, legally

sufficient evidence supports the trial court’s finding. See Dow Chem. Co., 46 S.W.3d

at 241; Sterner, 767 S.W.2d at 690. Despite Schoonewolff’s testimony about his

overtime work, multiple witnesses testified that Schoonewolff oversaw his own

schedule, that he could not have worked the hours he claimed since he could not

work when restaurant employees were using the kitchen, and that he rarely worked

eight hours. The evidence supporting this finding was also factually sufficient, as it

is not so contrary to the overwhelming weight of the evidence as to be clearly wrong

and unjust. See Cain, 709 S.W.2d at 176; Unimex Logistics, 2018 WL 2339623, at

*4.

We now address Finding of Fact 20 that Schoonewolff could complete his

work in a time frame that did not require overtime hours. Choate testified that when

he took over the catering division after Schoonewolff quit, it only took him three to

four hours to do all the work Schoonewolff did. He also testified that there was “[n]o

way” it should take eight hours to do the work. Choate also disputed that

Schoonewolff’s claim that he performed work for the restaurant, testifying that he

had “[z]ero” restaurant duties during the relevant period and only worked on

35
catering. Josette testified that the foods he claimed to prepare for the restaurant were

things they had not cooked in the five years before he quit, although he had cooked

those in some of their earlier restaurants. This was consistent with Josette’s

testimony that she did not believe Schoonewolff was working eight hours per day

except if there was a big catering order and she wanted him to use the time clock.

She explained that if Schoonewolff streamlined his time, he would not have worked

over eight hours per day in a standard week. Josette and Choate agreed while there

may have been some occasions Schoonewolff worked more than forty hours per

week, they paid him “extra” or a “bonus” for that work. Josette testified that

Schoonewolff worked at “his leisure,” but they staffed the restaurant in such a way

as to avoid paying overtime, so if he had been working all those hours, she or Choate

would have structured Schoonewolff’s schedule. They also testified that he napped

and although he was on the premises, he spent much of his day not working.

As described elsewhere, Schoonewolff’s testimony was inconsistent with

Josette’s and Choate’s. The trial court, as the factfinder, was free to weigh the

witnesses’ credibility and resolve conflicts in the testimony, and we do not substitute

our judgment for the trial court’s. See Golden Eagle Archery, 116 S.W.3d at 761;

see also Morrell, 2022 WL 959943, at *12. We have examined the record for

evidence that supports the trial court’s finding that Schoonewolff could complete his

work in a time frame that did not require overtime hours, while ignoring all evidence

36
to the contrary. See Dow Chem. Co., 46 S.W.3d at 241; see also Sterner, 767 S.W.2d

at 690. Having done so, we conclude some evidence supports Finding of Fact 20,

and Schoonewolff, and legally sufficient evidence supports the trial court’s finding.

See Dow Chem. Co., 46 S.W.3d at 241; Sterner, 767 S.W.2d at 690. Here, while

Schoonewolff testified he had to work long hours to complete his duties, other

evidence, including testimony from Choate and Josette contradicts this. The

evidence supporting this finding was also factually sufficient, as it is not so contrary

to the overwhelming weight of the evidence as to be clearly wrong and unjust. See

Cain, 709 S.W.2d at 176; Unimex Logistics, 2018 WL 2339623, at *4.

2. Conclusions of Law

We now turn to Findings of Fact 16 and 17, which are in substance

conclusions of law. Those conclusions are as follows:

16. The court found that Plaintiff Arturo Schoonewolff failed to provide
sufficient evidence that he performed work for the Defendants for
which he was not compensated.
17. The court found there was insufficient evidence presented by
Plaintiff for the court to draw a reasonable inference as to the specific
amount of time Plaintiff worked each day for Defendants.

We review these conclusions of law de novo. See BMC Software Belg., 83 S.W.3d

at 794; Morrell, 2022 WL 959943, at *12 (citation omitted). Even if a trial court’s

conclusion is erroneous, we will not reverse if the trial court rendered the proper

judgment. See BMC Software Belg., 83 S.W.3d at 794; see also Whittington, 384

S.W.3d 766, 779 n.10.
37
In support of issue three that the evidence conclusively established his claim

for unpaid overtime under the FLSA, Schoonewolff complains that the trial court

improperly applied the test when an employer fails to provide adequate records and

failed to make a “just and reasonable inference.” In essence, he argues that the trial

court erroneously placed the burden on him to show the details and specific amount

of overtime worked, although Appellees failed to keep proper records.

Schoonewolff, as the employee, first had the burden to prove by a

preponderance of the evidence that he performed work for which he was not properly

compensated. See Harvill, 433 F.3d at 441; Johnson, 758 F.3d at 630. Only if he did

so, would the more relaxed standard of damages as a matter of “just and reasonable

inference” apply. See Viet, 951 F.3d at 822. The trial court determined that

Schoonewolff failed to provide sufficient evidence to meet his initial burden of

showing that he performed work for Appellees for which he was not compensated.

As explained above, the trial court’s Findings of Fact are supported by the evidence,

and they include that Schoonewolff’s testimony was unbelievable and unreliable.

While he contends Choate’s testimony and Josette’s testimony conclusively proves

that he performed work for which he was not compensated, we disagree. While they

testified that there may have been some weeks Schoonewolff worked more than forty

hours, Choate disputed this occurred during the relevant time. Further, both Choate

and Josette asserted that on the rare occasions he worked more than a standard work

38
week, he was paid a bonus. The findings depended on the trial court’s credibility

determinations of the witnesses, and it was free to believe Choate’s and Josette’s

testimony while finding Schoonewolff’s unbelievable. See Golden Eagle Archery,

116 S.W.3d at 761; see also Morrell, 2022 WL 959943, at *12.

It was from these factual findings that the trial court drew the conclusion

Schoonewolff did not provide sufficient evidence to show that he performed work

for the Defendants for which he was not compensated. Accordingly, we determine

that the trial court’s conclusion that Schoonewolff failed to provide sufficient

evidence to meet his initial burden of proving by a preponderance of the evidence

that he performed work for which he was not compensated is not erroneous. Since

Schoonewolff failed to meet his initial burden, we need not reach the conclusion of

law stated in Finding 17 that he provided insufficient evidence for the court to draw

a reasonable inference of the specific amount of time he worked each day, since the

relaxed damages standard of “just and reasonable inference” only applies if

Schoonewolff met his initial burden under the traditional standard. See Viet, 951

F.3d at 822.

We overrule issues two and three. Having determined that Schoonewolff

failed to meet his initial burden of establishing liability under the FLSA, we need

not reach issue one regarding the affirmative defense that Schoonewolff was an

exempt employee. See Leal, 855 F.App’x at 927 (treating whether an employee is

39
exempt as an affirmative defense); see also Tex. R. App. P. 47.1(requiring appellate

courts to hand down opinions as brief as practicable but addressing all issues

necessary to appeal’s resolution).

CONCLUSION

Having overruled issues two and three and having determined that we need

not reach issue one, we affirm the trial court’s judgment.

AFFIRMED.

W. SCOTT GOLEMON
Chief Justice

Submitted on May 6, 2024
Opinion Delivered May 29, 2025

Before Golemon, C.J., Johnson and Wright, JJ.

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