                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH

                           NO. 02-11-00260-CV


AVONDA FOX, INDIVIDUALLY AND                        APPELLANT
AS NEXT FRIEND TO JACOB FOX

                                    V.

CARLA BROWN, IN HER OFFICIAL                        APPELLEES
AND INDIVIDUAL CAPACITY;
CRYSTAL YOUNG, IN HER
OFFICIAL AND INDIVIDUAL
CAPACITY; GEORGIA TRAYLOR,
IN HER OFFICIAL AND INDIVIDUAL
CAPACITY; LONA MATHIS, IN HER
OFFICIAL AND INDIVIDUAL
CAPACITY; AND MELODY NALLS,
IN HER OFFICIAL AND INDIVIDUAL
CAPACITY


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         FROM THE 48TH DISTRICT COURT OF TARRANT COUNTY

                                 ----------

                      MEMORANDUM OPINION1

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     1
     See Tex. R. App. P. 47.4.
      Appellant Avonda Fox appeals from the trial court’s grant of the plea to the

jurisdiction asserted by Appellees Carla Brown, Crystal Young, Georgia Traylor,

Lona Mathis, and Melody Nalls. Fox does not challenge the sole basis for the

trial court’s grant of the plea to the jurisdiction, and we therefore affirm.

      Fox brought this suit for wrongful death and negligence as next friend of

Jacob Fox, her son, after he died as a result of being left for a number of hours in

a closed van at his day care on July 20, 2006. The day care was licensed by the

Texas Department of Family and Protective Services through its Child Care

Licensing Division.

      Fox’s original petition named Appellees as defendants in their official and

individual capacities, as well as other individuals not involved in this appeal.

Appellees were all employees of the Child Care Licensing Division at the time of

Jacob’s death. Fox subsequently amended her petition to sue Appellees in their

individual capacities only.

      Appellees filed a third amended plea to the jurisdiction in which they

asserted that Fox’s claims should be dismissed for lack of standing on the

ground that the pleadings did not allege a causal connection between the injury

and conduct complained of because the injury was the result of the independent

action of a third party. Appellees also asserted that Fox’s claims against them

should be dismissed in accordance with subsections 101.106(a) and (e) of the

civil practice and remedies code.2

      2
       See Tex. Civ. Prac. & Rem. Code Ann. § 101.106 (West 2005).

                                           2
      In March 2011, the trial court granted Appellees’ plea to the jurisdiction,

and in April, the court entered final judgment dismissing all of Fox’s claims. The

order states that ―all claims against [Appellees] in their individual capacities only

regarding standing asserted in [Appellees’] Third Amended Plea to the

Jurisdiction are granted . . . , and any [Appellee] whose Plea is granted is

dismissed from this case with prejudice.‖ [Emphasis added.] Other defendants

not involved in this appeal were nonsuited. In its final judgment, the trial court

referenced this order, stating that after having granted Appellees’ third amended

plea to the jurisdiction, ―all claims against all parties to this litigation have now

been resolved.‖ Accordingly, the trial court ordered that Fox take nothing and

dismissed all of her causes of action with prejudice. Fox now appeals.

      In her only issue on appeal, Fox argues that section 101.106 as applied in

this case violates the open courts provision of the Texas Constitution.3 Fox did

not make this argument in the trial court,4 but she urges this court to consider it

nevertheless. Fox does not, however, challenge the trial court’s determination

that her claims fail for lack of standing.

      We may not reverse a judgment on appeal based on trial court error unless

we conclude that the error either probably caused the rendition of an improper

judgment or probably prevented the appellant from properly presenting the case

      3
       See Tex. Const. art. I, § 13.
      4
       See Tex. R. App. P. 33.1(a); Matter of D.T.M., 932 S.W.2d 647, 652 (Tex.
App.—Fort Worth 1996, no writ) (―Even constitutional arguments are waived at
the appellate level if issues were not before the trial court.‖).

                                             3
to the court of appeals.5 Even if the application of section 101.106 would have

violated the open courts provision in this case, the trial court did not actually base

its decision on that section. Because the trial court did not commit the error Fox

complains of, we cannot say that the error probably caused the rendition of an

improper judgment or probably prevented Fox from properly presenting her case

on appeal. Fox makes no argument that the trial court erred by dismissing her

claims on the basis of standing, and we are prohibited from making the argument

for her and from reversing the judgment on that ground.6 Accordingly, we are

compelled to overrule Fox’s sole issue.

      Having overruled Fox’s sole issue, we affirm the trial court’s judgment

dismissing Fox’s claims.




                                                    LEE ANN DAUPHINOT
                                                    JUSTICE

PANEL: DAUPHINOT, MEIER, and GABRIEL, JJ.

DELIVERED: December 15, 2011



      5
       See Tex. R. App. P. 44.1(a).
      6
       See Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (―It is
axiomatic that an appellate court cannot reverse a trial court’s judgment absent
properly assigned error.‖); Bankhead v. Maddox, 135 S.W.3d 162, 163–64 (Tex.
App.—Tyler 2004, no pet.) (―In its review of a civil matter, an appellate court has
no discretion to fabricate an issue not raised in the appellant’s brief, even though
the court may perceive that the ends of justice require such a course.‖).

                                          4
